Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing. 13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date. 13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions: (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller. (b) The Seller stipulates that there is full and adequate consideration for the license herein granted. (c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing. (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party). (e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days. (f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 2 contracts
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 86), Sale Agreement (Balcor Colonial Storage Income Fund 86)
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); prepaid or accrued (as the case may be) interest on the Existing Bond and Mortgage Documents, water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser5%; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the Closing Date, and credited to against the balance of the cash due at Closing. UtilitiesTo the extent any escrows or bond repayment deposits established in connection with the Bonds or Existing Bond and Mortgage Documents are not refunded to Seller at Closing, including water, sewer, electric, and gas the proceeds in said escrows shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period assigned to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller amounts thereof shall be reimbursed a credit to Seller at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled delinquent rent referred to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 12.2 below.
12.2. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of basic rent paid following the Closing Date so that Seller shall be responsible for by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser Property who is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent indebted under a lease for basic rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date and said Lease is not assigned to after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current basic rent shall be deemed a "Post-Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, Receipt" until such time as all such indebtedness is paid in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
full. Within ten (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logosSeller, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationeryreasonable efforts to collect all amounts which, business cardsupon collection, contracts or other documentswould constitute Post-Closing Receipts hereunder, and but shall not use the existing trade name in responding be liable to oral inquiries regarding the Properties except Seller for its failure to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovecollect same. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at the expense of Seller at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone number. upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller may also place a listing and/or advertisement in such publicationsaid additional Post-Closing Receipts, and in the event that Seller decides to place such a listing and/or advertisementSeller's audit discovers additional Post-Closing Receipts greater than $5,000.00, Seller Purchaser shall be entitled to a pro-rata credit for such portion of pay the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 12.2 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 2 contracts
Sources: Agreement of Sale (Balcor Realty Investors 85 Series I), Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. 13.1. Rents (exclusive of a) Non-delinquent rentsreal property taxes and any current installments on any improvement assessment liens, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to ▇▇▇▇▇-▇▇▇▇ bond payments and assumed by Purchaser similar assessments affecting the Real Property and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and any personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by affecting the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas Personal Property shall be prorated at Closing based on the most recent ascertainable dataavailable tax bills using a 30-day month and a 360-day year. Any increase in real property taxes and assessments arising out of the sale of the Real Property to Buyer (or its assignee), or a sale or change in ownership after the sale to Buyer, and any supplemental real property taxes and assessments arising out of any construction pertaining to the Real Property completed following the Close of Escrow shall be paid by Buyer when assessed, and Buyer shall indemnify Seller from and against all such taxes. Any supplemental real property taxes or private assessments arising out of any occurrence before the Close of Escrow shall be paid by Seller when assessed to the extent such taxes or assessments are attributable to any period before the Close of Escrow, and Seller shall pay at Closing indemnify Buyer from and against all such taxes and assessments. The parties’ indemnification obligations under this Section shall survive the bills therefor for Close of Escrow.
(b) Non-delinquent rentals and other charges payable by tenants shall be prorated based on the period updated Rent Roll delivered pursuant to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent theretoSection 5(c)(v). If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no Rentals are delinquent when payment thereof is more than thirty (30) days in advance in past due as of the ordinary course Close of business)Escrow. In addition, then Purchaser shall rentals from a tenant less than thirty (30) days past due will be charged considered delinquent if that tenant also has at least one month of rental more than thirty days past due (e.g. if a tenant has not paid its portion monthly rental for January of such payment at Closing. No proration shall be made a year, and assuming a date after February 1 for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermorethe Close of Escrow, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts due to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing January delinquency the rental for any utility deposits which the Seller has deposited with any utility company and which month of February also will be assigned to the Purchaser at Closingconsidered delinquent even though it is less than thirty ((30) days past due). Assessments payable in installments which are due subsequent to the Closing Date Escrow Holder shall be paid by Purchaser. If credit the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be security deposits held by Seller as shown on the basis of Rent Roll against the most recent ascertainable dataPurchase Price payable by Buyer. The Purchaser shall assume Seller's obligations under Rentals collected by Seller not shown on the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered updated Rent Roll and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated delinquent rentals collected by Buyer as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements hereafter provided shall be prorated by the parties outside of escrow as of the Closing Date so and paid to the entitled party as soon as practical from time to time as collected. After the Close of Escrow Buyer shall use its commercially reasonable efforts to collect any delinquent rentals, but Buyer shall not be required to file suit or evict a tenant. If, after making diligent efforts to collect delinquent rentals from any tenant or tenants, or ninety (90) days after the Close of Escrow, whichever first occurs, Buyer elects not to file a legal action against such tenant or tenants, Buyer shall notify Seller, and Seller may file a legal action or actions against such tenant or tenants for the delinquent rentals owing to Seller except that Seller shall not pursue an eviction remedy. Delinquent rentals collected by Buyer, net of the reasonable costs of collection (including attorney’s fees), shall be responsible applied first against rent accruing for the month in which the Closing occurs, then against any costs associated therewith prior other amounts owing Buyer, then against other amounts most overdue. Percentage rent, if applicable and if any, for the rental period including Closing shall be prorated upon receipt, based upon the tenant’s sales for the portion of the lease year allocable to Seller’s and Buyer’s respective ownership of the Property.
(c) No later than two (2) business days before the Close of Escrow, the parties will prorate outside of escrow on an accrual basis all known deposits and operating expenses concerning the Property, refundable deposits held by any governmental agency or utility that will be assigned to Buyer at the Close of Escrow. If any of the foregoing cannot be apportioned at the Closing Date and Purchaser because of the unavailability of the amounts which are to be apportioned, such items shall be responsible for any costs associated therewith arising from apportioned and paid to the entitled party as soon as practicable after the Closing Date, but in no event later than ninety (90) days after the Closing Date. All prorations described in this Agreement (except prorations for real Sewer, gas, electric, telephone and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Insteadother utility charges, to the extent that Purchaser is able to collect said delinquenciesnot reimbursed or paid directly by tenants, the Purchaser shall not be prorated but shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior paid by Seller to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingutility company.
(d) In Buyer and Seller shall take all steps necessary to effectuate the event any third party (such transfer of all utilities presently in Seller’s name into Buyer’s name as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by Close of Escrow. Where necessary, Buyer will post deposits with the Seller to said third party)utility companies.
(e) Purchaser's temporary license set forth in this paragraph All prorations and adjustments shall expire be made as of 12:00 midnight on the date(s) set forth above. If Purchaser continues to use day immediately preceding the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysClosing Date.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Prorations. 13.13.2.1. Rents The following shall be apportioned with respect to the Property as of the end of the Transition Period (exclusive as defined in Section 6.1.1), as if Purchaser were vested with title to the Property as of delinquent the end of the Transition Period.
(a) rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, as and when collected (the term “rents” as used in this Agreement includes all payments due and payable by Tenants under the Leases);
(b) taxes (including personal property taxes on the Personal Property) and assessments levied against the Property;
(c) payments under the Contracts;
(d) gas, electricity and other utility charges for which Seller is liable, if any, such items)charges to be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing; and
(e) any other accrued or prepaid operating expenses which are reimbursable by the tenants for the period prior Property and, to the Closing Date less extent customarily prorated between a purchaser and a seller in the Commonwealth of Massachusetts, any other items pertaining to the Property.
3.2.2. Notwithstanding anything contained in the foregoing provisions:
(a) At Closing, Seller shall deliver to Purchaser any security deposits and prepaid rents (for periods on or after the end of the Transition Period) under the Leases or credit to the account of Purchaser the unapplied amount previously paid by of such security deposits and prepaid rents. All prepaid rents covering the tenants period of time commencing on or after the end of the Transition Period shall be credited delivered by Seller to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. Purchaser on the Closing Date, and credited or Purchaser may elect to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other such prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full Any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and adequate consideration assessments for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but current year have not been paid before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisementClosing, Seller shall be entitled charged at Closing an amount equal to a pro-rata credit for such that portion of the cost of such listing and/or advertisement attributable taxes and assessments which relates to the period after Closing.
(d) In before the event any third party (such as telephone company or billboard company) makes a separate charge for end of the use of such listings or advertising subsequent to the Closing Date, then Transition Period and Purchaser shall be responsible pay the taxes and assessments prior to pay same subsequent their becoming delinquent. Any such apportionment made with respect to a tax year for which the Closing Date (but no such payment shall accrue to the benefit of the Seller tax rate or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth aboveassessed valuation, then Purchaser or both, have not yet been fixed shall be liable for based upon the most recent ascertainable, and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) be re-prorated post-Closing once final taxes and assessments for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional dayshave been determined.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Global Partners Lp)
Prorations. 13.1. Rents ▇▇▇ts (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits which are refundable under the leases; escrow and/or impounds held by the Lender (which will be assigned to and assumed by Purchaser and credited to Purchaser at ClosingSeller); interest on the First Note; water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the later of the Closing Date or the actual date of the closing of this transaction ("Proration Date"), and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled delinquent rent referred to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 13.2 below.
13.2. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of basic rent paid following the Closing Date so that Seller shall be responsible by any tenant of the Property who is indebted under a lease for any costs associated therewith period prior to and including the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final a "Post-Closing Receipt" until such time as prorated on all such indebtedness is paid in full. within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay to Seller an amount equal to the amount such Post-Closing Date) Receipt exceeds the amount currently due by the tenant paying such Post-Closing Receipt under its lease. Purchaser shall be subject use its best efforts to postcollect all amounts which, upon collection, would constitute Post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; Receipts hereunder provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date Purchaser shall not be prorated. Instead, required to the extent that Purchaser is able instigate litigation to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the SellerPost-Closing Receipts. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time Within 120 days after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone number. upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller may also place a listing and/or advertisement in such publication, said additional Post-Closing Receipts and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 13.2 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive a) The following shall all be prorated as of delinquent 12:01 a.m. on the date of Closing, on the basis of a 365-day year: (i) rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in all other income from the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityProperty, if any, for including, without limitation, any additional charges, prepaid rent, if any, and any other expenses payable under the Leases, if any, all as and when actually collected (whether such itemscollection occurs prior to, on, or after the Closing Date); operating expenses which are reimbursable by the tenants (ii) real property taxes and assessments for the year in which the Closing occurs, (iii) water, sewer and utility charges, (iv) amounts payable under any service contracts for the month in which the Closing occurs and prior months, (v) annual permits and/or inspection fees (calculated on the basis of the period covered), and (vi) any other expenses relating to the operation and maintenance of the Property. For three (3) months following the Closing, Buyer shall include all rent arrearages, if any, on Buyer's monthly invoices or billings to tenants ▇▇▇ ▇▇omptly deliver to Seller any such rent arrearages that relate to periods prior to the Closing if and when collected by Buyer; PROVIDED, HOWEVER, that Rents received by Buyer after the Closing Date less any amount previously paid by the tenants shall be credited first applied to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on Rents accruing after the Closing Date, and credited then to the balance of the cash due at ClosingRents accruing prior thereto. Utilities, including water, sewer, electric, and gas Buyer shall be prorated at under no obligation to recover for the benefit of Seller any unpaid Rents owing by tenants for periods prior to Closing based on the most recent ascertainable dataDate. Seller shall pay at Closing have the bills therefor for the period to and including right before the Closing, and the Purchaser shall pay the utility bills therefor to take such action as Seller deems appropriate to recover any unpaid Rents for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by and after the Seller. date of Closing, Seller may use whatever lawful means are pursue any and all remedies available to Seller in law or equity to collect any delinquencies up to and until the day recover unpaid Rents for periods prior to the date of Closing. The amount of any security or other deposits as actually collected, IF ANY, or similar fees paid by tenants under the Leases, as to the extent actually collected, shall be credited against the cash portion of the Purchase Price; accordingly, Seller shall retain the deposit and/or similar fees paid by tenants under the Leases, as actually collected, and Buyer shall be responsible for handling all security deposits of the tenants of the Property in accordance with the Leases and applicable law. Seller shall retain all utility deposits, if any. Seller and Buyer hereby agree that if any of the aforesaid prorations cannot be calculated accurately on the Closing Date, provided that Seller then the same shall not agree to reduce rents for any period of time be calculated within thirty (30) days after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date Date, or as soon as sufficient information is available to permit the parties to accurately calculate such proration(s), and either party owing the other party a sum of money based on such subsequent proration(s) shall pay said Lease is not assigned sum to the Purchaser. Furthermoreother party within ten (10) days after such calculation is made; PROVIDED, HOWEVER, that the Seller tax prorations and assessments referenced in Section (ii) herein shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent be final as of the Closing Date.
13.3. To Notwithstanding anything to the contrary contained herein, to the extent it is reasonably possible for any of the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which foregoing Property-level expenses are the property responsibility of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties Tenant pursuant to the following terms of the CitiCorp Lease, then such expense items shall NOT be prorated --- between Seller and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerBuyer at Closing.
(b) The Seller stipulates that there is full and adequate consideration shall pay the premium for the license herein granted.
(c) Purchaser Title Policy without extended coverage or endorsement and without any additional premium to delete the so-called "survey exception," if any. Buyer shall make arrangements with pay the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date premiums for any publication in endorsements to the Title Policy which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expenseBuyer requests. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller Escrow fees shall be entitled to a pro-rata credit for such portion split evenly between Buyer and Seller each paying half. Recording charges, transfer taxes and any other expenses of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge escrow for the use of such listings or advertising subsequent to the Closing Date, then Purchaser sale shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed paid by the Seller to said third party).
(e) Purchaser's temporary license set forth Buyer. All costs and charges described in this paragraph shall expire on be paid at Closing. Any bills received after the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser Closing and not previously prorated in escrow shall be liable for divided as provided herein, and shall pay to be paid promptly upon receipt of a bill therefor. Seller shal▇ ▇▇y for the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws costs of the state where such Property is located Survey. Buyer shall pay any and all taxes related to prevent such unauthorized any change in use or to recover any damages authorized by such lawsof the Property.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Prorations. 13.1Purchaser and Seller shall apportion as of midnight of the day preceding the Closing, the items hereinafter set forth. Rents Any errors or omissions in computing apportionments at Closing shall be promptly corrected. The obligations set forth in this Section 14 shall survive the Closing. The items to be adjusted are:
14.1.1. City ad valorem taxes and other assessments for the tax year in which the Closing occurs.
14.1.2. all base rent, percentage rent and additional rent and similar charges to the extent collected by Seller. Any base rent, percentage rent, additional rent or other charges received from a Tenant after the Closing shall be applied in the following order of priority:
1. First, to the rents owing for the calendar month in which the Closing occurred;
2. Second, to any rents then owing for any calendar month or months following the calendar month in which the Closing occurred; and
3. Third, to rents owing for any calendar month or months preceding the calendar month in which the Closing occurred until the Tenant, under the applicable Lease, is current. For a period of six (exclusive of 6) months after the Closing, Purchaser shall ▇▇▇▇ Tenants for all amounts due under their Leases accruing prior to the Closing (including, without limitation, base rent, additional rent, percentage rent or other Tenant charges for the year 2012) and shall use reasonable efforts to collect from Tenants any base rent, additional rent, percentage rent or other Tenant charges owing with respect to the period prior to the Closing. To the extent delinquent amounts for base rents, but including prepaid additional rents); prepaid associations dues, refundable security deposits (which will be assigned to percentage rents and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants other tenant charges for the period prior to the Closing (“Delinquent Rents”) are collected by Purchaser, subject to clauses 1, 2 and 3 above, such amounts, net of reasonable costs of collection, including without limitation, reasonable attorney’s fees, shall be paid to Seller no later than ten (10) business days following the date on which such amounts have been received by Purchaser or its agent. Purchaser shall not be obligated to expend any funds or commence legal proceedings to collect any Delinquent Rents. In no event shall Seller commence or pursue any legal proceedings against any Tenant after the Closing other than actions against Key Tenants for non-payment of rent. Any such action must be commenced within sixty (60) days after Closing, and Seller shall not have the right to seek eviction. Further, in the event Seller commences any such action and the applicable Tenant names Purchaser as a third party defendant or otherwise causes Purchaser to be named in any such action, Seller shall indemnify and defend Purchaser from such claims except with respect to any claims asserted by such Tenant relating to matters arising after the Closing.
(a) Purchaser shall be entitled to a prorata portion of such percentage rent payment based on the number of days within the applicable percentage rent fiscal year period that Purchaser owned the Project and (b) Seller shall be entitled to a prorata portion of such percentage rent payment based on the number of days within the applicable percentage rent period that Seller owned the Project. No later than one (1) year after the Closing Date less (the “Final Adjustment Date”), Seller and Purchaser shall make a final adjustment in accordance with the provisions of this Section 14.1 of percentage rent and other items of additional rents for which final adjustments or prorations could not be determined at the Closing, if any, because of the lack of actual statements, bills or invoices for the current period, the year end adjustment of common area maintenance, taxes and like items, the unavailability of final sales figures or amounts for percentage rent or any amount previously other reason. Except to the extent otherwise provided in Section 14.1.3, any net adjustment in favor of Purchaser or Seller is to be paid in cash by the tenants other no later than ten (10) business days after such final adjustment has been made.
14.1.3. To the extent Tenants pay monthly estimates of common area maintenance charges, central plant charges, taxes and similar expenses (collectively, “Charges”) with an adjustment at the end of each fiscal year applicable to Charges, they shall be credited prorated in accordance with this Section. Until the adjustment described in this Section is made, all amounts received by Seller as interim payments of Charges before the Closing Date shall be retained by Seller, except that all interim payments received by either party for the month in which the Closing Date occurs shall be prorated as between Seller and Purchaser based upon the number of days in that month and the party receiving the interim payment shall remit to (if received on or after the Closing Date) or credit (if received before the Closing Date) the other party its proportionate share. All amounts received by Purchaser as interim payments of Charges on or after the Closing Date shall be retained by Purchaser until year end adjustment and determination of Seller’s allocable share thereof except to the extent provided in Section 14.1.2 above. No later than the Final Adjustment Date, Seller’s allocable share of actual Charges for Leases in effect as of the Closing Date shall be determined by multiplying the total payments due from each Tenant for such fiscal year (the sum of estimated payments plus or minus year end adjustments) by a fraction, the numerator of which is Seller’s actual cost of providing common area maintenance services and taxes (as the case may be) prior to the Closing Date (within that portion of the fiscal year prior to the Closing Date in which the applicable Lease is in effect), and the denominator of which is the cost of providing such services and paying such taxes for the entire fiscal year (or that portion of the fiscal year in which the applicable Lease is in effect). If, on the basis of amounts actually incurred and the estimated payments received by Seller, Seller has retained amounts in excess of its allocable share, it shall remit, within thirty (30) days after notice from Purchaser of the excess owed Purchaser, such excess to Purchaser. If, on the basis of the foregoing amounts, Seller has retained less than its allocable share (the “Seller Shortfall”), Purchaser shall use reasonable efforts for a period of ninety (90) days after the Final Adjustment Date to collect the Seller Shortfall from the Tenants of the Property and, to the extent collected by Purchaser, Purchaser shall promptly remit the Seller Shortfall, net of reasonable costs of collection, including without limitation, reasonable attorney’s fees, to Seller; and other similar items . Purchaser shall not be obligated to expend any funds or commence legal proceedings to collect any Seller Shortfall. In no event shall Seller commence any legal proceedings against any Tenant after the Closing with respect to any Seller Shortfall. In the event there is a dispute with any Tenant relating to Charges billed by Seller relating to the period prior to the Closing Date, Seller shall be adjusted ratably responsible for resolving such dispute with such Tenant and, if it is determined that credits are due to such Tenant with respect to such charges, Seller shall remit such amount either to the Purchaser or directly to the Tenant within ten (10) days after determination thereof. In the event there is a dispute with any Tenant relating to Charges billed by Purchaser relating to the period after the Closing Date, Purchaser shall be responsible for resolving such dispute with such Tenant and, if it is determined that credits are due to such Tenant with respect to such charges, Purchaser shall remit such amount to the Tenant within ten (10) days after determination thereof. Notwithstanding anything to the contrary provided in the preceding paragraph, Seller shall be entitled to receive and retain all reconciliation payments made by Tenants with respect to Charges for the calendar years preceding the calendar year of Closing, and shall be responsible for any amounts owed to Tenants in connection with the final reconciliation of Charges for such prior calendar years. If any such reconciliation payment with respect to Charges for a calendar year preceding the year in which the Closing occurs is received by Purchaser after the Closing, Purchaser shall remit such payment to Seller within ten (10) business days after receipt. If any Tenant which is owed a refund with respect to Charges for a calendar year preceding the calendar year of Closing deducts or sets off such amount against rents or other charges owed by such Tenant after the Closing, Seller shall remit such amount to Purchaser promptly following the occurrence of such set off or deduction.
14.1.4. All other income and all operating expenses of the Project for the assumed Contracts and public utility charges and charges and/or payments under the REAs with respect to the Project shall be prorated at the Closing effective as of 11:59 p.m. on the Closing Date, and credited appropriate cash adjustments shall be made by Purchaser and Seller. Seller and Purchaser shall cooperate to arrange for final utility readings as close to the balance Closing Date as possible and the issuance of a final ▇▇▇▇ to Seller with Purchaser being designated the billing party in lieu of Seller for all utilities that may be in the name of Seller from and after the Closing Date. Notwithstanding anything herein to the contrary, the management agreement and leasing agreement, if any, for the Property shall be terminated as of the cash due Closing date and there shall be no apportionment of any fees or charges thereunder.
14.1.5. At Closing, any prepaid rents and security deposits under the Leases (together with any interest accrued thereon) shall be transferred to Purchaser either directly or by way of a credit in favor of Purchaser.
14.1.6. If, at Closing, the Property or any part thereof shall have been affected by an assessment or assessments, which are or may become payable in annual installments, of which the first installment is then a charge or lien, then for the purposes of this Agreement, all the unpaid installments of any such assessment due and payable in calendar years prior to the year in which the Closing occurs shall be paid by Seller and all installments becoming due and payable after the Closing shall be assumed and paid by Purchaser, except, however, that any installments which are due and payable in the calendar year in which the Closing occurs shall be adjusted pro rata. UtilitiesHowever, including waterif such an assessment or assessments shall be due in one lump sum payment, sewerthen to the extent such assessment(s) is for improvements in place as of the date of this Agreement, electricthen such assessment(s) shall be paid by Seller but if such assessment(s) is for improvements to be made subsequent to the date of Closing, then the same shall be paid by Purchaser.
14.1.7. All unpaid tenant improvement costs or allowances, free rent periods or rental abatements, concessions and other inducements and all brokerage commissions relating to the Leases listed on Schedule “1.5” hereto with respect to the current term of any Leases and space demised to such Tenants as of the date hereof, and gas any amounts owing by Seller hereunder or pursuant to Section 9.2 hereof, shall be prorated the obligation of Seller. Except as provided in Section 25 hereof with respect to Leases of Suite L and Suite G5, Purchaser shall be responsible for all tenant improvement costs or allowances, free rent periods or rental abatements, concessions and other inducements and all brokerage commissions relating to any Leases entered into after the Effective Date with the approval of Purchaser, as well as all tenant improvement costs or allowances, free rent periods or rental abatements, concessions and other inducements and brokerage commissions relating to or arising from any renewal, expansion, or extension of any of the existing Leases listed on Schedule “1.5” hereto. Seller’s obligations described in this Section either (i) shall be paid at Closing based on the most recent ascertainable data. (or paid when due if sooner) by Seller shall pay with evidence of payment delivered to Purchaser at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the or (ii) Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30amount(s) days in advance in the ordinary course of business)not paid.
14.1.8. At Closing, then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made receive a credit against the Purchase Price for utility expenses that are separately metered (i) amounts paid to Seller by Tenants, merchants and paid directly by tenants other associations for promotional funds, and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's addressother similar contributions or payments, if such a procedure is possible any and convenient and mutually acceptable to Purchaser and Seller. (ii) all funds held by Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Propertiesoutstanding gift certificates, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Credit Property Trust Iv, Inc.)
Prorations. 13.1. Rents (exclusive of delinquent rentsAll real property taxes, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated ---------- taxes, ad valorem obligations and similar Taxes imposed on a "net" basis (i.e. adjusted ---------- periodic basis, in each case levied with respect to the Rooftop Assets, other than conveyance taxes provided for all tenants' liability, if anyin Section 2.5, for a taxable period which includes (but does not end on) the Closing Date (collectively, the "Apportioned Obligations") shall be apportioned between Seller and Purchaser as of the Closing Date based on the number of days of such items); operating expenses which are reimbursable by the tenants for the taxable period occurring prior to the Closing Date less any amount previously paid by (the tenants "Pre-Closing Tax Period") and the number of days of such taxable period occurring on or after the Closing Date (the "Post-Closing Tax Period"). Seller shall be credited liable for the proportionate amount of such Taxes that is attributable to Seller; and other similar items shall be adjusted ratably the Pre-Closing Tax Period. As soon as of 11:59 p.m. on practical after the Closing Date, Seller and credited Purchaser shall present a statement for reimbursement for such Taxes with respect to which each is entitled to reimbursement under this Section 15.4(a), together with such supporting evidence as is reasonably necessary to calculate the proration amount. The proration amount shall be paid by the party owing it to the balance other within ten (10) days after delivery of such statement. Thereafter, Seller shall notify Purchaser upon receipt of any ▇▇▇▇ for such Taxes relating to the cash due at Closing. UtilitiesRooftop Assets, including water, sewer, electricpart or all of which are attributable to the Post- Closing Tax Period, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period promptly deliver such ▇▇▇▇ to and including the Closing, and the Purchaser who shall pay the utility bills therefor same to the appropriate Taxing authority, provided that if such ▇▇▇▇ covers the Pre-Closing Tax Period, Seller shall also remit to Purchaser prior to the due date of assessment payment the proportionate amount of such ▇▇▇▇ that is attributable to the Pre-Closing Tax Period. In the event that either Seller or Purchaser shall thereafter make a payment for all periods subsequent thereto. If the utility company will not issue separate billswhich it is entitled to reimbursement under this Section 15.4(a), the Purchaser other party shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any make such utilities (so long as reimbursement promptly but in no more event later than thirty (30) days in advance in after the ordinary course presentation of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If statement setting forth the amount of any reimbursement to which the presenting party is entitled along with such supporting evidence as is reasonably necessary to calculate the amount of reimbursement. Any payment required under this Section and not made within ten (10) days of delivery of the items statement shall bear interest at the rate per annum determined, from time to be prorated is not then ascertainabletime, under the adjustments thereof shall be on the basis provisions of Section 6621(a)(2) of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) Code for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysuntil paid.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pinnacle Holdings Inc)
Prorations. 13.1. Rents (exclusive of delinquent a) Rents, including, without limitation, percentage rents, but including prepaid rentsif any, and any additional charges and expenses payable under tenant leases, all as and when actually collected (whether such collection occurs prior to, on or after the Closing Date); prepaid associations duesreal property taxes and assessments; water, refundable security deposits sewer and utility charges; amounts payable under any service contracts; annual permits and/or inspection fees (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closingcalculated on the basis of the period covered); fuels; prepaid operating expenses; management fees and any other expenses of the operation and maintenance of the Property (including, without limitation, expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of 6% the unamortized portion thereof), shall all be prorated as of prorated rents credited to Purchaser; real and personal property taxes prorated 12:01 a.m. on the date the Deeds are recorded on the basis of a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants 365-day year. Seller shall receive a credit at Closing for the period tenant improvements and leasing commissions described in Section 7.2. Any sums collected by Buyer from tenants after the Closing shall be promptly paid to current rents and then to Seller to the extent of any remaining rents and other sums which were delinquent at Closing. Buyer shall use reasonable efforts to collect such delinquent rents but shall have no obligation to commence a legal proceeding to collect such sums. If Buyer has not been able to collect any delinquent rents within ninety (90) days after the Closing, Seller may bring legal actions to collect such rents, provided Seller shall have no right to terminate any tenant's lease. The amount of any security deposits under tenant leases shall be credited against the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property. Seller shall use reasonable efforts to obtain a utility reading immediately prior to the Closing Date less Date. Buyer shall cause all utilities to be transferred into Buyer's name and account at the time of Closing. Seller and Buyer hereby agree that if any amount previously paid by of the tenants shall aforesaid prorations and credits cannot be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. calculated accurately on the Closing Date, then the same shall be calculated as soon as reasonably practicable after the Closing Date and credited either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay said sum to the balance other party.
(b) For the properties located in Arizona, Seller shall pay for the premium for a standard coverage title policy. Buyer shall pay for (i) the additional premium for extended coverage and (ii) the cost of all endorsements. The escrow fees and recording costs shall be equally borne by both Buyer and Seller. For the cash due at Closingproperty located in New Mexico, Seller shall pay for the title insurance policy. UtilitiesBuyer shall pay for (i) the cost of all endorsements and the costs of deleting the standard preprinted exceptions, including water(ii) all recording costs and (iii) the environmental audit and any other inspections. The escrow fees shall be equally borne by both Buyer and Seller. For the property located in Texas, sewer, electricSeller shall pay for (i) the title insurance premium, and gas (ii) the cost of recording the deed. Buyer shall pay for the cost of all endorsements. The escrow fees shall be prorated at Closing based on equally borne by both Buyer and Seller. For the most recent ascertainable dataproperties located in Colorado, Buyer shall pay for (i) all recording costs, (ii) the documentary fees and (iii) the costs of all endorsements and extended title coverage. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor premium for all periods subsequent theretobasic title coverage. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser The escrow fees shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly equally borne by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser both Buyer and Seller. Seller shall be reimbursed at Closing for any utility deposits which All other costs associated with the Seller has deposited with any utility company and which will be assigned to closing of the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date transaction contemplated herein shall be paid by Purchaser. If in accordance with the amount of any local custom of the items to be prorated county in which the Property is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants located.
(if anyc) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence this Section 8.5 shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (American Industrial Properties Reit Inc)
Prorations. 13.1. Rents (exclusive a) At the Closing, all Taxes related to the Owned Real Property (and the Leased Real Property to the extent such Taxes are the responsibility of delinquent rentsthe tenant under the relevant Lease) (“Real Estate Taxes”) shall be pro rated as follows: (i) with respect to Real Property located in Wisconsin, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis calendar year basis, as of the Closing Date; and (i.e. ii) with respect to Real Property located in Iowa, (A) Seller shall be responsible for the Real Estate Taxes billed in (or around) September 2009 and all prior Tax bills, and (B) the Real Estate Taxes billed in (or around) March 2010 shall be prorated and adjusted between the parties, based upon their respective ownership during the first six (6) months of 2009; and
(b) Seller shall be responsible for all tenants' liabilityspecial assessment installments related to the Owned Real Property (and the Leased Real Property to the extent such special assessment installments are the responsibility of the tenant under the relevant Lease), if any, for such items); operating expenses which are reimbursable by the tenants for the period billed (even if not yet due) on or prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited Buyer shall pay all special assessment installments related to the balance Owned Real Property (and the Leased Real Property to the extent such special assessment installments are the responsibility of the cash due at Closing. Utilities, including water, sewer, electric, and gas tenant under the relevant Lease) first billed after the Closing Date.
(c) Personal property Taxes allocable to the personal property to be purchased under this Agreement which are billed or are to be billed in 2009 shall be prorated at Closing based and adjusted between the parties, on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closinga calendar year basis, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. .
(d) All costs associated with telephone directory listings rent payments, common area maintenance (CAM) charges, utility bills and any other prepaid advertisements similar charges related to the Acquired Real Property shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent All payroll Taxes and other similar Liabilities related to the expiration date Representatives of this temporary license set forth above, then Purchaser the Company Group shall also be liable for and shall pay to prorated as of the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysClosing.
(f) If Purchaser continues With respect to use said logos or trade names beyond the period allowed above for which a temporary license has any items to be prorated, including, without limitation, Taxes, that have not been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws billed as of the state where Closing, agreed upon estimates shall be used in prorations, and such Property is located estimates shall be deemed to prevent such unauthorized use be conclusive.
(g) Notwithstanding any other provisions hereof, all amounts that are the responsibility of, or to recover any damages authorized by such lawsotherwise allocated to, Seller under this Section 2.13 shall reduce the Purchase Price at Closing either directly or as a reduction in the calculation of the Net Equity Amount.
Appears in 1 contract
Prorations. 13.1Seller and Purchaser agree to prepare a proration schedule of adjustments five (5) business days prior to Closing. Rents (exclusive For purposes of delinquent rentscalculating prorations, but including prepaid rents); prepaid associations duesPurchaser shall be deemed to be in title to the Property, refundable security deposits (and therefore entitled to the income therefrom and responsible for the expenses thereof, for the entire day upon which will the Closing occurs. All such prorations shall be assigned to made at Closing on the basis of the actual number of days of the year and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in month that shall have elapsed as of the Closing Date. If post-Closing adjustments are required under this Article 7, the amount of 6% such prorations shall be adjusted in cash after Closing, as and when complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use their good faith and diligent efforts to make such adjustments no later than two hundred and seventy (270) days after Closing with respect to taxes and assessments and no later than thirty (30) days after the Closing with respect to other prorated amounts, or as soon as is reasonably practicable if and to the extent that the required final proration information is not available within such period. Items of prorated rents credited to Purchaser; real income and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants expense for the period prior to the Closing Date less any amount previously paid by will be for the tenants shall be credited to Seller; account of Seller and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, income and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor expense for the period to on and including after the ClosingClosing Date will be for the account of Purchaser, and all as determined by the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate billsaccrual method of accounting, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts subject to the Purchaser's addressprovisions hereof. Bills received after Closing that relate to expenses incurred, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned services performed or other amounts allocable to the Purchaser at Closing. Assessments payable in installments which are due subsequent period prior to the Closing Date shall be paid by PurchaserSeller. If the amount of any of the items to Any amounts not so paid by Seller may be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants set off against amounts (if any) shall be treated as a portion otherwise due Seller hereunder. The obligations of the real estate tax liability parties pursuant to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements this Section 7.1, including Sections 7.1.1 through 7.1.5, shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at survive the Closing and to correct shall not merge into any errors made documents of conveyance delivered at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Real Estate Contract (Industrial Property Trust Inc.)
Prorations. 13.112.1. All Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will expenses, taxes, water and sewer rents, or similar charges of fees, are to be adjusted as of midnight of the day of Closing. Real and personal property taxes, general and special, are to be adjusted according to the certificate of taxes issued by the taxing authority, and Purchaser shall assume charges therefor accruing from and after Closing.
12.2. All contracts and agreements relative to the operation, servicing and/or maintenance of the Property to be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis or terminated (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by extent the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on term extends beyond the Closing Date) shall be subject to post-closing adjustments adjusted between the parties as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on of midnight of the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.212.3. Rents which are delinquent as of the Closing Date Purchaser shall not be prorated. Instead, have no obligation to the extent collect any past-due rents except that Purchaser is able shall use commercially reasonable efforts to collect said delinquenciesdelinquent rents and promptly reimburse Seller for such past-due rents when, the as and if collected,net of costs of collection. Monies received from delinquent tenants after Closing by Purchaser shall be entitled applied as follows: (1) first, pro rata to receive Purchaser and Seller for the month the Closing takes place; (2) second, to Purchaser in an amount equal to all rentals due from such delinquent rent attributable tenants accruing after Closing; (3) third, to a tenant's occupancy costs of a portion of the Real Property for any period prior to the date of Closingcollection; and (4) fourth, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller in an amount equal to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any remaining unpaid rental arrearages owed by such tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.312.4. To At Closing, Seller shall deliver to Purchaser, or make appropriate adjustments for, all tenant security deposits and the extent it is reasonably possible like, together with statutory or contractual interest owed to tenants, together with a detailed statement of the security deposits and all such accrued interest held for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property account of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereintenant. Purchaser shall not use receipt for the existing logos or trade name on stationery, business cards, contracts or other documents, same and shall not use the existing trade name in responding indemnify, defend and save Seller harmless from and against any claims relating to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full Purchaser's application or holding of such deposits and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in interest, which Seller currently has a telephone directory listing and/or advertisement occurs delivered or for which an adjustment has been made at Closing,from and after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone numberClosing. Seller may also place a listing and/or advertisement in such publicationshall indemnify, defend and in the event that Seller decides save Purchaser harmless from and against any claims relating to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost Seller's application or holding of such listing and/or advertisement attributable deposits and interest prior to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive Real estate taxes, expenses of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to operation and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the time of closing. Taxes for the year of Closing shall be prorated as of the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas Current rents collected from Tenants under Leases shall be prorated at for the month during which the Closing based on occurs (the most recent ascertainable dataterm “rents” as used in this Agreement includes all payments due and payable by Tenants under the Leases). Real estate taxes for the calendar year of Closing shall be prorated as of the Closing Date. Unpaid and delinquent rent collected by Seller and Purchaser after the Closing Date will be delivered as follows: (i) if Seller collects any unpaid or delinquent rent for the Property, Seller will, within fifteen (15) days after the receipt thereof, deliver to Purchaser any such rent which Purchaser is entitled to hereunder relating to the date of Closing and any period thereafter, and (ii) if Purchaser collects any unpaid or delinquent rent from the Property, Purchaser will, within fifteen (15) days after the receipt thereof, deliver to Seller any such rent which Seller is entitled to hereunder relating to the period prior to the date of Closing. Seller and Purchaser agree that all rent received by Seller or Purchaser will be applied first to rents that became due and payable during the calendar month of Closing, and second, to those which were due and payable after Closing, and third, to those which were due and payable prior to Closing. Purchaser will use commercially reasonable efforts after Closing to collect all unpaid and delinquent rents in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to institute any lawsuit or other collection procedures to collect such unpaid or delinquent rents. In the event that there shall pay at be any rents or other charges under any Leases which, although relating to a period prior to Closing, do not become due and payable until after Closing or are paid prior to Closing but are subject to adjustment after Closing (e.g., such as year end operating and common area expense reimbursements and the bills therefor for like), then any rents or charges of such type received by Purchaser or its agents or Seller or its agents subsequent to Closing will, to the extent applicable to a period to and including extending through the Closing, be prorated between Seller and the Purchaser shall pay the utility bills therefor as of Closing and Seller’s portion thereof will be remitted promptly to Seller by Purchaser without reduction for all periods subsequent theretoany costs of collection or processing. If the utility company At Closing, Purchaser will not issue separate bills, the Purchaser shall receive be entitled to a credit against the Purchase Price for Seller's portion all cash security deposits held pursuant to any of the Leases (and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇reany pre-paid rent thereunder if not then earned by Seller) and Seller shall deliver to Purchaser any such non-cash security deposits thereunder, if any. Payments of accounts for water, sewer, electricity, telephone and all other utilities (so long as no more than thirty (30) days in advance currently in the ordinary course name of business), then Purchaser Seller (or its managing agent) shall be charged its portion placed in the name of such payment at Closing. No proration Purchaser on the Closing Date and Seller shall arrange for final meter readings and metered services to be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, conducted on the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and SellerClosing Date. Seller shall be reimbursed at Closing responsible to pay in full all bills for such utility charges related to any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith period prior to the Closing Date and Purchaser shall be responsible for to pay all utility charges related to any costs associated therewith arising from period on and after subsequent to the Closing Date. All prorations described in this Agreement (except prorations With respect to utilities which are not metered, charges for real such service shall be prorated as of the Closing Date, based on charges for the previous billing period, and Purchaser and Seller shall receive credits or charges, as appropriate, with such amounts to be re-prorated promptly after the final bills are issued. Seller shall cooperate with Purchaser to effect the transfer of utility accounts from Seller to Purchaser. Expenses pertaining to Service Agreements that Purchaser elects to assume and personal property taxes which (if applicable) and any other expenses relating to the Property shall be deemed final as prorated on between the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent parties as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Real Estate Purchase Contract (Nuveen Global Cities REIT, Inc.)
Prorations. 13.16.7.1. Rents (exclusive of delinquent Real property taxes, assessments, rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Datedeposits, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas cam expenses shall be prorated at Closing based on the most recent ascertainable datathrough Escrow between Buyer and Seller as of Close of Escrow. Seller shall pay at Closing the bills therefor for the period to Rents, security deposits and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser cam expenses shall be charged its portion approved by Buyer prior to Close of such payment at ClosingEscrow. No proration Any delinquent rents collected by Buyer shall be made for utility expenses that are separately metered paid to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use pursue any Tenant for delinquent rent, but shall not cause a Tenant to be delinquent for their current rent or become financially unstable. Tax and assessment prorations shall be based on the existing logoslatest available tax ▇▇▇▇. If, in place advertisingafter Close of Escrow, telephone directory listings and advertisementsBuyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and telephone numbersnot later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to each the Property without additional compensation transactions entered into prior to the Seller except as set forth in Paragraph 13.1 herein. Purchaser execution of this Agreement shall not use the existing logos or trade name on stationery, business cards, contracts or other documentsbe paid by Seller, and Seller shall not use indemnify and hold Buyer harmless for Lease commission claims brought against the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full arising therefrom. All leasing commissions for new Leases and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings Lease renewals and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs expansion options executed after the date hereof but of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new Lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Closing Date, Purchaser shall have date of closing and which are in any way related to the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationProperty, and in the event that Seller decides all expenses related thereto, including but not limited to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingcourt costs and attorneys' fees.
(d) In the event 6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising parties and based on events occurring subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent date of closing and which are in any way related to the Closing Date (Property, and all expenses related thereto, including, but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)not limited to, court costs and attorneys' fees.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Real estate taxes and assessments, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilitytaxes, if any, for such items); operating rental income and all other items of income and expense with respect to the Property shall be prorated between Seller and Buyer as of midnight on the night before the Closing Date. Income and expenses which are reimbursable by the tenants for the period prior to Property shall be prorated on the basis of the acutal number of days in the month in which the Closing Date less any amount previously paid by occurs and on the tenants basis of the accrual method of accounting. All such items attributable to the period through and including the Closing Date shall be credited to Seller; and other similar all such items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited attributable to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to following the Closing Date shall be paid by Purchasercredited to Buyer. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof Buyer shall be on the basis credited in escrow with (i) any portion of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements rental agreement or lease deposits with respect to the Properties, i.e., those agreements Property which Seller has entered into with firms who are refundable to the tenants and (ii) rent prepaid beyond the Closing Date. Buyer shall not be entitled to a commission based any interest on services rendered and rental agreement or lease deposits or prepaid rent accrued on or before the extent Closing Date, except for any interest required to which they are able be paid to achieve a reduction tenants under applicable law or pursuant to the terms of the Leases. Seller shall be credited in the real estate taxes otherwise payable escrow with any refundable deposits or bonds held by any utility, governmental agency or service contractor with respect to the PropertiesProperty (to the extent the same are assignable to Buyer in connection with the sale of the Property).
(b) Buyer and Seller shall cooperate to produce prior to the Closing Date a schedule of prorations to be made on and after the Closing Date pertaining to the Property as complete and accurate as reasonably possible. The fees All prorations which can be liquidated accurately or commissions payable to said consultants (if any) reasonably estimated as of the Closing Date shall be treated as a portion of the real estate tax liability to be pro-rated as of made in escrow on the Closing Date. All costs associated with telephone directory listings other prorations, and any other prepaid advertisements adjustments to initial estimated prorations, shall be prorated made by the parties with due diligence and cooperation within 30 days following the Closing Date, or such later time as of may be required to obtain necessary information for proration, by immediate cash payment to the party yielding a net credit from such prorations from the other party.
(c) Buyer shall, consistent with reasonable business judgment, exert its reasonable efforts to collect for Seller following the Closing Date so that Seller shall be responsible for any costs associated therewith prior to all rental income which is delinquent on the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationsthe Property; provided, however, that Buyer shall not be required to commence legal proceedings to collect such prorations rents. Notwithstanding the foregoing proviso, Seller reserves the right to pursue any remedy for damages Seller may have against any tenant with respect to such delinquent rents, but Seller shall be deemed final and not subject seek to further post-closing adjustments at 5:00 PM Chicago time evict any tenant or terminate any Lease based on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustmentsuch default in rental payments. The provisions Any sums collected on account of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of rents after the Closing Date shall not be prorated. Instead, successively applied to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent payment of (i) rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do soProperty due and payable in the month in which the closing occurs, the Seller shall grant (or shall arrange ii) rent for the owner thereof to grantProperty due and payable in the months succeeding the month in which the closing occurs (through and including the month in which payment is made), and (iii) to Purchaser at Closing a temporary license and right to use the logos currently used by rent for the Property which are due and payable in the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of months preceding the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication month in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingclosing occurs.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Bre Properties Inc /Md/)
Prorations. 13.1. Rents actually collected for the calendar month in which the Closing occurs (exclusive of delinquent rentsDelinquent Rent, as hereinafter defined, but including prepaid rentsrents covering a period subsequent to Closing); prepaid associations dues, refundable security deposits (which will be assigned to water and assumed by Purchaser and credited to Purchaser at Closing)other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited revenues and expenses covering a period subsequent to PurchaserClosing; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items“Property Taxes”); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar revenue and expense items shall be adjusted ratably as of 11:59 p.m. P.M. Central Time on the Closing Date (“Proration Date”), and credited or debited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, All regular and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for supplemental taxes and assessments attributable to the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date shall be paid by the responsibility of Seller. All regular and supplemental taxes and assessments attributable to the period after the Closing Date shall be the responsibility of Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments adjustment thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with With respect to Property Taxes, if Closing occurs before the Propertiescurrent fiscal year’s tax bills are available, i.e., those agreements which Seller has entered into with firms who are entitled to a commission the proration will be based on services rendered upon the previous fiscal year’s tax ▇▇▇▇ and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) proration shall be treated as a portion readjusted and settled by Seller and Purchaser within ten (10) business days after such tax ▇▇▇▇ is issued. If special assessments have been levied against the Property for improvements, then the amount of the real estate tax liability any installments which are attributable to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith periods on or prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from paid by the Seller; and the amount of installments which are attributable to periods after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which Date shall be deemed final as paid by the Purchaser. If any charges, expenses or other items to be prorated hereunder are unavailable on the Closing Date, a readjustment will be made within ten (10) business days following the availability of accurate bills and figures. Seller shall be subject instruct its property manager to postdiscontinue data entry operations in the on-closing adjustments as necessary site computer system for the Property (including making deposits of rental income) for the period subsequent to reflect later relevant information not available at the close of business on December 23, 2011. Seller acknowledges that such discontinuance is intended to afford Seller and Purchaser an opportunity to coordinate the transition of the Property in anticipation of Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such complete work on prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone numberthis Agreement. Seller may also place a listing and/or advertisement in shall instruct its property manager to forward to Purchaser or its designee final reports to facilitate transition planning and compilation of prorations as soon as practicable after discontinuing such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingdata entry.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale (Behringer Harvard Opportunity REIT II, Inc.)
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in if and to the amount extent payable to the existing property manager for rent received and prorated for the month of 6% of prorated rents credited to PurchaserClosing; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. For a period of 120 days following the Seller's existing real estate tax consulting agreements with respect to the PropertiesClosing, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of all basic rent paid following the Closing Date so that Seller shall be responsible for by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser Property who is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent indebted under a lease for basic rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date and said Lease is not assigned to after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current basic rent shall be deemed a "Post-Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, Receipt" until such time as all such indebtedness is paid in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
full. Within ten (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall not use the existing logos or trade name on stationeryits best efforts to collect all amounts which, business cardsupon collection, contracts or other documentswould constitute Post-Closing Receipts hereunder, and but in no event shall not use the existing trade name in responding Purchaser be required to oral inquiries regarding the Properties except initiate legal proceedings to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovecollect such amounts. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone number. upon the verification of additional funds owing to Seller may also place a listing and/or advertisement in such publicationan amount greater than $5,000.00, Purchaser shall pay to Seller said additional Post-Closing Receipts and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 12.2 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Pension Investors Iii)
Prorations. 13.1. Rents All income (exclusive excluding cash on hand and accounts receivable, which shall be and remain the property of delinquent rentsSellers), but including prepaid rents); prepaid associations current operating expenses, association or trade group dues, refundable security deposits (which will be assigned to accounts payable, real estate taxes, other taxes and assumed by Purchaser assessments, all utilities, water and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; sewer charges, transferable license or permit fees, real estate and personal property ad valorem taxes (provided that, personal property ad valorem taxes shall not be prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by to the tenants for the period extent that Purchaser provides to Sellers evidence prior to the Closing Date less expiration of the Feasibility Period that local law where any amount previously of the Hotels are located would require Purchaser to pay such taxes that have already been paid by or on behalf of the tenants shall be credited to respective Seller; ), phone bills, office bills, prepayments made under the Contracts and other similar items income and expenses from or relating in each case to the Premises shall be adjusted ratably and prorated as of 11:59 p.m. the Closing, with Purchaser being entitled to all income and responsible for all expenses accruing after the Closing and Sellers being entitled to all income and responsible for all expenses accruing prior to the Closing. Sellers shall provide Purchaser with a list of all contracts subject to prorations for Purchaser's review at least two (2) weeks prior to Closing. Sellers and Purchaser agree that inventories at any of the Hotels shall not be prorated. If any items of income or expense are unascertainable on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion readjustment of such payment at Closing. No proration charges and expenses shall be made for utility expenses that are separately metered to and paid directly by tenants and within sixty (60) days after the Closing or, in the case of property taxes for which Seller has no obligation tax bills are not yet available, promptly after such tax bills become available. The parties agree to pay. Furthermore, cooperate in good faith in effecting such a final reconciliation and each party shall promptly pay (or reimburse the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts other party for) any expense item that is chargeable to the Purchaser's address, if such a procedure is possible former party and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for promptly remit any utility deposits which the Seller has deposited with any utility company and which will be assigned income item to the Purchaser at Closingother party if the other is entitled thereto. Assessments payable in installments which are due subsequent Sellers shall use reasonable efforts to arrange for the Closing Date shall be paid rendition of final bills by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated utility companies involved as of the Closing Date. All costs associated Sellers shall use reasonable efforts to provide Purchaser with telephone directory listings accountings for vending machines and any other prepaid advertisements shall be prorated commissions as of the Closing Date so Date. Sellers shall credit Purchaser with the cost of repairs that Seller have not been completed as of Closing with respect to damage caused by Hurricane ▇▇▇▇ as set forth on the ▇▇▇▇ Damage Schedule, as more fully set forth in Section 3.4. Guest room revenues of the Premises, whether in cash or in accounts receivable, arising from occupancy for the night beginning on the day preceding the Closing Date, including any tax thereon, but exclusive of food, beverage, telephone and similar charges (which shall be retained by Sellers), shall be credited one-half to Purchaser and one-half to Sellers. Sellers shall collect all income and other sums payable by tenants or guests (or otherwise) and shall be responsible for the payment of all expenses on account of services and supplies furnished to and for the benefit of the Premises through the Closing. Purchaser shall purchase and Sellers shall be credited for guest ledger receivables and for any costs associated therewith prior to and all cash that is in the cash drawer of each of the Hotels on the Closing Date and Date. On the Closing Date, Sellers will not remove any other house funds or ▇▇▇▇▇ cash from the Premises until Purchaser is ready to start its operations. Purchaser shall be responsible credited with all deposits from tenants or guests of the Premises (whether refundable or not) which relate to post-Closing services. Sellers shall remit to Purchaser at Closing all prepaid room charges for any costs associated therewith arising from and nights after the Closing Date. In addition, at Closing, Sellers shall deliver to Purchaser a schedule of all unpaid accounts receivable and other unpaid income items as of Closing. All prorations described in this Agreement (except prorations for real such accounts receivable and personal property taxes which other income items paid to and collected by Purchaser after Closing shall be deemed final as prorated on promptly remitted to the Closing Date) order of Sellers. Except for sums actually received by Purchaser pursuant to the immediately preceding sentence, Purchaser shall assume no obligation to collect or enforce the payment of any amounts that may be subject due to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedSellers, however, except that such prorations Purchaser shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closingrender reasonable assistance, at which time all prorations shall be deemed final and not subject no expense to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. InsteadPurchaser, to Sellers after Closing in the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for event Sellers proceed against any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller third party to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rentsaccounts receivable or other income items due Sellers. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use pursue collection of such items after the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property Closing without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos Sellers' consent or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified aboveinvolvement. In the event that any adjustments pursuant to this Section 9 are, within one (l) year subsequent to Closing, found to be erroneous, then if either party hereto is entitled to additional monies and shall invoice the publication close date other party for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after such additional amounts as may be owing, such amounts shall be paid promptly by the date hereof but before other party upon receipt of the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expenseinvoice. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller invoice shall be entitled to a pro-rata credit for such portion accompanied by reasonable substantiating evidence. The provisions of this Section 9 shall survive the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Salomon Brothers Holding Co Inc Salomon Brothers Inc)
Prorations. 13.1. Rents (exclusive 5.4.1 The following shall be prorated between Seller and Purchaser as of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated 12:01 a.m. on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under actual number of days elapsed over the Seller's existing applicable period):
(a) All real estate tax consulting agreements with respect to taxes, water charges, sewer rents, vault charges and assessments on the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based Property on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion basis of the real estate tax liability to fiscal year for which assessed. In no event shall Seller be pro-rated as of the Closing Date. All costs associated charged with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall or be responsible for any costs associated therewith prior to increase in the Closing Date and Purchaser shall be responsible for taxes on the Property resulting from the sale of the Property or from any costs associated therewith arising from and improvements made or leases entered into on or after the Closing Date. All prorations described If any assessments on the Property are payable in this Agreement (except prorations installments, then the installment for real and personal property taxes which the current period shall be deemed final prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases entered into pursuant to Section 7.2.3, and other tenant charges if, as prorated and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date) to Purchaser on the Closing Date) . Seller shall be subject deliver to post-closing adjustments as necessary to reflect later relevant information not available Purchaser at Closing any security deposits which are held in the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions form of the preceding sentence shall survive the Closing.
13.2letters of credit. Rents which are delinquent as of the Closing Date shall not be proratedprorated on the Closing Date. Instead, Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to receives rents within one hundred twenty (120) days after the Closing Date, provided such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents for the month preceding the month in which the Closing occurs, third to any delinquent rents owed to Seller, with Seller's share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser and fourth to the rents that shall then be due and payable to Purchaser, Purchaser 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, which consent may be given or withheld in Seller's sole and absolute discretion. After such one hundred and twenty (120) day period, Seller shall not agree be entitled to reduce any further rents for any period of time after Closing in order to induce any tenants to pay delinquent rentscollected by Purchaser. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have hereby reserves the right to retain pursue any portion remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to terminate any lease or any tenant's right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or declare a default under any Lease). With respect to delinquent rents and any other amounts or other rights of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though kind respecting tenants who are no longer tenants of the tenant is delinquent in paying rent Property as of the Closing Date, Seller shall retain all rights relating thereto.
13.3. To (c) All operating expenses.
(d) Intentionally deleted.
(e) Charges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the extent it is reasonably possible Assignment and Assumption of Contracts.
(f) Any prepaid items, including, without limitation, fees for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) licenses which are transferred to Purchaser at the Closing a temporary license and right annual permit and inspection fees.
(g) Utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to use adjustment after the logos currently used by Closing when the next bills are available, or if current meter readings are available, on the basis of such readings.
(h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assigned to Purchaser at the Closing, which are shall be credited in their entirety to Seller.
(i) Personal property taxes, if any, on the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each basis of the Properties fiscal year for which assessed.
(j) Permitted administrative charges, if any, on those tenants' security deposits transferred by Seller pursuant to the following terms Assignment and conditions:Assumption of Leases.
(k) Taxes payable by Seller relating to operations of the Property, including, without limitation, business and occupancy taxes and sales taxes, if any.
(l) Such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of California subject to Section 7.2.3(a) hereof.
(a) The temporary license granted by this paragraph Seller shall commence be given a credit for any payments Seller shall have made as of the Closing Date, in good faith and in the ordinary course of business, in respect of the capital expenditures described on Exhibit H attached hereto and made a part hereof. Purchaser shall assume all liability for such capital expenditures as of the Closing.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to or the date when such error is discovered, as applicable; provided that, with the public telephone directory pertaining exception of any item required to each Property is published subsequent be apportioned pursuant to the Closing Date. During such periodSection 5.4.1(a), Purchaser (b) or (g), neither party shall have the right to use request apportionment or reapportionment of any such item at any time following the existing logosone hundred eightieth (180th) day after the Closing Date. If the Closing shall occur before a real estate or personal property tax rate or assessment is fixed for the tax year in which the Closing occurs, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation the apportionment of taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the Seller except as set forth latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in Paragraph 13.1 herein. Purchaser computing apportionments at Closing shall not use be promptly corrected and the existing logos or trade name on stationeryproper party reimbursed, business cards, contracts or other documents, and which obligations shall not use survive the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerClosing.
(b) The 5.4.3 Items to be prorated at the Closing shall include a credit to Seller stipulates that there is full for costs and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements expenses incurred by Seller in connection with the pertinent telephone companies so that all any new Leases or modifications to any existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Leases entered into after the date hereof but before in accordance with the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost terms and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license conditions set forth in this paragraph shall expire on the date(sSection 7.2.3(a) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysAgreement.
(f) If Purchaser continues to use said logos or trade names beyond 5.4.4 The provisions of this Section 5.4 shall survive the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsClosing.
Appears in 1 contract
Sources: Contract of Sale (Sports Arenas Inc)
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; accrued but unpaid interest on the Notes; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The In addition, Purchaser shall assume Seller's obligations give Seller a credit at Closing for all escrows, reserves and holdbacks, held by the Lender under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateLoan Documents. All costs associated with telephone directory listings and any other prepaid advertisements shall prorations will be prorated final except as of to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the Closing Date so that Seller shall be responsible for by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser Property who is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent indebted under a lease for rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date and said Lease is not assigned to after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current rent shall be deemed a "Post-Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, Receipt" until such time as all such indebtedness is paid in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
full. Within ten (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall not use the existing logos or trade name on stationeryits best efforts to collect all amounts which, business cardsupon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone number. upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller may also place a listing and/or advertisement in such publication, said additional Post-Closing Receipts and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 12.2 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series Ii)
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items The following shall be adjusted ratably between Seller and Purchaser: i. Proration Items. Seller and ▇▇▇▇▇▇▇▇▇ agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing DateDate (the “Closing Proration Time”), the following (collectively, the “Proration Items”): (i) real estate and personal property taxes and assessments, (ii) utility bills (except as hereinafter provided), and credited (iii) collected Rentals (subject to the balance terms of Section 8.e(iii) below), (iv) operating expenses payable by the owner of the cash due at Closing. Utilities, including water, sewer, electricProperty, and gas shall (v) all payments required to be prorated at Closing based on made by the most recent ascertainable datatenant under the Lease for ad valorem taxes, insurance, common area maintenance and/or other operating expenses of the Property (“Reimbursable Tenant Expenses”) in accordance with Section 8.e(iv) below. Seller shall pay at Closing the bills therefor will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ClosingClosing Proration Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Closing Proration Time. Such preliminary estimated Closing prorations shall be set forth on a closing statement to be prepared by ▇▇▇▇▇▇ and submitted to Purchaser for Purchaser’s approval prior to the Closing Date. The Closing Statement, once agreed upon, shall be signed by ▇▇▇▇▇▇▇▇▇ and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the utility company will actual amounts of the Proration Items are not issue separate billsknown as of the Closing Date, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall prorations will be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion basis of the real estate tax liability actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to be pro-rated as of the Closing Date. All costs associated with telephone directory listings insurance premiums, and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall Seller’s insurance policies will not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Contract (Artivion, Inc.)
Prorations. 13.1. Rents (exclusive of delinquent rentsSellers and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing DateDate (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Sellers will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ClosingClosing Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Closing Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Such preliminary estimated Closing prorations shall be charged its portion of such payment at Closing. No proration shall set forth on a preliminary closing statement to be made for utility expenses that are separately metered to prepared by Sellers and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable submitted to Purchaser and Seller. Seller for Purchaser’s approval (which approval shall not be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Sellers and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Sellers (if the preliminary prorations result in a net credit to Sellers) or by Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Time, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable databest evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Sellers and Purchaser. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect No prorations will be made in relation to insurance premiums (except to the Propertiesextent covered by the proration of Operating Expense Recoveries), i.e., those agreements which Seller has entered into with firms who are entitled and Sellers’ insurance policies will not be assigned to a commission based on services rendered Purchaser. Final readings and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (final ▇▇▇▇▇▇▇▇ for utilities will be made if any) shall be treated as a portion of the real estate tax liability to be pro-rated possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made -38- at the Closing with respect to such prorations; providedutility bills (except to the extent covered by the proration of Operating Expense Recoveries). Sellers will be entitled to all deposits presently in effect with the utility providers, however, that such prorations and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be deemed final made by Purchaser and not subject to further post-closing adjustments at 5:00 PM Chicago time Sellers on or before November 30, 2016 (herein, the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment“Final Proration Date”). The provisions of the preceding sentence shall this Section 10.4 will survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant Final Proration Date has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationoccurred, and in the event that Seller decides any items subject to place such a listing and/or advertisementproration hereunder are discovered prior to the Final Proration Date, Seller the same shall be entitled to a pro-rata credit for such portion promptly prorated by the parties in accordance with the terms of the cost of such listing and/or advertisement attributable this Section 10.4. Notwithstanding anything to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth contrary provided in this paragraph shall expire on the date(s) set forth above. If Agreement including, but not limited to, this Section 10.4(a), Sellers and Purchaser continues hereby agree to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth abovefollowing, then Purchaser shall be liable estimated 2016 real estate taxes and assessments for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws purposes of the state where such proration of same at Closing: (x) $470,000.00 for the Shoppes at Parkland Real Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsand the Shoppes at Parkland Improvements and (y) $180,000.00 for the University Palms Real Property and the University Palms Improvements.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 13.1Buyer presently occupies the Property as the sole tenant under a triple net Lease with Seller. Rents (exclusive As such, all taxes, utilities, and certain operating expenses associated with the Property are paid by Buyer, as tenant. As such, none of delinquent rentsthese expenses shall be prorated at Closing. However, but including prepaid rents); prepaid associations duesat Closing, refundable security deposits (which the following adjustments will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in made:
(1) Buyer will receive credit for the amount of 6% of prorated rents credited to Purchaser; all real and personal property taxes paid by tenant to Seller for the year of Closing through Closing, and Buyer shall be responsible for, and take title to the Property subject to all real property taxes for the year of Closing;
(2) Although rent will be prorated on as of Closing, the operating (triple net) expenses (excepting real property taxes) will not be. Seller estimates that the operating (triple net) expenses (excepting real property taxes) paid by tenant through the month of Closing will closely approximate what Seller will have spent (or be obligated to pay) for the period from January 31, 2004 through to the Closing.
(3) Utilities will be transferred to Buyer as of Closing; and
(4) If either party desires to have a "reconciliation of the 2004 operating (triple net" basis ) expenses (i.e. adjusted for excepting real property taxes) as of Closing, that party must notify the other in writing within fifteen (15) days following Closing. Absent such notice, both parties will be deemed to have waived any right under the Lease to a reconciliation and to have accepted the allocation of expenses as described in subsection b above as final. In the event either party elects to have such a reconciliation, all tenants' liabilityoperating (triple net) expenses (excepting real property taxes) will be reconciled as of the date of Closing. Following the reconciliation, if requested, Buyer will pay to Seller the amount, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously that Seller has paid in excess of amounts paid by tenant under the tenants shall be credited Lease; Seller will pay to SellerBuyer the amount, if any, that tenant has paid in excess of amounts actually due under the Lease; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to party requesting the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company reconciliation will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner other $1,000.00 unless the reconciliation results in the requesting party receiving payment in excess of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days2,000.00.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Contract to Buy and Sell Real Estate (Carrier Access Corp)
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to Prorations between Seller and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than made within thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Dateas follows:
(a) All taxes and assessments on the Assets for all prior years and all current year taxes and assessments that are due and payable on or before the Closing shall have been paid in full by Seller on or before the Closing. All costs associated with telephone directory listings general real estate, personal property and any other prepaid advertisements ad valorem taxes and assessments for the current year only shall be prorated as of the Closing Date so that Seller on the basis of the most recent available information, as adjusted by any known changes relating to the period during which the Closing occurs, but without any adjustment resulting from the sale of the Assets under this Agreement.
(b) All charges for gas, electricity, water, telephone, sewer and other utilities shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall on the basis of the most recent available information, as reasonably adjusted to account for known variances from usage that would not otherwise be proratedreflected in such information. InsteadFor purposes of calculating prorations, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive the income accruing to Seller and responsible for the Losses and expenses accruing to Seller for the entire day upon which the Closing occurs. All such delinquent rent attributable to a tenant's occupancy of a portion prorations shall be made on the basis of the Real Property for any period prior actual number of days of the month which shall have elapsed as of the day of the Closing and based upon a 365- day year. The amount of such prorations shall be subject to adjustment in cash after the date of Closing, free from any claim thereon by the Selleras and when more complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use commercially reasonable efforts to make such adjustments not later than sixty (60) days after the Closing Date (which cooperation may use whatever lawful means are available to Seller to collect include any delinquencies up to reasonable inspection of Seller’s books and until the day records). At least three (3) Business Days prior to the Closing Date, provided that Seller shall not agree deliver to reduce rents for any period Purchaser a tentative statement of time after Closing in order prorations setting forth the preliminary determination of all items to induce any tenants be prorated pursuant to pay delinquent rentsthis Section 2.06 and supported by all detail reasonably necessary to make such determination. Prior to the Closing, Purchaser and Seller shall not have the right subsequent use commercially reasonable efforts to Closing to seek (by legal action or otherwise) the collection agree on such statement of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Dateprorations.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Asset Purchase Agreement
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to 15.1 Water and assumed by Purchaser and credited to Purchaser at Closing)other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityliabilities, if any, for such items); tenant reimbursement obligations for operating expenses which are reimbursable paid by Seller for the tenants period prior to the Closing Date; unpaid operating expenses for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellerprorated on a "net" basis, as set forth above; and all other similar items of expense and income shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the Closing Date ("Proration Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business"), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing entitled to a credit for any all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, payable in installments which the Seller has deposited with any utility company and which will be assigned are due prior to the Purchaser at ClosingClosing Date shall be paid by Seller. Assessments Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing If any ongoing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller contest has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the cont▇▇▇, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All costs associated with telephone directory listings other prorations will be final except as to delinquent rent referred to in Paragraph 15.2 below and any other prepaid advertisements shall be prorated as of provided in Paragraph 15.3.
15.2 All basic rent paid following the Closing Date so that Seller shall be responsible for by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser Property who is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent indebted under a Lease for basic rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date Proration Date in an amount greater than the amount of Closingall current basic rent and any delinquency accruing after the Closing Date owed by said tenant to Purchaser shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt byPurchaser of a Post-Closing Receipt, free from any claim thereon by the Purchaser shall pay such Post-Closing Receipt to Seller. Seller may Purchaser shall use whatever lawful means are available its reasonable, good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder, provided Purchaser shall not be obligated to incur any expense, terminate any Lease or institute eviction or legal proceedings to collect "post-closing receipts." Purchaser shall promptly deliver to Seller any Post-Closing Receipts owing to collect Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any delinquencies up information reasonably necessary to verify the accuracy of the Post-Closing Receipts reconciliation statement and until upon the day verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller shall be responsible for preparing all 1996 operating expense reconciliation statements and shall pay to Tenants any amounts owed to Tenants for overcharges in 1996 or any previous year in accordance with the provisions of the respective Leases. This Paragraph 15.2 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
15.3 All refunds in connection with any ongoing real estate tax protests for the Property initiated by Seller prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings Seller and advertisements, and telephone numbers, at each of the Properties are not being assigned by Seller to Purchaser pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified aboveAgreement. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Datesuch refunds are paid to Purchaser, Purchaser shall have the right agrees to place a listing and/or advertisement promptly remit all such sums to Seller. Purchaser agrees, at no cost or expense to Purchaser, to execute any documents reasonably requested by Seller in connection with such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingtax protests.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited Seller shall apportion as of midnight of the day preceding the Closing, the items hereinafter set forth. Any errors or omissions in computing apportionments at Closing shall be promptly corrected. The provisions of this Section 14 shall survive the Closing. The items to be adjusted are:
14.1.1 city, state, county, school, ad valorem taxes and other assessments for the fiscal year of sale; should such proration be inaccurate based on the actual millage set forth on the ad valorem tax ▇▇▇▇ if the current tax ▇▇▇▇ was not been received by the date of the Closing, either party may demand after the date of Closing, that such taxes and assessments be reprorated based on the actual ▇▇▇▇ and shall be entitled to receive upon demand, any amount owing to such party based on such reproration;
14.1.2 all base rent, percentage rent and additional rent and similar charges to the extent collected by the Seller, except that percentage rents shall be separately apportioned for each Tenant who is obligated to pay percentage rent on the basis of the fiscal year set forth in the Tenant’s Lease. To the extent that Seller or Purchaser receives any base rent, percentage rent and/or other additional rent or other charges after the Closing, the same shall be immediately delivered to Purchaser at Closing); fuels; prepaid operating expenses; management fees to be applied in accordance with the amount terms of 6% of prorated rents credited to Purchaser; real Section 14.2.
14.1.3 all other income and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by of the tenants Property for the period prior to Assumed Contracts and public utility charges and any charges or payments under the REA shall be prorated at the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably effective as of 11:59 p.m. on the Closing Date, and credited to the balance appropriate cash adjustments shall be made by Purchaser and Seller. Seller and Purchaser shall prorate public utility charges as of midnight of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at day preceding the Closing based on applicable utility bills. Notwithstanding anything herein to the most recent ascertainable datacontrary, there shall be no apportionment of any fees or charges with respect to Seller’s termination of the Existing Management Agreement.
14.1.4 At Closing, any prepaid rents and security deposits under the Leases (together with any interest accrued thereon) shall be transferred to Purchaser by way of a credit in favor of Purchaser. At Closing, the GH Reimbursement shall be a credit in favor of Seller.
14.1.5 At Closing, Seller shall pay at Closing (or, if Seller has not already paid, shall give Purchaser a credit against the bills therefor Purchase Price) the amount of all allowances, concessions, inducements and/or landlord improvement work provided for in any of the Leases that were not fully paid or performed, except for the period to allowances identified in clauses “(x),” “(y)” and including “(z)” of Section 8.1.9(d) and the Imperial Spa Work which allowances and work shall be Purchaser’s responsibility following the Closing.
14.1.6 At Closing, and in the event any amounts are owing for leasing or brokerage commissions with respect to any of the Leases, whether such costs are payable before or after the Closing Date, Seller shall grant Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay in the entire utility bill after Closing. If Seller h▇▇ ▇re-paid aggregate amount of any such utilities (so long unpaid commissions and Purchaser shall assume the obligation to pay to the applicable broker the amount actually received by Purchaser as no more than thirty (30) days credit in advance respect of the commission owing to such broker, except for the commissions due to MCC Realty Management, Inc. pursuant to the Non-Exclusive Leasing Agreement attached hereto as Exhibit “O” with respect to the Great Harvest Market and the Imperial Spa Leases.
14.1.7 If, at Closing, the Property or any part thereof shall have been affected by an assessment or assessments, which are or may become payable in annual installments, of which the ordinary course of business)first installment is then a charge or lien, then Purchaser for the purposes of this Agreement, all the unpaid installments of any such assessment due and payable in calendar years prior to the year in which the Closing occurs, if any, shall be charged its portion of such payment at paid by the Seller and all installments becoming due and payable after the Closing. No proration , if any, shall be made for utility expenses that are separately metered to assumed and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for except, however, that any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to and payable in the calendar year in which the Closing Date occurs shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closingadjusted pro rata.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Retail Opportunity Investments Corp)
Prorations. 13.1(a) Each Seller shall be entitled to all rent and related payments under the Revenue Leases to which it is party relating to any period (or portion thereof) preceding the Closing Date (regardless of the actual rent receipt date). Rents Purchaser shall promptly remit to MobileMedia Communications on behalf of Sellers, all rent and related payments that Purchaser receives or collects from Tenants under the Revenue Leases regarding rent relating to any period (exclusive or portion thereof) preceding the Closing Date. Such rent shall include the application of delinquent rentsany guarantee payments, but including prepaid rents); prepaid associations duesindemnities, refundable security deposits (which will be assigned setoffs or similar payments or recoveries that are applied to and assumed rent. The parties agree that all such payments received by Purchaser or its representatives from or on behalf of a Tenant shall applied in the following order: (i) first, to unpaid rent that has been due within sixty (60) days preceding such rent receipt date, first applied to rent that is most remotely in arrears, (ii) next, to rent that is due on such rent receipt date or comes due during the immediately succeeding forty (40) -day period, (iii) next, to unpaid rent that has been due more than sixty (60) days preceding such rent receipt date, first applied to rent that is most remotely in arrears, and credited (iv) then, to rent coming due more than forty (40) days after such rent receipt date. Notwithstanding the foregoing provisions of this Section 7.07(a), Purchaser shall be entitled to all rent under the Revenue Leases which comprises rental payments relating to any period (or portion thereof) on or after the Closing Date ("Post-Closing Period Revenue Leases Prepaid Rent"), and Sellers shall deliver to Purchaser at Closing); fuels; prepaid operating expenses; management fees in Closing by payment of an amount equal to any Post-Closing Period Revenue Leases Prepaid Rent.
(b) Sellers shall be responsible for paying all rent under the amount of 6% of prorated rents credited Ground Leases relating to Purchaser; real and personal property taxes prorated any period (or portion thereof) which ends on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period or prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on date immediately preceding the Closing Date. As applicable, and credited with respect to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-rent under any Ground Lease that has been paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing or for any utility deposits which the Seller has deposited with any utility company and which will be assigned comprises rental payments relating to the Purchaser at Closing. Assessments payable in installments which are due subsequent to any period (or portion thereof) on or after the Closing Date ("Post-Closing Period Ground Leases Prepaid Rent"), Purchaser shall be paid reimburse Sellers at Closing by Purchaser. If payment of an amount equal to the amount of any of the items to be prorated is not then ascertainablePost-Closing Period Prepaid Ground Lease Rent.
(c) Utility charges, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Propertiespersonal property taxes, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect and similar items relating to the Properties. The fees or commissions payable to said consultants (if any) Assets shall be treated ratably adjusted among the parties at the Closing (or as a portion of soon as reasonably practicable thereafter to the real estate tax liability to be pro-rated as of extent that the allocation is undetermined by the Closing Date). All costs associated with telephone directory listings Subject to Section 3.01(k) regarding the allocation of Transfer Taxes And Charges, and any other prepaid advertisements shall be prorated as without limiting the foregoing provision of the Closing Date so that Seller this Section 7.07(c), Sellers shall be responsible for taxes relating to the Assets regarding any costs associated therewith period (or portion thereof) which ends on or prior to the date immediately preceding the Closing Date and Purchaser shall be responsible for all taxes relating to the Assets regarding any costs associated therewith arising from and period (or portion thereof) on or after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenantsTenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants Tenants for the period prior to the Closing Date less any amount previously paid by the tenants Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the day before the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled matters referred to a commission based on services rendered and in Paragraph 12.2 below. If the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible have collected from Tenants any payments for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described utilities, taxes, common area expenses, or other operating expenses in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions excess of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property amounts incurred by Seller for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall receive a credit for such excess amounts. If Seller is credited for any utilities, taxes, common area expenses, or other operating expenses in excess of amounts incurred by Seller for any period prior to the Closing Date, then Purchaser shall receive a credit for such excess amounts. If Seller is credited for any utilities, taxes, insurance, common area expenses or other expenses which Seller has paid applicable to the period prior to the proration date and which are reimbursable by Tenants after the Closing, the amount of the credit shall be responsible held in escrow by the Title Company and shall be released to Seller when payment is made by the Tenant. Finally, Purchaser shall receive a credit on the Closing Date in the amount of $276,068.00 pursuant to the March 24, 1997 Beazer East, Inc. settlement relating to roof repairs.
12.2. All basic rent paid by any Tenant of the Property who is indebted under a Lease for basic rent for any period prior to and including the Closing Date or any utility charges, insurance premiums, real property taxes, personal property taxes, or operating expenses rebated or refunded relating to any periods prior to the Closing Date but received by Purchaser after the Closing Date shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay same such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and the cost of performing Seller's audit. Paragraph 12.2 of this Agreement shall survive the Closing and the delivery and recording of the deed. If, following the Closing, Seller receives any rebates or refunds of utility charges, insurance, real or personal property taxes or operating expenses relating to periods after the Closing Date, the amount of such rebate or refund shall be paid to Purchaser, and Purchaser shall indemnify, defend and hold harmless the Seller against the claims of Tenants with respect to such funds. The provisions of this paragraph shall be confirmed at and shall survive Closing.
12.3. Any percentage rent attributable to a specified period ("Percentage Rent Period") ending prior to the Closing Date shall be promptly paid over to Seller if and when collected. Seller shall be entitled to all percentage rent attributable to the period prior to the Closing Date for any Percentage Rent Period ending prior to the Closing Date. Percentage rent payable with respect to a Percentage Rent Period a portion of which occurs prior to the Closing Date and a portion of which occurs subsequent to the Closing Date (but no such payment shall accrue to be apportioned between Seller and Purchaser on the benefit basis of their respective period of ownership during the applicable Percentage Rent Period. This Paragraph 12.3 shall survive the Closing and the delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Pension Investors Iv)
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits (to the extent such Security Deposits have not yet been applied toward the obligations of any Tenant under the Leases) and any prepaid rents, together with interest required to be paid to Tenants thereon.
(iii) Utility charges payable by Seller, including, without limit.ation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than three (3) Business Days prior to the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas a per diem adjustment shall be prorated at made for the days between the meter reading date and the Closing Date based on the most recent ascertainable datameter reading.
(iv) Amounts payable under the Construction Contracts.
(v) Amounts payable under the Spectrasite Agreements (unless Purchaser complies with the requirements in Section 3.2).
(vi) Ad valorem taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of ad valorem taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, ad valorem taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Any and all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing shall be prorated in the same manner as ad valorem taxes set forth above. Seller shall pay at Closing the bills therefor will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ClosingProration Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Proration Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser The estimated Closing prorations shall be charged its portion of such payment at Closingset forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). No proration The Closing Statement, once agreed upon, shall be made for utility expenses that are separately metered to and paid directly signed by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Date, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable databest evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. The Purchaser shall assume No prorations will be made in relation to insurance premiums, and Seller's obligations under the Seller's existing real estate tax consulting agreements with respect insurance policies will not be assigned to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered Purchaser. Final readings and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (final ▇▇▇▇▇▇▇▇ for utilities will be made if any) shall be treated as a portion of the real estate tax liability to be pro-rated possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall , in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedutility bills. Seller will be entitled to all deposits presently in effect with the utility providers, however, that such prorations shall and Purchaser will be deemed final and not subject obligated to further post-closing adjustments at 5:00 PM Chicago time on make its own arrangements for any deposits with the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustmentutility providers. The provisions of the preceding sentence shall this Section 10.4(a) will survive the ClosingClosing for twelve (12) months.
13.2(b) Purchaser will receive a credit on the Closing Statement for all unpaid amounts under the Construction Contracts assumed by Purchaser hereunder to the extent such amounts relate to incomplete tenant improvements contemplated by the relevant Lease. Rents which are delinquent Purchaser will also receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing Date shall not be proratedand attributable to any period following the Proration Time. Instead"RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proportionate share of building operation and maintenance costs and expenses as provided for under its Lease, to the extent that Purchaser is able to collect said delinquenciesthe same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion Leases or from other occupants or users of the Real Property for any period prior to the date of Closing, free from any claim thereon by the SellerProperty. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day Rental is "DELINQUENT" when it was due prior to the Closing Date, provided that Seller shall and payment thereof has not agree been made on or before the Proration Time. Delinquent Rental will not be prorated. With respect to reduce rents for any period of time after Closing Tenants still in order occupancy, Purchaser agrees to induce any tenants use commercially reasonable efforts with respect to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent Delinquent Rental, but Purchaser will have no liability for the failure to collect any period prior such amounts and will not be required to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned pursue legal action to the Purchaserenforce collection of any such amounts owed to Seller by any Tenant. FurthermoreWith respect to Tenants no longer in occupancy, the Seller shall not have reserves the right to retain any portion pursue the collection of any security deposit held Delinquent Rental. All sums collected by Purchaser from and after Closing from each Tenant (excluding tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to current Rental (which may include delinquencies owed to Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the calendar month of Closing) and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees Notwithstanding anything contained in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior Agreement to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Datecontrary, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser Buyer shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to following amounts:
9.1 the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the total amount of any of all security deposits provided for in the items Leases, together with interest thereon in the amounts set forth in or as required to be prorated is not then ascertainableaccrued, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations as applicable, under the Seller's existing real estate tax consulting agreements with respect to Leases, regardless of whether the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees tenants under such Leases actually paid such security deposits or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationsinterest was actually earned thereon; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date Buyer shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive a credit against the Purchase Price for any security deposits that are provided for in any Lease which have not been collected by Seller but as to which Seller has provided Buyer a release from such delinquent rent tenant thereunder, in form and substance acceptable to Buyer, with respect to such security deposit;
9.2 any prepaid rents and/or free rental periods under the Leases attributable to a tenant's occupancy of a portion of the Real Property for any period prior to after the date of Closing, free from any claim thereon including, without limitation: (i) rent prepaid by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing DateE. ▇▇▇▇▇▇ & Associates, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek Inc. (by legal action or otherwise"S▇▇▇▇▇") the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent certain Lease before dated August 4, 1997 between Center Office and S▇▇▇▇▇ for the period from the Closing Date through February 15, 1997; and said (ii) rent prepaid by JPR Capital Corp. ("JPR") under that certain Lease is not assigned to dated December 12, 1996 between Center Office and JPR for the Purchaser. Furthermoremonths of December, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) 1997 and December 1998;
9.3 $48,420.00 with respect to any Center Retail's obligation under the A▇▇▇▇▇ Lease to reimburse A▇▇▇▇▇ for tenant improvements currently under construction, which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent reimbursement has not been paid by Center Retail as of the Closing Date.;
13.3. To the extent it is reasonably possible for the Seller 9.4 $27,702.00 with respect to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each Center Office's obligation under EXHIBIT D of the Properties pursuant Dialysis Centers Lease to the following terms and conditions:
(a) The temporary license granted reimburse Dialysis Centers for tenant improvements, which reimbursement has not been paid by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to Center Office as of the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, ;
9.5 $47,073.75 with respect to each Property without additional compensation the Landscape Obligation; and
9.6 $300,000.00 with respect to payment of the "Product Improvement Plan" imposed by Radisson Hotels International Inc. in connection with the Assignment and Assumption of License Agreement for Radisson Suite Hotel Boca Raton. The credits for which provision is made in the foregoing SUBPARAGRAPHS 9.1 through 9.6 constitute full settlement of all obligations of Seller to Buyer with respect to the Seller except as matters set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Sellertherein.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Real Property (Arvida JMB Partners L P)
Prorations. 13.1. Rents (exclusive Subject to the terms of delinquent rentsthis Section 9.1, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period or prior to the Closing Date less any amount previously paid by Closing, the tenants parties shall be credited to Seller; and other similar items shall be adjusted ratably prorate, as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to date immediately preceding the Closing Date shall be paid (the “Prorations Time”), all income and expenses with respect to the Property and payable to or by Purchaser. If the amount of any of the items to be prorated is not then ascertainableLLC, the adjustments thereof shall be including, without limitation: (i) all real property taxes on the basis of the most recent ascertainable data. The Purchaser fiscal period for which assessed (if the Closing shall assume Seller's obligations occur before the tax rate is fixed, the apportionment of taxes shall be based on the tax rate for the preceding period applied to the latest assessed valuation); (ii) rents and other tenant payments and tenant reimbursement, if any, received under the Seller's existing real estate tax consulting agreements Leases; (iii) charges for water, sewer, electricity, gas, fuel, steam, vault taxes and other utility charges (other than those charges required to be paid directly to the utility company by Tenant) all of which shall be read promptly before the Closing; (iv) periodic fees for licenses, permits or other authorizations with respect to the Properties, i.e., those agreements which Seller has entered into Property; and (v) all other items customarily prorated in connection with firms who are entitled to a commission based on services rendered and transactions of the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Propertiestype contemplated by this Agreement. The fees or commissions payable to said consultants (if any) A further proration shall be treated as a portion of made between the real estate parties when the tax liability to be pro-rated as of b▇▇▇ for the tax year in which the Closing Dateoccurs becomes available. All costs associated In conjunction with telephone directory listings such prorations, Seller will assign to Purchaser its share of all utility deposits which are assignable (and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to credited with such amounts). In connection with the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions calculation of the preceding sentence shall survive Purchase Price under Section 2.1 hereof, it is anticipated that the Closing.
13.2. Rents which are delinquent as items prorated hereunder will be adjusted on an aggregate basis against the net proceeds of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion hypothetical sale of the Real Property for any period prior to $362,000,000. Accordingly, for purposes of adjusting the date Purchase Price between Purchaser, in its capacity as purchaser of ClosingSeller’s LLC Interest, free from any claim thereon by the and Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period in its capacity as seller of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. FurthermoreSeller’s LLC Interest, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as bear 66 2/3% of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documentsamounts debited hereunder, and shall not use receive 66 2/3% of the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration amounts credited hereunder, for the license herein granted.
(c) items of income and expenses prorated or adjusted hereunder for periods on or before the Proration Time, and Purchaser shall make arrangements with bear 66 2/3% of the pertinent telephone companies so that all existing telephone directory listings amount debited hereunder, and advertisements shall receive 66 2/3% of the amounts credited hereunder for the items of income and signs can be replaced in due course and within the license period specified above. In the event that the publication close date expense prorated or adjusted hereunder for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs periods after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after ClosingProrations Time.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement (Overseas Partners LTD)
Prorations. 13.1. Rents actually collected for the calendar month in which the Closing occurs (exclusive of delinquent rentsDelinquent Rent, as hereinafter defined, but including prepaid rentsrents covering a period subsequent to Closing); prepaid associations dues, refundable security deposits (which will be assigned to water and assumed by Purchaser and credited to Purchaser at Closing)other utility charges; fuels; prepaid operating expenses; management fees in revenues and expenses covering a period subsequent to Closing (including payments made to Seller arising out of or related to the amount of 6% of prorated rents credited to PurchaserOPA (defined below), the Redevelopment Plan (defined below) or any affordable housing regulations); real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items“Property Taxes”); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar revenue and expense items shall be adjusted ratably as of 11:59 p.m. P.M. Pacific Time on the Closing Date (“Proration Date”), and credited or debited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, All regular and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for supplemental taxes and assessments attributable to the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date shall be paid by the responsibility of Seller. All regular and supplemental taxes and assessments attributable to the period after the Closing Date shall be the responsibility of Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments adjustment thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with With respect to Property Taxes, if Closing occurs before the Propertiescurrent fiscal year’s tax bills are available, i.e., those agreements which Seller has entered into with firms who are entitled to a commission the proration will be based on services rendered upon the previous fiscal year’s tax ▇▇▇▇ and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) proration shall be treated as a portion readjusted and settled by Seller and Purchaser within ten (10) business days after such tax ▇▇▇▇ is issued. If special assessments have been levied against the Property for improvements, then the amount of the real estate tax liability any installments which are attributable to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith periods on or prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from paid by the Seller; and the amount of installments which are attributable to periods after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which Date shall be deemed final as paid by the Purchaser. If any charges, expenses or other items to be prorated hereunder are unavailable on the Closing Date, a readjustment will be made within ten (10) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) business days following Closing, at which time all prorations shall be deemed final the availability of accurate bills and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closingfigures.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale (Behringer Harvard Multifamily Reit I Inc)
Prorations. 13.1. Rents 5.2.1 All revenues, including without limitation, rentals, prepaid rentals and prepaid payments (exclusive of delinquent rentscollectively, but including prepaid rents"Rent"); prepaid associations dues, refundable shall be prorated on the basis that Buyer shall receive a credit for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing and for all security deposits held by Seller (including interest thereon, as required by law). Seller shall not receive a credit for any Rent Seller has not received as of the Closing which will be assigned is allocable to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less Closing. If, after Closing, Buyer collects any amount previously Rent applicable to periods prior to Closing, such Rent shall first be applied to Rent due for the current period, if any, and the balance shall be promptly paid by the tenants shall be credited Buyer to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date. If, and credited after Closing, Seller collects any Rent applicable to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including rental periods after the Closing, and the Purchaser Seller shall promptly pay the utility bills therefor for all periods subsequent theretosame to Buyer. If the utility company will not issue separate billsFor such purposes, the Purchaser period for which Rent is applicable shall receive a credit against be the Purchase Price one designated in writing by the person paying such Rent or, if there is no such designation, the Rent shall be applied first to Rent due for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance current period, if any, with the balance applied in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any inverse order of the items Rent payments due from such Tenant.
5.2.2 All expenses, including without limitation, utilities and all other expenses to be prorated is not then ascertainable, operate the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements Property shall be prorated as of the Closing Date so that Seller Closing.
5.2.3 Real estate taxes shall be prorated at the Closing on the basis of 100% of the most recent tax bills for the Property. Taxes will then be reprorated upon receipt of actual bills for the applicable periods and the responsible party will promptly pay the difference to the other party. This provision will survive Closing.
5.2.4 Unless the Existing Financing is paid as provided in Section 3.7, an amount equal to payments of interest and deposits due under the Existing Financing, including without limitation, the repair escrow, the replacement reserve escrow fund, the real estate tax escrow, the hazard insurance escrow, and the mortgage insurance escrow, shall be paid to Seller at Closing.
5.2.5 With respect to any of Seller's employees that Buyer chooses to hire, Seller agrees to pay those employees for any costs associated therewith accrued vacation or sick time they have earned prior to Closing.
5.2.6 All prorations under this SECTION 5.2 shall be adjusted, if necessary, and completed after the Closing Date as soon as final information becomes available. Seller and Purchaser shall be responsible for any costs associated therewith arising from Buyer agree to cooperate and use their best efforts to complete such prorations no later than sixty (60) days (except with respect to real estate taxes) after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Home Properties of New York Inc)
Prorations. 13.1. Rents 5.2.1 Rentals from Leases (exclusive of delinquent rentsincluding fixed monthly rentals and other periodic rentals, but including additional rentals, percentage rentals, operating cost pass-throughs and other sums and charges payable by the tenants), prepaid rents); rentals and prepaid associations duespayments (collectively, refundable “Rent”) shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all security deposits (which will be assigned to actually held by Seller and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, Rent which Seller has actually received before the Closing which is allocable to the period after the Closing. Seller shall not receive a credit for such items); operating expenses which are reimbursable by any Rent Seller has not received as of (the tenants for Closing that is allocable to the period prior to the Closing. If Buyer shall collect any such Rent (including without limitation percentage rent) after the Closing Date less any amount previously paid by allocable to the tenants period prior to the Closing, Buyer shall be credited promptly pay the same to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance after application of the cash same to any rent due at from the applicable Tenant after the Closing. Utilities, including water, sewer, electric, and gas .
5.2.2 Real estate taxes shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable dataassessed valuation of and rates and multiplier applicable to the Property. The Purchaser If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall assume Seller's obligations under make any necessary adjustment after Closing by cash payment upon demand to the Seller's existing real estate tax consulting agreements party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which are allocable to the period after the Closing).
5.2.3 Seller shall endeavor to have all of its utility accounts with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated Property closed out effective as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements ; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs).
5.2.4 Common area and maintenance charges, property taxes, insurance and other operating cost pass-throughs payable by Tenants which accrue as of the Closing Date, but which are not then due and payable (collectively, the “Operating Expenses”), shall not be prorated, except as herein provided. Buyer shall receive and retain any Operating Expenses paid by Tenants on or after the Closing Date so that and Seller shall be responsible for receive and retain any costs associated therewith Operating Expenses paid by Tenants prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject any monthly or periodic deposits or payments of estimated Operating Expenses with respect to further post-closing adjustments at 5:00 PM Chicago time the month in which the Closing occurs received by Seller prior to the Closing Date or by Buyer on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of or after the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent prorated as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Buyer and Seller shall grant (or shall arrange for the owner thereof prorate at Closing, actual Operating Expenses collected by Seller from Tenants prior to grant) Closing with actual Operating Expenses paid by Seller with respect to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser so that if there are any rebates owing to Tenants for the period of Seller’s ownership, Seller shall have pay Buyer the right to use the existing logos, in place advertising, telephone directory listings and advertisementsamount of such rebates at Closing, and telephone numbers, if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to each Property without additional compensation the period of Seller’s ownership, Buyer shall promptly pay Seller the amount so owed to the Seller except as set forth in Paragraph 13.1 herein. Purchaser landlord upon Buyer’s receipt of the same (and Buyer shall exert diligent good faith efforts to collect the same but shall not use the existing logos required to terminate any Lease or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name evict any Tenant in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified aboveconnection therewith). In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller Any prorations under this Agreement based upon monthly amounts shall be entitled to based upon a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
thirty (d30) In the event day month; any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser prorations under this Agreement based upon annual amounts shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute based upon a credit against a debt otherwise owed by the Seller to said third party)366 day year.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Prorations. 13.16.2. Rents 1Prorations. All income and expenses of the Property shall be apportioned as of 12:01 a.m. EST on the Closing Date, with the Operating Partnership being deemed to be the owner of the Property during the entire day on which the Closing Date occurs and being entitled to receive all revenue of the Property, and being obligated to pay all expenses of the Property, with respect to such day.
(exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits a) Such prorated items shall include the following:
(which will be assigned i) any other income with respect to and assumed the Property received by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityClosing Date, if any, and for the current month not yet delinquent. Such proration shall be based on an operating statement updated not less than 1 day prior to the Closing Date;
(ii) taxes and assessments (including personal property taxes on the Fixtures and Personal Property) levied against the Property, the Contributor, subject to the Escrow Agents approval, shall escrow the funds for real estate taxes now due or delinquent for 2021, or that may becoming due and payable against the Property up and to Closing. For the avoidance of doubt, the foregoing escrow requirement is an accommodation to the Contributor to pursue payment of the its tax ▇▇▇▇, however, under no circumstance shall any delinquent payment of taxes occur or a lien be created, and if for any reason the Contributor cannot satisfy the amounts, then the Escrow Agent shall be directed to pay the then due and owing taxes.
(iii) utility charges for which the Contributor is liable, if any, such charges to be apportioned at the Closing on the basis of the most recent meter reading occurring prior to the Closing (dated not more than 15 days prior to the Closing) or, if unmetered, on the basis of a current ▇▇▇▇ for each such utility;
(iv) all amounts payable with respect to Assumed Liabilities in effect as of the Closing;
(v) credit shall be given to the Contributor for interest accounts, impound accounts, escrow accounts and other reserves included within the Existing Loans, which shall be transferred to the Operating Partnership at the Closing;
(vi) room charges for the night before the Closing Date and ending on the morning of the Closing Date shall be split between the Contributor and the Operating Partnership on a fifty/fifty (50/50) basis and
(vii) any other operating expenses or other items pertaining to the Property which are customarily prorated between a transferor and transferee of real estate in the county in which the Property is located.
(b) Notwithstanding anything contained in this Section 6.2.1, the following shall apply:
(i) The Operating Partnership shall be entitled to a credit against the Contributor’s Total Consideration to be delivered for the total sum of all deposits with respect to the Assumed Liabilities (not including interest accounts, impound accounts, escrow accounts and other reserves included within the Existing Loans, which shall be addressed in accordance with Section 6.2.1(a)(v) above) (the “Property Deposits”) to the extent not paid over to the Operating Partnership, and the Operating Partnership shall assume at the Closing the obligation under the Assumed Liabilities with respect to all Property Deposits credited or paid over to the Operating Partnership;
(ii) Except as provided in the following sentence, all delinquent real estate taxes and assessments shall be paid by the Contributor at or before the Closing, together with any interest, penalties or other fees related to any delinquent taxes. In determining prorations relating to non-delinquent taxes, the Operating Partnership shall be credited with an amount equal to the real estate taxes and assessments applicable to the period prior to the Closing Date, to the extent such amount has not been actually paid by the Contributor. In the event that the Contributor has paid prior to the Closing any real estate taxes or assessments related to the Property applicable to the period after the Closing Date, the Contributor shall be entitled to a credit for such items); operating expenses amount. In connection with the re-proration of real estate taxes and assessments for which are reimbursable a credit was given or a proration was made at the Closing, the Parties shall adjust the differences between them promptly upon demand being made therefor by either the tenants for Contributor or the Operating Partnership. If, after the Closing, any additional real estate taxes or assessments applicable to the period prior to the Closing Date less are levied for any amount previously paid by reason, including back assessments or escape assessments, then the tenants Contributor shall pay all such additional amounts, including any additional fees and interest, if any. If, after the Closing, the Contributor or the Operating Partnership receive any property tax refunds regarding any Property relating to a period prior to the Closing, then that portion of the refunds related to a period prior to the Closing that is required to be refunded to any tenant of the Property shall be credited delivered to Seller; or retained by, as the case may be, the Operating Partnership for the purpose of making such refund payments with the remaining portion of such refunds retained by or delivered to, as the case may be, the Contributor. The Operating Partnership shall pay all supplemental taxes resulting from the change in ownership and other similar items reassessment occurring as the result of the Closing pursuant to this Agreement;
(iii) The Operating Partnership shall take all steps necessary to effectuate the transfer of all utilities to the name of the Operating Partnership as of Closing, where necessary, post deposits with the utility companies, and provide the Contributor with written evidence of the transfer at or prior to Closing. The Contributor shall be adjusted ratably entitled to recover any and all deposits held by any utility company as of 11:59 p.m. the Closing Date;
(iv) The net proration credit to or charge against the Contributor on account of the prorations adjustments to be made upon the Closing shall be reflected through an adjustment to the cash portion of the Contributor’s Total Consideration to be delivered pursuant to this Agreement. Any other proration adjustments made following the Closing shall be made in cash; and
(v) If any prorations hereunder cannot be calculated accurately on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas then they shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill calculated as soon after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date as feasible. Either party owing the other party a sum of money based on such subsequent proration(s) shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect promptly pay said sum to the Propertiesother party, i.e.with interest per annum at the prime rate of interest as set forth in The Wall Street Journal, those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of plus 2% from the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date date of payment if payment is not made within 10 business days after delivery of a ▇▇▇▇ therefor. Once all revenue and Purchaser expense amounts have been finally and completely ascertained, the Operating Partnership shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes prepare a final proration statement which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing Contributor’s reasonable approval. Upon the Contributor’s acceptance and to correct approval of any errors made at final proration statement submitted by the Closing with respect to Operating Partnership, such prorations; provided, however, that such prorations statement shall be conclusively deemed final to be accurate and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3final. To the extent it any reconciliation is reasonably possible for the Seller to do sorequired, the Seller Operating Partnership shall grant (or shall arrange for be permitted to offset any amounts by adjusting the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant Series T Limited Units transferred to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerContributor.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Contribution Agreement (Lodging Fund REIT III, Inc.)
Prorations. 13.1All revenues, income, receiv ables, costs, ex▇▇▇▇▇s and payables of the Property shall be apportioned equitably between the parties as of Closing on the basis of the actual number of days in a particular month, and with respect to the items enumerated below where a particular manner of apportionment is provided, then apportionment of such item shall be made in such manner. Rents The obligation to make apportionments shall survive Closing. Without limitation, the following items shall be so apportioned:
(exclusive i) Monthly rents and percentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Tenant Lease). To the extent Purchaser receives amounts on account of Tenant Leases on or after the Closing Date, such payments shall be applied (except as to the lease with the County of Los Angeles) first toward then current rent owed to Purchaser in connection with the applicable Tenant Lease for which such payments are received, and any excess monies received shall be applied toward the payment of any delinquent rents, but including prepaid rents); prepaid associations dueswith Seller's share thereof being promptly delivered to Seller. With respect to the Tenant Lease with the County of Los Angeles, refundable security deposits (which will be assigned to and assumed however, first payments collected by Purchaser shall be delivered to Seller until all arrearages and credited delinquencies have been satisfied. Notwithstanding any of the foregoing, in the event that Purchaser within six (6) months after Closing alters the financial terms of any Tenant Lease of 2,500 square feet or less pursuant to which Seller is owed delinquent rents or charges, then, with respect to rents or charges under such Tenant Lease that are first received by Purchaser after the alteration of the financial terms by Purchaser, such payments shall be payable first as follows: (x) first to Seller for the delinquent rents or charges which are attributable to the two (2) month period just prior to the Closing and (y) second to Purchaser at Closing); fuels; prepaid operating expenses; management fees in for any then outstanding rental obligations which first become due and payable on or after the amount of 6% of prorated Closing and (z) third to Seller for any remaining delinquent rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses or charges which are reimbursable by the tenants for attributable to the period prior to the Closing Date less Closing. For the purpose of the preceding sentence an eviction or termination of any amount previously paid by tenant's occupancy is not an alteration of the tenants shall be credited financial terms of any Tenant Lease. Purchaser 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 its 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 to Seller; . Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or declare a default in any Lease). With respect to delinquent rents and any other similar items shall be adjusted ratably amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of 11:59 p.m. on the Closing Date, Seller shall retain all rights relating thereto.
(ii) Real estate and credited personal property taxes and any special assessments, taking into consideration discounts for the earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Seller and Purchaser if current tax rates differ from the latest previous tax rates as soon as the same are known. Seller agrees that to the balance extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, at any time subsequent to Closing but with reference to any period prior thereto during Seller's ownership thereof, Seller shall promptly pay to Purchaser an amount equal to such additional assessments or levies applicable to such period. Similarly, if tax refunds become payable for periods during Seller's ownership of the cash due at ClosingProperty, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Seller) shall be promptly paid over to Seller. UtilitiesIn the event that any assessments on the Property are payable in installments, including water, sewer, electric, and gas then the installment for the current period shall be prorated at (with Purchaser assuming the obligation to pay any installment due after the Closing based Date). In no event shall Seller be charged with or be responsible for any increase in the taxes on the most recent ascertainable data. Seller shall pay at Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing the bills therefor for the period to and including the ClosingDate.
(iii) Transferable annual permits, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate billslicenses, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's addressand/or inspection fees, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainableany, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under duration of the Seller's existing real estate tax consulting agreements with respect to the Propertiessame;
(iv) Security Deposits, i.e.plus accrued interest, those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability , payable thereon to be pro-rated as of the Closing Date. All costs associated with telephone directory listings tenants, and any other deposits and prepaid advertisements rent, shall be prorated as of credited (or assigned) to Purchaser;
(v) Utility charges levied against Seller or the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date Property, and Purchaser shall be responsible transfer all such utility services to its name and account immediately upon Closing;
(vi) Service Contracts on the basis of the charge or premium for any the period involved;
(vii) Tenant improvements costs associated therewith arising from and leasing commissions for leases, amendments and renewals signed after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which January 10, 1997, shall be deemed final as prorated on the Closing Datepaid by Purchaser if approved by Purchaser in accordance with Paragraphs 7(a) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party7(b).
(eviii) Purchaser's temporary license set forth All other operating expenses incurred in this paragraph shall expire on the date(s) set forth abovemanagement and operation of the Property. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser No insurance policies shall be liable for assigned hereunder, and accordingly there shall pay to the owner be no proration of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysinsurance premiums.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Sellers and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing DateDate (the “Closing Time”), the following (collectively, the “Proration Items”): all non-delinquent real estate, personal property and credited ad valorem taxes and assessments on the Property for the year in which Closing occurs as to the balance of the cash due at Closing. Utilities, including water, sewer, electric, Washington Properties and gas shall be prorated at Closing on an accrual basis based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor applicable tax year, which is July 1, 2016 through June 30, 2017, rather than on a calendar year basis for the California Properties, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (b) below) and operating expenses payable by the owners of the Property (on the basis of a 366 day year, actual days elapsed). Sellers will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ClosingClosing Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Closing Time. If the utility company will Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Sellers and submitted to Purchaser for Purchaser’s approval (which approval shall not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities be unreasonably withheld) seven (so long as no more than thirty (307) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Sellers and delivered to the Title 51 Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Sellers (if the preliminary prorations result in a net credit to Sellers) or by Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Time, including the final tax ▇▇▇▇, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the Seller's existing real estate tax consulting agreements with respect basis of the actual figures, and a final cash settlement will be made between Sellers and Purchaser, subject to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled Final Proration Date (as defined below) limitation. No prorations will be made in relation to a commission based on services rendered and insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Sellers’ insurance policies will not be assigned to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the PropertiesPurchaser. The fees or commissions payable to said consultants (Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if any) shall be treated as a portion of the real estate tax liability to be pro-rated possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedutility bills (except to the extent covered by the proration of Operating Expense Recoveries). Sellers will be entitled to all deposits presently in effect with the utility providers, however, that such prorations and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be deemed final made by Purchaser and not subject to further post-closing adjustments at 5:00 PM Chicago time Sellers on or before the day which is thirty end of the Survival Period (30) days following Closingherein, at which time all prorations shall be deemed final and not subject to further post-closing adjustmentthe “Final Proration Date”). The provisions of the preceding sentence shall this Section 10.4 (excluding subsection (e) which is governed by Section 3.2 above), will survive the ClosingClosing until the Final Proration Date, and in the event any items subject to proration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4.
13.2. Rents which are delinquent (b) Purchaser will receive a credit on the Closing Statement for (i) the Acceleration Fee (as defined in the Qanta Lease) payable by Qanta Tenant to the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Center Seller under the Qanta Lease, and (ii) the prorated amount (as of the Closing Date shall Time) of all Rentals previously paid to and collected by Sellers and attributable to any period following the Closing Time. After the Closing, Sellers will cause to be paid or turned over to Purchaser all Rentals, if any, received by Sellers after Closing and properly attributable to any period following the Closing Time. “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include such Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease) payable to Seller under the Tenant Leases or from other occupants or users of the Individual Property, excluding specific tenant ▇▇▇▇▇▇▇▇ which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to For a tenant's occupancy period of a portion of the Real Property for any period prior to the date of Closing, free sixty (60) days from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree Purchaser agrees to reduce rents for any period of time after Closing in order use good faith collection procedures with respect to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent Delinquent Rentals, but Purchaser will have no liability for the failure to collect any period prior such amounts and will not be required to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned conduct lock-outs or take any other legal action to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion enforce collection of any security deposit held such amounts owed to Sellers by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as Tenants of the Closing Date.
13.3Property. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser Sellers shall have the right to use the existing logospursue Delinquent Rentals after Closing, in place advertising, telephone directory listings and advertisements, and telephone numbers, with provided that Sellers shall not exercise any such remedy for a period of sixty (60) days after Closing. With respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. any Delinquent Rentals received by Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing DateSurvival Period, Purchaser shall have pay to Sellers any rent or payment actually collected during the right Survival Period properly 52 attributable to place the period prior to the Closing Time. All sums collected by Purchaser during the Survival Period, from such Tenant (excluding Tenant payments explicitly identified by the Tenant as payment for a listing and/or advertisement specific rental period, or payments for Operating Expense Recoveries attributable to the period prior to the Closing Time and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationgoverned by Section 10.4(d) below, and in the event that Seller decides to place such a listing and/or advertisement, Seller all of which shall be entitled payable to a pro-rata credit for and belong to Sellers in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such portion of the cost of such listing and/or advertisement Tenant to Purchaser (including Delinquent Rentals attributable to the period after the Closing Time), then any collection costs of Purchaser related to such Tenant, and then to prior delinquencies owed by Tenant to Sellers. Sellers shall be entitled to institute legal actions to pursue Delinquent Rental after a period of sixty (60) days after Closing.
, but in no event shall Sellers be permitted to institute eviction proceedings against any Tenant. Any sums collected by Purchaser and due to Sellers will be promptly remitted to Sellers, and any sums collected by Sellers and due to Purchaser will be promptly remitted to Purchaser. Sellers shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash Tenant Deposits (dto the extent the foregoing were made by Tenants under the Tenant Leases and are not applied or forfeited prior to the Closing) In to Purchaser on the event Closing Date. Sellers shall also use commercially reasonable efforts to transfer to Purchaser any Tenant Deposits that are held in the form of letters of credit (the “SD Letters of Credit”) if the same are transferable, at Sellers’ cost (including Sellers’ payment of any third party (transfer fees and expenses); if any of the SD Letters of Credit is not transferable, Sellers shall request the Tenants obligated under such SD 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, Purchaser and Sellers shall diligently pursue such replacement after Closing and Sellers shall take all reasonable action, as telephone company or billboard company) makes a separate charge for directed by Purchaser and at Seller’s expense, in connection with the use presentment of such listings or advertising subsequent to SD Letters of Credit for payment as permitted under the Closing Dateterms of the applicable Tenant Lease, then and in consideration of Sellers’ agreement as aforesaid, Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit indemnify, defend and hold Sellers harmless from any liability, damage, loss, cost or expense resulting from an alleged wrongful drawing upon any of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date SD Letters of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day Credit after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysClosing.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing DateDate (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and credited personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the balance terms of (b) below), operating expenses payable by the owner of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based Property (on the most recent ascertainable databasis of a 365 day year, actual days elapsed) and amounts payable under Service Contracts assumed by Purchaser on an accrual basis. Seller shall pay all amounts due thereunder which accrue prior to the Closing and Purchaser shall pay all mounts accruing on the Closing Date and thereafter. All capital and other improvements (including labor and materials) which are performed or contracted for or by Seller at or prior to the Closing will be paid by the bills therefor Seller at or prior to Closing, without contribution or proration from Purchaser. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ClosingClosing Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld, delayed or conditioned) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the utility company actual amounts of the Proration Items are not known as of the Closing Time, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not issue separate billsbe assigned to Purchaser except as otherwise provided in Section 9 above. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall receive a credit against the Purchase Price for Seller's portion be made by Purchaser and shall pay the entire utility bill Seller within sixty (60) days after Closing. If Seller h▇▇ ▇re-paid any , provided that such utilities (so long reconciliation, as no more than it relates to real estate taxes shall be made within thirty (30) days following the issuance of the tax bills for the Real Property for the year in advance which Closing occurs. The provisions of this Section 10.4 will survive the Closing until the date which is six (6) months following the Closing Date (the “Reconciliation Period”), and in the ordinary course event any items subject to proration hereunder are discovered within such period, the same shall be promptly prorated by the parties in accordance with the terms of businessthis Section 10.4. Seller and Purchaser, pursuant to RCW 60.80.020(1), then hereby waive the services of Title Company in administering the disbursement of closing funds necessary to satisfy any unpaid utility charges. Purchaser shall transfer all utilities at the Property to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Seller shall use commercially reasonable efforts to cause all utility meters to be charged its portion read as of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and SellerClosing Date. Seller shall be reimbursed at Closing for entitled to recover any utility and all deposits which the Seller has deposited with held by any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements charges for utilities shall be prorated as outside of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and escrow contemplated herein within sixty (60) days after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on made in accordance with customary practice in the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day jurisdiction in which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to is located, except as expressly provided herein. Following the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller Purchaser shall not agree to reduce rents for any period of time after Closing reasonably cooperate with each other in order to induce any tenants calculate and determine the correct amount of all prorations required to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties be made pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerSection 10.
(b) The Seller stipulates that there is full and adequate consideration Purchaser will receive a credit on the Closing Statement for the license prorated amount (as of the Closing Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” as used herein granted.
includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (c) Purchaser shall make arrangements with which include each Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the pertinent applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone companies so that all existing telephone directory listings receipts, locker rentals, vending machine receipts and advertisements other sums and signs can be replaced in charges payable to Seller or its successor by Tenants under the Tenant Leases or from other occupants or users of the Property, excluding specific tenant ▇▇▇▇▇▇▇▇ which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due course prior to the Closing Time and within the license period specified above. In the event that the publication close date for any publication in which Seller currently payment thereof has a telephone directory listing and/or advertisement occurs after the date hereof but not been made on or before the Closing DateTime. Delinquent Rentals will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser shall will have no liability for the right failure to place a listing and/or advertisement collect any Delinquent Rentals payable to Seller and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. All sums collected by Purchaser within one (1) year after Closing from each Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time governed by Section 10.4(c) below and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationgoverned by Section 10.4(d) below, and in the event that Seller decides to place such a listing and/or advertisement, Seller which shall be entitled payable to a pro-rata credit for and belong to Seller in all events) will be applied first to amounts currently owed by such portion of the cost of such listing and/or advertisement Tenant to Purchaser (including Delinquent Rentals attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing DateTime), then any collection costs of Purchaser related to such Tenant, and then to prior delinquencies owed by such Tenant to Seller. In no event shall be responsible to pay same subsequent to Seller initiate litigation or other legal action after the Closing Date (but no such payment shall accrue to the benefit pursue collection of the Delinquent Rentals. Any sums collected by Purchaser and due Seller or constitute a credit against a debt otherwise owed will be promptly remitted to Seller, and any sums collected by the Seller and due Purchaser will be promptly remitted to said third party)Purchaser.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits a) The following adjustments to the Purchase Price paid hereunder shall be made between Seller and Purchaser and shall be prorated (which will be assigned as applicable) on a per diem basis up to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; day immediately before the Closing Date:
(i) Accrued general real and personal property estate taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to Property (the “Taxes”) for the year of Closing shall be prorated as of the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance basis of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor actual taxes for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's addressyear, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainableknown, the adjustments thereof shall be or if unknown, on the basis of the most recent ascertainable datataxes, but in either case based on the maximum allowable discount for early payment. The To the extent such Taxes are due and payable after Closing, Purchaser shall assume Seller's obligations under pay all such taxes when they become due and payable and, promptly thereafter, the Seller's existing real estate tax consulting agreements with respect parties shall re-prorate taxes with, if any amount is due, an appropriate payment from one party to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based other on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion basis of the real estate tax liability amount of taxes then due and payable. Prior to be pro-rated as of the Closing Date. All costs associated with telephone directory listings or at Closing, Seller shall pay or have paid all Tax bills which are due and any other prepaid advertisements shall be prorated as of payable prior to or on the Closing Date so and shall furnish evidence of such payment to Purchaser. Special assessments which are confirmed or become a lien prior to Closing and pending assessments for work substantially completed as of Closing shall be credited to Purchaser at Closing. Purchaser shall receive no credit for other pending special assessments.
(ii) Jupiter Park of Commerce Association annual assessments and dues for the year of Closing (the “Association Dues”);
(iii) Charges under Contacts to the extent assigned to, and assumed by Purchaser at Closing (the “Contract Fees”); and
(iv) South Florida Water Management District General Water Use Permit No. 50-25845-W fee and Palm Beach County Wellfield Operating Permit WP-91-054 annual fee (collectively, the “Permit Fees”).
(v) The value of any fuel stored on the Premises, if any, at the price then charged by Seller’s supplier, including any taxes.
(vi) water charges and sewer rents, if any, on the basis of the lien period for which assessed, except that if there is a water meter on the Premises, apportionment at the Closing shall be based on the last available reading, subject to adjustment after the Closing when the next reading is available.
(b) Immediately after Closing, Seller shall make available at its offices, all records, contracts, receipts for deposits, unpaid bills, and other papers or documents which pertain to the Property together with all keys and other items, if any, used in the operation of the Property. Except as otherwise expressly set forth in this Agreement, Seller makes no representations regarding the existence or adequacy of such documents or items for use in management or operation of the Property. The foregoing shall not include the separate books, records, correspondence, and other documentation of Seller located at its offices. After the Closing, Seller shall have the right to inspect the books and records of the Property for any purpose reasonably related to Seller's prior ownership of the Property. For purposes of all prorations provided for herein, Seller shall be responsible for any costs associated therewith all days up to and including the day immediately prior to the Closing Date Date, and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) all days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein grantedthereafter.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that Except as otherwise expressly provided in this Agreement (including Section 25 hereof), all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date pro-rations provided for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller herein shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingfinal.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to 15.1 Water and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants other utility charges due for the period prior to 12:01 a.m. on the Closing Date less any amount previously ("Proration Date") shall be paid by the tenants Seller. Regular ad valorem real estate taxes shall be credited to Seller; and other similar items prorated as of the Proration Date. Real Estate tax prorations shall be adjusted ratably as of 11:59 p.m. based on the Closing Date, and credited to the balance of the cash due maximum discounted rate available at Closing. UtilitiesPrior to Closing, including water, sewer, electric, Purchaser and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing notify all utilities providing service to the Property of the prospective change in ownership and that all bills therefor for the period from and after the Proration Date shall be paid by Purchaser, with no interruption in service. All utility deposits, if any, may be withdrawn by and refunded to Seller and including the Closing, and the Purchaser shall pay make its own replacement deposits for utilities as may be required by the utility bills therefor for all periods subsequent theretorespective utilities involved. If Assessments, excluding regular ad valorem real estate taxes, which are due prior to the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Closing Date shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments Assessments, excluding regular ad valorem real estate taxes, which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing If any ongoing real estate tax consulting agreements with respect contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the Propertiesconte▇▇, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as a portion of it relates to the real estate tax liability proration for the current tax year to the extent such tax contest is successful. All other prorations will be profinal except as to rent reconciliations referred to in Paragraphs 15.2 and 15.3 below and as provided in Paragraph 15.4.
15.2 All base rent, percentage rent and other common area maintenance, tax and insurance charges actually paid by tenants under the Leases and all other items of income actually received from the operation of the Property (all such charges other than base rent, "Additional Rent") shall be prorated as of the Proration Date. Purchaser shall receive a credit at Closing for all prepaid rent. To the extent the Leases provide for the adjustment of previously paid estimates of Additional Rent on a date after the Proration Date, Seller shall be entitled to receive, or shall be responsible to pay, as the case may be, its pro rata share of any such adjusted amounts which are applicable to periods ending prior to the Proration Date. Seller agrees that Seller shall promptly remit to Purchaser any rental or other payments that Seller, or any of its affiliates or agents, may receive post-rated Closing, except that Seller need not remit payments attributable to periods prior to the Proration Date if the tenant making such payment to Seller is current in all payments due to Purchaser for periods after the Proration Date. Purchaser shall deliver to each tenant of the Property (with a copy of each to Seller) a final reconciliation of Additional Rent due for calendar year 1996 on or before March 1, 1996. Purchaser shall use reasonable efforts (without any obligation to terminate leases or initiate lawsuits) to collect such Additional Rent from such tenants. On May 1, 1996, Purchaser shall provide Seller with a reconciliation of the amount of all Additional Rent collected from or refunded to tenants for calendar year 1996, and Purchaser and Seller shall reprorate such Additional Rent as of the Proration Date, within 10 days after Purchaser's delivery to Seller of such reconciliation. Notwithstanding anything to the contrary herein, the provisions of this Paragraph shall survive the Closing.
15.3 There shall be no credit to Seller for rent or other amounts delinquent as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of basic rent paid following the Closing Date so that Seller shall be responsible for by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser Property who is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent indebted under a Lease for basic rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date Proration Date in an amount greater than the amount of Closing, free from any claim thereon all current basic rent owed by the Seller. Seller may use whatever lawful means are available said tenant to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents Purchaser for any period of time periods on or after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is not assigned to the Purchaserpaid in full. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller Within ten (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall not use the existing logos its reasonable, good faith efforts, at no additional cost or trade name on stationery, business cards, contracts or other documentsexpense to Purchaser, and shall not use the existing trade name in responding without any obligation to oral inquiries regarding the Properties except terminate leases or initiate lawsuits, to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that collect all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified aboveamounts which, upon collection, would constitute Post-Closing Receipts hereunder. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 180 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expensefirst 150 days after the Closing Date. Such listing and/or advertisement may list Upon the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion delivery of the cost Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of such listing and/or advertisement attributable the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. This Paragraph 15.3 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
15.4 All refunds for time periods prior to the period after Closing.
Proration Date in connection with any ongoing real estate tax protests for the Property initiated by Seller prior to the Closing shall remain the property of Seller (dexcept to the extent required to be refunded to tenants under such tenants' leases) and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the event any third party (such as telephone company or billboard company) makes a separate charge for refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller subject to the use rights, if any, of any existing tenant of the Real Property to receive any pro rata share of such listings refund under such tenant's lease. Purchaser agrees, at no cost, expense, liability or advertising subsequent potential liability to Purchaser, to execute any documents reasonably requested by Seller in connection with such tax protests.
15.5 In addition to the foregoing prorations and credits, Landlord shall provide Purchaser at Closing Date, then with a credit of $139,192.75 (calculated as follows) in connection with certain tenant improvement costs to be assumed by Purchaser shall be responsible to pay same subsequent with respect to the Closing Date Lease with EBP Healthplans, Inc. (but no such payment shall accrue to "EBP") and the benefit Lease with Paxson Broadcasting of the Orlando ("▇▇▇▇▇n"): Paxson tenant im▇▇▇▇▇▇ent allowa▇▇▇▇ assumed by Purchaser: 2nd Amendment $ 45,018.75 3rd Amendment 177,186.00 Subtotal $222,204.75 Payment made by Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e$2,100.00) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date agreed share of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars Paxson improvement allowance ($100.0080,136.00) Purchaser credit to Seller for each day after the permitted date set forth above leasing commission paid for each Property for which Paxson amendment ($3▇,▇▇▇.00) Outstanding EBP tenant improvement balance under August 2, 1994 Lease $ 34,224.00 ----------- Net closing credit to Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.$139,192.75 ===========
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Pension Investors I)
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser5%; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled delinquent rent referred to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 12.2 below.
12.2. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of basic rent paid following the Closing Date so that Seller shall be responsible for by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser Property who is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent indebted under a lease for basic rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date and said Lease shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is not assigned to the Purchaserpaid in full. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller Within ten (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall not use the existing logos or trade name on stationeryits best efforts to collect all amounts which, business cardsupon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone number. upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller may also place a listing and/or advertisement in such publication, said additional Post-Closing Receipts and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 12.2 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series I)
Prorations. 13.1. Rents At the Closing, prorations between the applicable Seller, on the one hand, and Buyer, on the other hand, shall be made for each Property as follows:
(exclusive a) All general ad valorem taxes, special assessments and other taxes or charges of delinquent rentsa similar nature imposed by any Governmental Authority against a CLP Managed Property, but including prepaid rents); prepaid associations duesor by any applicable property owners association, refundable security deposits utility district or any other body (which will collectively, the “Impositions”) against the CLP Managed Properties for all prior years and all current year Impositions that are due and payable on or before the Closing Date, together with all payroll taxes, sales taxes, license taxes, liquor taxes and use taxes that are due and payable with respect to the CLP Managed Properties on or before the Closing Date, shall have been paid by the applicable Seller on or before the Closing Date, subject to proration as follows: Buyer shall be assigned responsible for the payment to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in each applicable Seller of the amount of 6% Impositions that relate to the period on and after the Closing Date (and the Sellers shall be responsible for the payment of prorated rents credited such Impositions relating to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously Date). To the extent that Impositions for CLP Managed Properties for the current year have accrued but are not yet due and payable, such amounts shall be paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on Buyer following the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser Buyer shall receive a credit against the Purchase Price for Seller's portion the amount thereof that is attributable to the period prior to Closing, such pro ration to be based on the most recent available information, as adjusted by any known changes relating to the period during which the Closing occurs, and shall be subject to true-up pursuant to Section 6.5(l). Sellers and Buyer acknowledge that with respect to each CLP Leased Property, the Tenant under the Lease for such CLP Leased Property is responsible to pay all Impositions with respect to such CLP Leased Property, and therefore shall not be subject to proration under this Section 6.5.
(b) All charges for gas, electricity, water, telephone, sewer and other utilities for the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser CLP Managed Properties shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable dataavailable information, as reasonably adjusted to account for known variances from usage that would not otherwise be reflected in such information. The Purchaser Sellers shall assume Seller's obligations under receive a credit for, and shall assign to Buyer, all deposits made by Sellers at the Seller's existing real estate tax consulting agreements CLP Managed Properties for any utility services; Sellers shall request that the companies and municipalities furnishing utility services to the CLP Managed Properties make termination readings on the morning of the Closing Date, or on a date as soon thereafter as practicable, and submit final statements for utility services, which shall be reconciled pursuant to the Statement of Adjustments. Sellers and Buyer acknowledge that with respect to each CLP Leased Property, the Properties, i.e., those agreements which Seller has entered into with firms who are entitled Tenant under the Lease for such CLP Leased Property is responsible to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable pay all such utility charges with respect to such CLP Leased Property, and therefore shall not be subject to proration under this Section 6.5.
(c) With respect to the CLP Managed Properties. The , all membership dues for the month in which the Closing occurs or for any subsequent period after Closing, all items of expense under Approved Contracts, and all membership fees, charges, handicap fees, driving range fees, golf club storage fees, locker fees, trail fees and other income items that have accrued to the accounts of members or commissions payable to said consultants (if any) shall be treated as a portion customers of the real estate tax liability to be pro-rated CLP Managed Properties but that have not been invoiced as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements , shall be prorated as of the Closing Date so that Date.
(d) All prepaid membership dues, fees or charges, handicap fees, driving range fees, golf club storage fees, locker fees, trail fees and other charges collected by Seller shall be responsible for any costs associated therewith prior to or the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing Manager with respect to such prorations; provided, however, that such prorations the CLP Managed Properties shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent prorated as of the Closing Date.
13.3. To (e) Buyer shall receive a credit in the extent it is reasonably possible amount of all deposits received by Sellers or Manager for the Seller Bookings to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in take place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on after the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, CLP Managed Properties (and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Sellerassume all liability arising after Closing with respect thereto).
(bf) The Seller stipulates that there is full Buyer shall receive a credit for all gift certificates, rain checks, or other instruments redeemable for goods or services at the CLP Managed Properties and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs sold or issued on or after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
is twelve (d12) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent months prior to the Closing Date, then Purchaser to the extent they have neither been redeemed nor expired as of the Closing Date.
(g) Buyer shall receive a credit for any cash security deposit held by Sellers pursuant to any of the Leases, to the extent such security deposit or any portion thereof has not been retained by Sellers prior to the Closing Date pursuant to the terms of the applicable Lease, and Buyer shall thereafter be responsible for the return of such deposit in accordance with the applicable lease; Seller shall receive a credit for any cash security deposit held by Ground Lessors pursuant to any of the Ground Leases, to the extent such security deposit or any portion thereof has not been retained by the Ground Lessors prior to the Closing Date pursuant to the terms of the applicable Ground Lease.
(h) All other items of income or expense with respect to the CLP Managed Properties shall be prorated as of the Closing Date, with all such items of income and expense that relate to the Closing Date and the period after the Closing Date being credited and/or charged, as applicable, to the Buyer’s account. Without limiting the generality of the preceding sentence, (i) income received by Sellers and accounts receivable that represent ▇▇▇▇▇▇▇▇ for goods and services to be rendered on or after the Closing Date shall be for the account of Buyers, (ii) pre-paid expenses which relate to goods or services to be provided to the CLP Managed Properties in the ordinary course of business on or after the Closing Date shall be borne by Buyers, and (iii) refunds, to the extent relating to the period prior to the Closing, shall be for the account of the applicable Seller.
(i) Buyer and Seller acknowledge and agree that the balance of all tax and insurance escrow accounts described in the Leases and Management Agreements and held by Seller (the “Escrow Accounts”) and the balance of all Prepaid Annual Membership Dues (as defined in the Leases and/or Management Agreements) held by Seller shall be transferred and assigned by Seller to Buyer at the Closing (or alternatively, Buyer shall receive a credit to/reduction of the Purchase Price in the amount of such Escrow Accounts and Prepaid Annual Membership Dues) and Buyer shall thereafter be responsible to pay for same subsequent in accordance with the applicable Lease or Management Agreement.
(j) Buyer and Seller acknowledge and agree that the balance of all cap ex reserve accounts at the Properties (the “Reserves”) are set forth on Schedule 10.1(v)(A) as of the date of such report. Buyer shall receive a credit against the Purchase Price in the amount of the balance of such Reserves in place on the day prior to the Closing Date (but no such payment shall accrue which amount includes an uncommitted contingency component which is being credited against the Seller’s obligation to credit Buyer an amount equal to the benefit Arrowhead Tap Fee pursuant to Section 5.2(c)), and Buyer shall thereafter be responsible for same in accordance with the applicable Lease or Management Agreement, including the obligation to establish new reserve accounts as may be required. Seller shall retain ownership of the Seller Reserve accounts which are not included in the Property. Prior to Closing, deposits into and withdrawals from the Reserves shall be made in the ordinary course of business in accordance with the terms of the applicable Lease or constitute a credit against a debt otherwise owed by the Seller to said third party)Management Agreement.
(ek) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Lifestyle Properties Inc)
Prorations. 13.1. Rents (exclusive of delinquent a) Rents, including, without limitation, percentage rents, but including prepaid rentsif any, and any additional charges and expenses payable under tenant leases, all as and when actually collected (whether such collection occurs prior to, on or after the Closing Date); prepaid associations duesreal property taxes and assessments; water, refundable security deposits sewer and utility charges; amounts payable under any service contracts; annual permits and/or inspection fees (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closingcalculated on the basis of the period covered); fuels; prepaid operating expenses; management fees and any other expenses of the operation and maintenance of the Property (including, without limitation, those expenses listed on SCHEDULE 5 attached hereto already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of 6% the unamortized portion thereof), together with tenant improvement costs, leasing commissions, as provided in Section 7.2 above, shall all be prorated as of prorated rents credited 12:01 a.m. on the date the Deed is recorded, on the basis of a 365-day year. Any sums collected by Buyer from tenants after the Closing shall be promptly paid to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior Seller to the extent of any rents and other sums which were delinquent at Closing, after first applying all such amounts collected to current obligations. Buyer shall use reasonable efforts to collect such delinquent rents but shall not be obligated to expend any sums, commence any litigation, terminate any lease or threaten to terminate any lease to do so. Seller retains the rights to collect any such delinquent rents from tenants after Closing Date less provided that Seller shall not commence any legal or equitable proceedings in the nature of an unlawful detainer, eviction or other proceeding which would have the effect of interfering with any tenant's quiet enjoyment of its leased premises or result in a lien or encumbrance on such leased premises. The amount previously paid by the tenants of any security deposits under tenant leases shall be credited against the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to Seller; the Property, in which case all such deposits for which Seller receives credit shall remain in place for the benefit of Buyer and other similar items Seller shall execute and deliver such documents as shall be adjusted ratably as necessary to assign such deposits to Buyer. Buyer shall cause all utilities to be transferred into Buyer's name and account at the time of 11:59 p.m. Closing. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, and credited to then the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas same shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill calculated as soon as reasonably practicable after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall be paid by Purchaserpromptly pay said sum to the other party. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof Seller and Buyer shall be jointly prepare and approve a preliminary Closing Statement on the basis of the most recent ascertainable data. The Purchaser leases and other sources of income and expenses, and shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect deliver such computation to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith Title Company prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and parties shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.closing costs below as follows:
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Pacific Gulf Properties Inc)
Prorations. 13.112.1. Rents (exclusive of delinquent rentsrents [i.e. unpaid on the Closing Date], but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the date prior to the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against for the Purchase Price for Seller's portion and shall pay compensation payable to its manager on the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at ClosingDate. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Propertiesdelinquent rent referred to in Paragraph 12.2 below, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction except as provided in the real estate taxes otherwise payable with respect to the Propertieslast sentence of this section. The fees or commissions payable parties agree to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to make such post-closing adjustments and readjustments as necessary may be required due to reflect later relevant information not available at errors and omissions in the Closing and prorations or due to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time obtaining actual amounts for items which were prorated based on the day which is estimates within thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of after the preceding sentence shall survive the ClosingClosing Date.
13.212.2. Rents which are delinquent as of All rent paid following the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion by any tenant of the Real Property who is indebted under a lease for basic rent for any period prior to and including the date Closing Date after the payment to Purchaser of Closingall current rent and any past due rent owed to Purchaser shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, free from any claim thereon by the Purchaser shall pay such Post-Closing Receipt to Seller. Seller may Purchaser shall use whatever lawful means are available to Seller its best efforts to collect any delinquencies up all amounts which, upon collection, would constitute Post-Closing Receipts hereunder but shall have no obligation to and until the day bring legal action. If Purchaser expends funds to collect rent due prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinbe reimbursed its collection expenses from any delinquent rent collected. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone number. upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller may also place a listing and/or advertisement in such publication, said additional Post-Closing Receipts and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 12 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Pension Investors Ii)
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing DateDate (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxes and assessments normally billed and collected in the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (b) below), operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed), and Pre-Closing Taxes (other than those described above) for the current Tax period or that are not yet delinquent. Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ClosingClosing Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Closing Time. If the utility company will Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities be unreasonably withheld) two (so long as no more than thirty (302) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Time, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable databest evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect No prorations will be made in relation to insurance premiums (except to the Propertiesextent covered by the proration of Operating Expense Recoveries), i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and Seller’s and the extent Owners’ insurance policies will not be assigned to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the PropertiesPurchaser. The fees or commissions payable to said consultants (Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if any) shall be treated as a portion of the real estate tax liability to be pro-rated possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedutility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, however, that such prorations and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be deemed final made by Purchaser and not subject to further post-closing adjustments at 5:00 PM Chicago time Seller on or before the day which is thirty date six (306) days following Closingmonths after the Closing Date (herein, at which time all prorations shall be deemed final and not subject to further post-closing adjustmentthe “Final Proration Date”). The provisions of the preceding sentence shall this Section 10.4 (excluding subsections (e) and (g) which are governed by Section 3.2), will survive the ClosingClosing until Final Proration Date, and in the event any items subject to proration hereunder are discovered prior to Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4.
13.2. Rents which are delinquent (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing Date shall Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include such Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to the landlord under the Tenant Lease or from other occupants or users of the Property, excluding specific tenant ▇▇▇▇▇▇▇▇ which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to For a tenant's occupancy period of a portion of the Real Property for any period prior to the date of six (6) months after Closing, free from any claim thereon by the Seller. Seller may Purchaser agrees to use whatever lawful means are available good faith collection procedures with respect to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for Delinquent Rentals, but Purchaser will not be required to expend any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain funds or incur any portion of any security deposit held by Seller (if any) monetary obligations with respect to such efforts, and shall have no liability for the failure to collect any Lease which such amounts and will remain effective subsequent not be required to Closing, even though the tenant is delinquent in paying rent as conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Closing Date.
13.3Property. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with pursue Delinquent Rentals after Closing. With respect to each Property without additional compensation to any Delinquent Rentals received by Purchaser within one (1) year after Closing (the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date“Delinquent Rental Proration Period”), Purchaser shall have pay to Seller any rent or payment actually collected during the right Delinquent Rental Proration Period properly attributable to place a listing and/or advertisement the period prior to the Closing Time. All sums collected by Purchaser during the Delinquent Rental Proration Period, from such Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, all of which shall be payable to and belong to Seller in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list Tenant to Purchaser (including Delinquent Rentals attributable to the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in period after the Closing Time), then any collection costs of Purchaser related to such publicationTenant, and in the event that Seller decides then to place such a listing and/or advertisement, prior delinquencies owed by Tenant to Seller. Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable institute legal actions to the period pursue Delinquent Rental after Closing.
(d) In the , but in no event shall Seller be permitted to institute eviction proceedings against any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use Tenant or to recover levy against or seize any damages authorized personal property of any Tenant located on or in the Real Property or to garnish or attach any rentals due under any Tenant Lease. Any sums collected by such lawsPurchaser and due Seller will be promptly remitted to Seller, and any sums collected by Seller and due Purchaser will be promptly remitted to Purchaser.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Prorations. 13.1It is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to operate the Property from and after Closing and, pursuant to said Property Lease, shall be entitled to all revenues generated from, and shall be obligated to pay all taxes and expenses (including all rental due under the Ground Lease) relating to, the Property from and after Closing and during the entire term of the Property Lease (subject, however, to 34 39 payment of the various rentals otherwise described in said Property Lease). Rents (exclusive As a result of delinquent rentsthe foregoing, but including prepaid rents); prepaid associations duesthere shall be no proration, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount Closing of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityany revenue, if anytax or expense items hereunder. However, for such items); operating expenses which are reimbursable by purposes of determining "Additional Rent" due and owing under the tenants Property Lease for the period prior to year in which the Closing Date less any amount previously paid (i.e., the "Commencement Date" under the Property Lease) occurs, the parties agree as follows:
(a) All revenue received by the tenants shall be credited Seller that relates to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on time periods after the Closing Date, including, but not limited to, deposits, advance registration and credited other fees previously received by Seller, rents, membership dues, initiation fees, prepaid greens fees, coupon book receipts, gift certificates, discount certificates, locker rentals, tournament fees, tradeouts, function deposits, and bag storage charges, shall be deemed "Golf Course Revenue" or "Other Revenue" (as the case may be) under the Property Lease, attributable to periods following the Commencement Date of the Property Lease term on an accrual basis in accordance with generally accepted accounting principles.
(b) All of Seller's receivables, unreceived revenue and deferred income relating to the balance operation of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith Property prior to the Closing Date and Purchaser not otherwise provided for in this Section 10.2 or elsewhere in this Agreement, shall remain the property of Seller ("SELLER'S RECEIVABLES") and shall not be responsible for deemed "Golf Course Revenue" or "Other Revenue" under the Property Lease attributable to any costs associated therewith arising from and after period falling within the term of the Property Lease. It is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to attempt to collect Seller's Receivables following the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedRegardless of payee designation, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days all payments received following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date by the Lessee, as lessee under the Property Lease, from any club member who has an outstanding Seller's Receivables shall not be prorated. Instead, presumed to be payments in respect to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisementsdue charges, and telephone numbers, at each of the Properties pursuant thereafter to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the outstanding Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and Receivables in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion inverse order of the cost of such listing and/or advertisement attributable to the period after Closingmaturity.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1The Purchase Price for the Property shall be subject to prorations and credits as follows to be determined as of 12:01 A.M. on the Closing Date, the Closing Date being a day of income and expense to Purchaser:
1. Rents (exclusive payable under Tenant Leases. Purchaser shall receive a credit at Closing for all rents collected by Seller prior to the Closing and allocable to the period after Closing. No credit shall be given the Seller for accrued and unpaid Rent or any other non-current sums due from tenants unless and until said sums are paid. Any portion of delinquent rentsany rents collected subsequent to the Closing Date and properly allocable to periods prior to the Closing Date shall be paid, promptly after receipt, to the Seller, but including prepaid rents)subject to all of the provisions of this Section hereof; prepaid associations dues, refundable security deposits (which will be assigned and any portion thereof properly allocable to and assumed by Purchaser and credited periods subsequent to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityClosing Date, if any, shall be paid to Purchaser. Seller shall be solely responsible for collecting any rent under the Tenant Leases which is past due as of the Closing; provided, however, Purchaser shall be responsible for collecting any rent due for the month in which the Closing occurs and shall pay to Seller the portion of such items); operating expenses rents if, as and when collected which are reimbursable has accrued prior to Closing. Any security deposits held by Seller at Closing shall be credited to Purchaser on the Closing Date.
2. Seller shall be entitled to collect from tenants the monthly adjustment rent or escalation payments payable under the Tenant Leases for the period prior to Closing for taxes and operating expenses for the Project, and Purchaser shall retain all such monthly rent or payments for the period after Closing. As soon as all such taxes and operating expenses for the Project are finally determined for the year in which the Closing occurs, Purchaser shall be responsible for adjusting with the tenants the adjustment rent or escalation payments paid under the Tenant Leases for such year. Seller shall pay to Purchaser Seller's share of any such adjustment payments owed to tenants under the Tenant Leases, and Purchaser shall remit to Seller Seller's share of any such adjustment payments paid by tenants; and Seller shall indemnify and hold Purchaser harmless in connection with all claims for Seller's share of the adjustments owed to tenants, which indemnity shall survive the Closing. Seller's share of any adjustments shall be determined based on the portion of operating expenses and real estate taxes for the year incurred by Seller (after taking into account any prorations pursuant to this Section D).
3. Purchaser shall receive a credit for any accrued but unpaid real estate taxes imposed in respect of the Project for the portion of the current year which has elapsed prior to the Closing Date less (and to the extent unpaid, for prior years). If the amount of any amount previously paid by the tenants such taxes have been determined as of Closing, such credit shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable datataxes and shall be reprorated upon issuance of the final tax bill. Seller shall also give Purchaser a credit for any special assess▇▇▇▇s against the Project which are due and payable prior to Closing.
4. Utilities and fuel, including, without limitation, steam, water, electricity, gas and oil. The Seller shall cause the meters, if any, for utilities to be read the day on which the Closing Date occurs and to pay at Closing the bills rendered on the basis of such readings. If any such reading for any utility is not available, then adjustment therefor for shall be made on the period to and including basis of the Closing, and the Purchaser shall pay the utility most recently issued bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as which are based on meter readings no more earlier than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller ; and such adjustment shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rentsbe reprorated when the next utility bills are received.
5. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises Charges payable under the pertinent Lease before the Closing Date and said Lease is not Service Contracts assigned to Purchaser pursuant to this Agreement.
6. Any vault fees or similar payments for the PurchaserProject. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller At least five (if any5) with respect to any Lease which will remain effective subsequent days prior to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) deliver to Purchaser at Closing a temporary license copies of all information and right records necessary to use support the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified aboveprorations hereunder. In the event that the publication close date any prorations made pursuant hereto shall prove incorrect for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Datereason whatsoever, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller either party shall be entitled to a pro-rata credit for such portion of an adjustment to correct the cost of such listing and/or advertisement attributable to the period same, provided no adjustments shall be requested more than one (1) year after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Beacon Properties Corp)
Prorations. 13.1. Rents (exclusive of delinquent The Title Company shall prorate all rents, but including prepaid rentsnon-delinquent real property taxes, water, sewer, and utility charges, amounts payable under the Service Contracts, annual permits and/or inspection fees (calculated on the basis of the period covered); prepaid associations dues, refundable security deposits insurance premiums (which will be assigned as to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilitythose policies, if any, that Buyer determines will be continued after the Closing), and other expenses normal to the operation and maintenance of the Property on the basis of a 365-day year as of 12:01 a.m. on the date the grant deed is recorded. Seller shall endeavor to have all meters for such items); operating expenses which are reimbursable by serving utilities, including, but not limited to, water, sewer, gas, and electricity read on the tenants for the period prior to day before the Closing Date less any amount previously paid by for proration purposes. Seller shall transfer to Buyer at the tenants shall be credited to Seller; Closing all security deposits and other sums held for tenants and shall supply Buyer with an updated list of all tenants, security deposit amounts and the originals of all tenant leases together with the tenant files. At Closing, Seller shall transfer possession of the Property so that Buyer or its assignee may immediately continue with ongoing leasing operations and Seller shall cooperate with Buyer in providing all information that pertains to: delinquent rents, late fees, evictions, damages to retail units, and all similar items shall matters. Seller and Buyer hereby agree that if any of the aforesaid prorations cannot be adjusted ratably as of 11:59 p.m. calculated accurately on the Closing Date, and credited to then the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas same shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than calculated within thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to after the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after either party owing the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated other party a sum of money based on the Closing Datesuch subsequent proration(s) shall be subject promptly pay said sum to post-closing adjustments as necessary to reflect later relevant information not available the other party, together with interest thereon at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty rate of ten percent (3010%) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of per annum from the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease payment if payment is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller made within ten (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify after delivery of a Property as formerly owned by the Sellerbill therefore.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Montgomery Realty Group Inc)
Prorations. 13.1. Rents Except as may be otherwise expressly provided herein, all revenues, income and expenses (exclusive including utility expenses and credit card adjustments) of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned the Property with respect to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to 12:01 a.m. on the Closing Date less any amount previously paid by the tenants (but only including 50% of that night’s room revenues) shall be credited to for the account of Seller; and other similar items shall be adjusted ratably as 50% of 11:59 p.m. on the Closing Datethat night’s room revenues plus all revenues, income and credited to the balance expenses of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements Property with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled period after 12:01 a.m. on the Closing Date (including all deposits or advances related to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees advance bookings or commissions payable to said consultants (if any) shall be treated as a portion reservations exclusive of the real estate tax liability to be pro-rated as of interest earned thereon through the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible ) for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising periods from and after the Closing Date) shall be for the account of Buyer. All prorations described in this Agreement Seller shall deliver to Buyer the cash on hand at the Hotel on the Closing Date (except prorations for that cash which constitutes Seller’s 50% share of the room revenues). Only real property taxes and assessments and personal property taxes which will be prorated inside of Escrow on the settlement statement; all other prorations shall be deemed final made outside of Escrow, in accordance with local custom in Highlands Ranch County, Colorado, as prorated reflected in a separately executed proration statement, shall be allocated, reconciled and paid by check or wire transfer directly between the parties as soon as practicable on or after the Closing Date and may include, but not be limited to, income items such as revenues (prepaid or otherwise) from room, beverage, telephone and other similar charges, and expense (prepaid or otherwise) items such as utilities and amounts under Operating Agreements. If real property taxes and assessments to be assumed by Buyer are unavailable on the Closing Date) , a re-adjustment of such taxes and assessments assumed by Buyer shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is within thirty (30) days following after the Closing or if longer, as soon as such taxes and assessments and charges or expenses assumed by Buyer are available. Should the sale occur after June 30th, and the property be re-assessed due to the sale contemplated herein for the tax year in which Closing occurs, a re-adjustment shall occur, and the figures from the re-assessment shall form the basis for the pro-ration amount. Notwithstanding the immediately preceding sentence, if a re-assessment occurs for future tax periods (i.e., for any period from and after Closing), no re-adjustment shall occur. The parties agree to cooperate in good faith in effecting such a final reconciliation and each party shall promptly pay (or reimburse the other party for) any expense item that is chargeable to the former party and shall promptly remit any income item to the other party if entitled thereto. In the event any adjustments pursuant to this Section 5.3 are, subsequent to Closing, at which time all prorations found to be erroneous, then either party hereto is entitled to additional monies and shall invoice the other party for such additional amounts as may be owing, and such amount shall be deemed final and not subject to further post-closing adjustmentpaid promptly by the other party upon receipt of the invoice. Such invoice shall be accompanied by reasonable substantiating evidence. The provisions of the preceding sentence this Section 5.3 shall survive the Closing.
13.2. Rents which are delinquent as delivery of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing DateDeed.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Apple REIT Seven, Inc.)
Prorations. 13.112.1. Rents (exclusive of delinquent rentsrents except as set forth below, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. Seller shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect receive a credit at Closing for an amount equal to the Properties, i.e., those agreements 50% of all Rents which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Datedelinquent for not more than 30 days at Closing. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that the Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To Paragraph 12.2 of this Agreement shall survive the extent it is reasonably possible for Closing and the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license delivery and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each recording of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Sellerdeed.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rentsExcept as otherwise provided herein, but including prepaid rents); prepaid associations duesrent, refundable security deposits (which will be assigned to receivables, other amounts due KEM, and assumed all amounts payable by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal KEM such as property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilitytaxes, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; accounts payable and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Date. Seller and/or KEM, as applicable, shall pay or cause to be paid such amounts or an appropriate adjustment shall be responsible for any costs associated therewith prior made in the cash received by Seller at Closing or Seller and/or KEM shall cause sufficient working capital to remain in the accounts of KEM to pay such items when due. Any monies held in bank accounts of the KEM as of the Closing Date and Purchaser shall in excess of the amounts needed to satisfy Seller’s or KEM’s obligations under the preceding sentence, will be responsible for any costs associated therewith arising from and after distributed by KEM to Seller through Escrow on the Closing Date. All prorations described in Prorations and adjustments contemplated under this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) Section 21.2 shall be subject to post-closing Closing adjustments as necessary to reflect later relevant material information not available at Closing (including any material liabilities which were to be prorated hereunder discovered after Closing but relating to the period prior to or including the Closing and any material adjustments required pursuant to Section 21.4(f), below) and to correct any material errors made at the Closing with respect to such prorations; providedapportionments, howeverand the Party receiving more than it was entitled to hereunder (the “Reimbursing Party”) shall reimburse the other Party (the “Reimbursed Party”) in the amount of such over payment within thirty (30) days after receiving written demand thereof from the Reimbursed Party. Such written demand by the Reimbursed Party shall be accompanied by reasonable proof of the Reimbursed Party’s right to payment. Both the Reimbursed Party and Reimbursing Party agree to cooperate in good faith to resolve any disputes regarding such adjustments. Notwithstanding the foregoing, that such prorations apportionments shall be deemed final and not subject to further post-closing Closing adjustment if no adjustments have been requested within six months (6) months after the Closing Date. Buyer and Seller further agree that (a) all rent prepaid by the County of Riverside under that certain Communications Tower Site Lease Agreement shall be transferred by KEM to Seller prior to Closing and will be retained by Seller, (b) the Settlement Agreement among KEM, Edison Construction, Inc. and ▇▇▇▇▇▇▇▇ Corporation, dated January 15, 2015, and the rights thereunder are expressly excluded from the KEM Assets and shall be assigned and transferred to Seller or EMMR at 5:00 PM Chicago time on Closing pursuant to the day which is thirty Assignment of Contracts, and (30c) days following Closingall rent paid to KEM by FPN under the FPN Lease shall be retained by KEM at Closing without proration and not distributed to Seller. For the purposes of Sections 21.2 and 2.4, at which time all prorations any information, adjustment, error or liability resulting in an expenditure or change of more than five thousand dollars ($5,000), individually or in the aggregate, shall be deemed final “material”. Furthermore, the Burn Pit Holdback and not subject Transformer Holdback shall be retained in Escrow at Closing and distributed pursuant to further post-closing adjustmentthe terms of Section 21.11 below. The provisions of the preceding sentence this Section 21.2 shall expressly survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to for a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek eighteen (by legal action or otherwise18) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Datemonths.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser%; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled delinquent rent referred to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 12.2 below.
12.2. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of basic rent paid following the Closing Date so that Seller shall be responsible for by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser Property who is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent indebted under a lease for basic rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date and said Lease shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is not assigned to the Purchaserpaid in full. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller Within ten (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall not use the existing logos or trade name on stationeryits best efforts to collect all amounts which, business cardsupon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone number. upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller may also place a listing and/or advertisement in such publication, said additional Post-Closing Receipts and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 12.2 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.116.1. Rents (including rent under the Ground Lease) (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); interest, costs and fees accruing under the Loan Documents; water and other utility charges; fuels; prepaid operating expenses; management fees as provided in the amount of 6% of prorated rents credited to Purchasermanagement agreement with Insignia; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenantsTenants' liabilityliabilities, if any, for such items); operating expenses paid by Seller which are reimbursable by the tenants Tenants for the period prior to the Closing Date, less any amount previously paid by the Tenants shall be credited to Seller; unpaid operating expenses for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellerprorated on a "net" basis, as set forth above; and all other similar items of expense and income shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on January 1, 1996 (the Closing "Proration Date"), and credited to the balance of the cash due at Closing. UtilitiesAssessments, including waterexcluding regular ad valorem real estate taxes, sewer, electric, and gas payable in installments which are due prior to the Closing Date shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under data and if the Seller's existing 1995 real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller contest has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated not been finalized as of the Closing Date, Purchaser and Seller agree that the 1995 tax bill prior to the contest (adjus▇▇▇, if necessary, to reflect 100% of the assessed value and taxes rather than 85%), shall be the most recent data for 1996 and (i) Purchaser agrees to re-prorate such amount as it relates to the 1996 proration to the extent the 1995 tax contest is successful and (ii) Seller agrees to re-prorate such amount as it relates to the 1996 proration to the extent the 1995 tax contest is unsuccessful. Seller will receive a credit for any balances in escrow accounts established pursuant to the Loan Documents and acknowledged in writing by Lender. All costs associated with telephone directory listings prorations will be final except as to delinquent rent referred to in Paragraph 16.2 below and any other prepaid advertisements as provided in Paragraphs 16.3, 16.4 and 16.5. Notwithstanding the terms and provisions of Paragraph 16.2 below, Purchaser acknowledges that the Government pays rent under the U. S. Government Lease for Real Property No. GS-04B-15730 dated August 5, 1977, as amended (the "G.S.A. Lease"), in arrears. Upon receipt by Purchaser, Purchaser shall be prorated pay over to Seller Seller's pro rata share of the rent paid by the Government for the month in which the Closing occurs. Notwithstanding anything contained herein to the contrary, Purchaser's obligation to pay such funds to Seller as set forth more fully in this Paragraph 16.1 shall survive the Closing and the recording of the Deed.
16.2. Except as set forth in the second to the last sentence of Section 16.1 above, all basic rent paid following the Closing Date so that Seller shall be responsible by any tenant of the Property who is indebted under a Lease for basic rent for any costs associated therewith period prior to the Closing Proration Date and in an amount greater than the amount of all current basic rent owed by said Tenant to Purchaser shall be responsible for any costs associated therewith arising from and deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 180 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 150 days after the Closing Date. All prorations described Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Paragraph 16.2 of this Agreement shall survive the Closing and the delivery and recording of the deed.
16.3. Notwithstanding anything contained in this Agreement (except prorations to the contrary, Purchaser acknowledges and agrees that Seller is retaining the following rights, none of which are being conveyed, assigned or transferred to Purchaser pursuant to this Agreement or any documents executed by Seller in connection herewith. All of the items set forth in this Section 16.3 shall survive the Closing and the recording of the Deed.
16.3.1. Seller has advised Purchaser that Seller has protested the real estate taxes for the Property for calendar years 1991, 1992, 1993, 1994 and 1995. All refunds in connection with such tax protests remain the property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the event any such refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees, at no cost or expense to Purchaser, to execute any documents reasonably requested by Seller, in connection with such tax protests.
16.3.2. Seller has advised Purchaser that Seller has applied to the U.S. Olympic Committee to receive tickets to the 1996 Olympics to be held in Atlanta, Georgia and that the application for the tickets was made in the name of the Property. The tickets assigned to the Property are set forth on Exhibit V attached hereto and made a part hereof. All tickets shall remain the property of Seller and are not being assigned, transferred or conveyed to Purchaser. If any such tickets are delivered to Purchaser, Purchaser agrees to promptly deliver such tickets to Seller. Purchaser agrees, at no cost or expense to Purchaser, to execute any documents reasonably requested by Seller, in connection with the foregoing tickets.
16.4. Seller hereby agrees to pay and discharge the lien of all charges for real estate taxes for 1995 and personal property taxes which prior years of Seller's ownership of the Fee Property. The provisions of the foregoing sentence shall be deemed final as prorated survive the Closing and delivery and recording of the Deed. Notwithstanding anything contained herein to the contrary, on the Closing Date) , Seller shall establish an escrow (the "Real Estate Tax Escrow"), pursuant to which Seller shall deposit the following sums into escrow to be held by Escrowee and to be governed by the terms of an escrow agreement, the form of which shall be subject agreed upon by Seller and Purchaser prior to post-closing adjustments as the expiration of the Inspection Period:
(a) that portion of the refunds actually received for real estate taxes due from the City of Atlanta and Fulton County, Georgia on accoun▇ ▇▇ ▇he tax appeals filed for the calendar years 1991, 1992 and 1993 necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing reconcile real estate taxes paid by Tenants, but only with respect to those Tenants entitled to refunds under their respective Leases and also deducting therefrom Seller's estimated third party costs and expenses incurred or to be incurred in connection with the tax appeal filed for such prorationscalendar years (the "1991-93 Amount"); provided, however, that Seller shall promptly deposit into the Real Estate Tax Escrow any refund received subsequent to the Closing Date on account of the refunds for real estate taxes for the calendar years 1991 and 1992 to the Real Estate Tax Escrow less estimated third party costs and expenses incurred or to be incurred in connection with the tax appeal for such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustmentcalendar year. The provisions of the preceding foregoing sentence shall survive the ClosingClosing and recording of the Deed; plus
(b) the greater of: (i) the difference between the amount of 1994 and 1995 real estate taxes which would have been due on the Property, as previously assessed if no tax appeal had been filed for each such calendar year and the actual amount of real estate taxes paid for the calendar years 1994 and 1995; and (ii) the amount necessary to reconcile real estate taxes paid by Tenants for calendar years 1994 and 1995, but only with respect to those Tenants entitled to refunds under their respective Leases and also deducting therefrom Seller's estimated third party costs and expenses incurred or to be incurred in connection with the tax appeal filed for such calendar years (the "1994-95 Amount").
13.216.4.1. Rents which are delinquent The 1991-93 Amount shall be disbursed:
(a) Directly to Tenants under existing Leases as of indicated on the Closing Date shall not be prorated. InsteadRent Roll attached hereto as Exhibit T upon the reconciliation date set forth for such Tenant under its Lease, to the extent that Purchaser such Tenant is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion its pro rata share of the Real Property for any period prior 1991-93 Amount, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available ;
(b) Directly to Seller to collect any delinquencies up to and until the day Tenants under Leases which terminated prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermoreextent such Tenant is entitled to its pro rata share of the 1991-93 Amount under its Lease, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller; Purchaser shall request its property manager to locate such Tenants and pay such amounts, if such Tenants exist, or Purchaser shall pay such amounts upon demand of such Tenant in accordance with the preceding sentence; and
(c) Any remaining balance of the 1991-93 Amount, together with respect all interest earned thereon, shall be refunded to any Lease which will remain effective subsequent to Closing, even though Seller on the tenant is delinquent in paying rent as first (1st) anniversary of the Closing Date.
13.316.4.2. To the extent it is reasonably possible for the Seller to do so, the Seller The 1994-95 Amount shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditionsbe disbursed as follows:
(a) The temporary license granted by this paragraph If Seller's tax appeal for the calendar year 1994 is successful, that portion of the 1994-95 Amount attributable to the calendar year 1994 shall commence be disbursed:
(i) Directly to Tenants under existing Leases as indicated on the Closing Date and shall expire on Rent Roll attached hereto as Exhibit T upon the day which is one hundred eighty (180) days subsequent reconciliation date set forth for such Tenant under its Lease, to the date when extent such Tenant is entitled to its pro rata share of the public telephone directory pertaining 1994-95 Amount, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to each Property is published subsequent Seller;
(ii) Directly to Tenants under Leases which terminated prior to the Closing Date. During , to the extent such periodTenant is entitled to its pro rata share of the 1994-95 Amount under its Lease, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller; Purchaser shall have the right request its property manager to use the existing logoslocate such Tenants and pay such amounts if such Tenants exist, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. or Purchaser shall not use pay such amounts upon demand of such Tenant in accordance with the existing logos or trade name preceding sentence; and
(iii) Any remaining balance of that portion of the 1994-95 Amount attributable to 1994, together with all interest earned thereon, shall be refunded to Seller on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding first (1st) anniversary of the Properties except to identify a Property as formerly owned by final determination of the Seller1994 tax contest.
(b) The Seller stipulates that there is full and adequate consideration If Seller's tax appeal for the license herein grantedcalendar year 1994 is not successful, that portion of the 1994-95 Amount attributable to 1994 shall be applied to pay the amount of 1994 real estate taxes actually assessed by the City of Atlanta and Fulton County, Georgia, respecti▇▇▇▇, and any remaining balance attributable to 1994 shall be promptly disbursed to Seller.
(c) If Seller's tax appeal for the calendar year 1995 is successful, that portion of the 1994-95 Amount attributable to 1995 shall be disbursed:
(i) Directly to Tenants under existing Leases as indicated on the Rent Roll attached hereto as Exhibit T upon the reconciliation date set forth for such Tenant under its Lease, to the extent such Tenant is entitled to its pro rata share of the 1994-95 Amount, if any, as evidenced by a reconciliation prepared by Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in reasonably acceptable to Seller;
(ii) Directly to Tenants under Leases which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before terminated prior to the Closing Date, to the extent such Tenant is entitled to its pro rata share of the 1994-95 Amount under its Lease, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller; Purchaser shall have request its property manager to locate such Tenants and pay such amounts, if such Tenants exist, or Purchaser shall pay such amounts upon demand of such Tenant in accordance with the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event preceding sentence; and
(iii) Any remaining balance of that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement 1994-95 Amount attributable to 1995, together with all interest earned thereon, shall be refunded to Seller on the period after Closingfirst (1st) anniversary of the final determination of the 1995 tax contest.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge If Seller's tax appeal for the use calendar year 1995 is not successful, that portion of such listings or advertising subsequent the 1994-95 Amount attributable to the Closing Date, then Purchaser 1995 shall be responsible applied to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit amount of the Seller or constitute a credit against a debt otherwise owed 1995 real estate taxes actually assessed by the Seller City of Atlanta and Fulton County, Georgia, respecti▇▇▇▇, and any remaining balance attributable to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser 1995 shall be liable for and shall pay promptly disbursed to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysSeller.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations association dues, if any; refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled delinquent rent referred to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 12.2 below.
12.2. All costs associated with telephone directory listings rent paid on and any other prepaid advertisements shall be prorated as of following the Closing Date so that Seller shall be responsible for by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser Property who is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent indebted under a lease for rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date and said Lease is not assigned to after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current basic rent shall be deemed a "Post-Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, Receipt" until such time as all such indebtedness is paid in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
full. Within ten (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall not use the existing logos or trade name on stationeryits best efforts to collect all amounts which, business cardsupon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone number. upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller may also place a listing and/or advertisement in such publication, said additional Post-Closing Receipts and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 12.2 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 86 Series I)
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to 15.1 Water and assumed by Purchaser and credited to Purchaser at Closing)other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityliabilities, if any, for such items); operating expenses paid by Seller which are reimbursable by the tenants for the period prior to the Closing Date Date, less any amount previously paid by the tenants shall be credited tenants; unpaid operating expenses for the period prior to Sellerthe Closing Date prorated on a "net" basis, as set forth above; and all other similar items of expense and income shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the Closing Date ("Proration Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business"), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing entitled to a credit for any all transferable utility deposits which the Seller has deposited with any transferred hereunder, if any, and all other utility company and which will deposits, if any, may be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to withdrawn by
15.2 All basic rent paid following the Closing Date shall be paid by Purchaser. If the amount of any tenant of the items to be prorated Property who is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations indebted under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible Lease for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent basic rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date Proration Date in an amount greater than the amount of Closing, free from any claim thereon all current basic rent owed by the Seller. Seller may use whatever lawful means are available said tenant to Seller to collect any delinquencies up to and Purchaser shall be deemed a "Post-Closing Receipt" until the day prior earlier to occur of (i) one year after the Closing Date, provided that or (ii) such time as all such indebtedness is paid in full. Within ten (10) days following the end of each calendar month, Purchaser shall pay to Seller Post-Closing Receipts collected in the previous month. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 30 days after the one-year anniversary of the Closing Date, upon the written request of Seller, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first year after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not agree previously delivered to reduce rents for Seller in accordance with the terms hereof. Purchaser shall provide Seller with any period information reasonably necessary to verify the accuracy of time after the Post-Closing in order Receipts reconciliation statement and upon the verification of additional funds owing to induce any tenants Seller, Purchaser shall pay to pay delinquent rentsSeller said additional Post-Closing Receipts. Purchaser's obligations to attempt to collect Post- Closing Receipts shall expire one year from the Closing Date. Seller shall not have retain the right subsequent to Closing sue any tenant for rent owed to seek (by legal action or otherwise) the collection of any rents delinquent ▇▇▇ler for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before Proration Date. This Paragraph 15.2 of this Agreement shall survive the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as delivery and recording of the Closing DateDeed.
13.3. To the extent it is reasonably possible for the 15.3 Seller covenants to do sooperate, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license maintain and right to use the logos currently used by manage the Property which are in the property of an Affiliate same manner that it has managed, maintained and operated the Property during the period of Seller's ownership, in place advertising, telephone directory listings subject to reasonable wear and advertisements, tear and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Sellercasualty.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive a) The following shall all be prorated as of delinquent 12:01 a.m. on the date of Closing, on the basis of a 365-day year: (i) rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in all other income from the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityProperty, if any, for including, without limitation, any additional charges and expenses payable under the Leases, if any, all as and when actually collected (whether such items); operating expenses which are reimbursable by the tenants for the period collection occurs prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on to, on, or after the Closing Date); (ii) real property taxes and assessments for the year in which the Closing occurs, and credited to the balance of the cash due at Closing. Utilities, including (iii) water, sewersewer and utility charges, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid (iv) amounts payable under any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed service contracts Buyer assumes at Closing for any utility deposits the month in which the Seller has deposited with any utility company Closing occurs and which will be prior months, (v) annual permits (to the extent same are assigned to the Purchaser Buyer at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be ) and/or inspection fees (calculated on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect period covered), and (vi) any other expenses relating to the Propertiesoperation and maintenance of the Property. Buyer shall include all rent arrearages, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability , on Buyer's monthly invoices or ▇▇▇▇▇▇▇▇ to be pro-rated as of the Closing Date. All costs associated with telephone directory listings tenants and promptly deliver to Seller any other prepaid advertisements shall be prorated as of the Closing Date so such rent arrearages that Seller shall be responsible for any costs associated therewith relate to periods prior to the Closing Date if and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationswhen collected by Buyer; provided, however, that such prorations rents received from delinquent tenants after the Closing Date that are designated for periods after Closing shall be deemed final applied first against tenant's current rent due and then against any delinquent rents. The amount of any security or other deposits required to be returned to tenant's under the Leases by Seller, if any, shall be credited against the cash portion of the Purchase Price; accordingly, Seller shall retain the deposits and Buyer shall be responsible for handling such deposits in accordance with the Leases and applicable law. Seller shall retain all utility deposits, if any. Seller and Buyer hereby agree that if any of the aforesaid prorations cannot subject to further post-closing adjustments at 5:00 PM Chicago time be calculated accurately on the day which is Closing Date, then the same shall be calculated within thirty (30) days following Closingafter the Closing Date, at which time all prorations or as soon as sufficient information is available to permit the parties to accurately calculate such proration(s), and either party owing the other party a sum of money based on such subsequent proration(s) shall pay said sum to the other party within ten (10) days after such calculation is made; provided, however, that the tax proration referenced in Section (ii) herein shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to shall be responsible for payment in full of all real estate taxes and until the day assessments for years prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration shall pay the premium for the license herein grantedTitle Policy except for that portion to delete the so-called "survey exception.
(c) Purchaser " Buyer shall make arrangements pay all expenses associated with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in performance of Buyer's due course and within the license period specified diligence pursuant to Section 2.1 above. In Escrow fees and recording charges and any other expenses of the event that escrow for the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller sale shall be entitled to a pro-rata credit for such portion split equally between Buyer and Seller. Buyer shall pay the costs of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit execution and filing of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth Deed. All costs and charges described in this paragraph shall expire on be paid at Closing. Any bills received after the date(s) set forth above. If Purchaser continues Closing and not previously prorated in escrow shall be divided as provided herein, and shall be paid promptly upon receipt of a ▇▇▇▇ therefor, and any and all other costs and expenses relating to use the name currently being used purchase and sale transaction contemplated hereby shall be paid by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysparty incurring same.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Homes for America Holdings Inc)
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser, such as trash removal, heating, ventilation and air conditioning service and maintenance contracts; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to or debited against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data, other than real estate taxes, which shall be prorated on the basis of 105% of the aggregate 1995 real estate taxes. The Additionally, Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect receive a credit of $35,000.00 as "rent concessions" at Closing. All prorations will be final except as to the Propertiesdelinquent rent referred to in Paragraph 12.2 below.
12.2. If, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and , any other prepaid advertisements shall be prorated as of rent is in arrears for the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to calendar month when the Closing Dateoccurs, provided that Seller then the first rent collected by Purchaser shall not agree be applied to reduce current rents for any period of time after Closing in order to induce any tenants to pay and then towards subsequent delinquent rentsrent. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence If on the Closing Date and shall expire on rent is in arrears only for the day which is one hundred eighty (180) days subsequent to the date calendar month when the public telephone directory pertaining to each Property is published subsequent to Closing occurs, then the Closing Date. During such period, first rent collected by Purchaser shall have be apportioned between Seller and Purchaser. Any amounts due to Seller shall be paid by Purchaser to Seller within 10 days of receipt of such amounts. Any amounts collected by Purchaser pursuant to this Paragraph are hereinafter collectively referred to as the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein"Post Closing Receipts". Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period first 90 days after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, then Purchaser shall be responsible deliver to pay same subsequent Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Paragraph 12.2 of this Agreement shall survive the Closing Date (but no such payment shall accrue to and the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rentsa) As applicable, but including prepaid rents); prepaid associations general real estate taxes, assessments, homeowner's association dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilitycondominium association dues, if anycondominium fees, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; utility payments and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas that are customarily prorated shall be prorated with respect to the Properties at the Closing. In the event that final bills (including but not limited to real estate tax bills) are not available or cannot be issued prior to Closing based for any item being prorated then Purchaser and Seller agree to allocate such items on the most recent ascertainable data. Seller shall pay at Closing the a fair and equitable basis as soon as such bills therefor for the period are available, final adjustment to and including be made as soon as reasonably possible after the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill but in no event later than three hundred sixty-five (365) days after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than Payments in connection with final adjustment shall be due within thirty (30) days of written notice.
(b) All prorations are final unless otherwise indicated in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. this Agreement.
(c) If the amount of any the current real estate taxes and assessments for the Properties is not ascertainable at the time of the items to closing, said taxes and assessments shall be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to and assessments, and the Properties. The fees or commissions payable to said consultants (if any) parties shall reprorate the taxes and assessments when the actual bills therefor shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationsissued; provided, however, that such prorations if any Property is not assessed as a separate parcel for tax purposes, then (a) taxes and assessments attributable to Property shall be deemed final based upon an amount equal to the most recent ascertainable taxes and not subject to further post-closing adjustments assessments for the tax parcel of which such Property is a part multiplied by a fraction the denominator of which shall be the total number of square feet in the tax parcel of which such Exercised Lot is a part and the numerator of which shall be the number of square feet in such Property, and (b) said taxes and assessments shall be reprorated when the actual separate bills for such Property shall be issued.
(d) If, at 5:00 PM Chicago the time on the day which is thirty (30) days following of Closing, at which time all prorations the Property is not being treated as a separate tax parcel, then, within thirty days after Closing, the parties shall be deemed final file the necessary petitions and not subject applications to further post-closing adjustment. have the Property assessed as a separate tax parcel.
(e) The provisions of the preceding sentence obligations set forth in this subparagraph (E) shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Heartland Partners L P)
Prorations. 13.1. Rents 5.4.1 The following shall be prorated between Seller and Purchaser as of 12:01 a.m. on the Closing Date (exclusive on the basis of delinquent the actual number of days elapsed over the applicable period):
(a) All real estate taxes, water charges, sewer rents, but including vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges actually received. Seller shall deliver or provide a credit in an amount equal to all prepaid rents); prepaid associations dues, rentals for periods after the Closing Date and all refundable security deposits (which will be assigned to the extent the foregoing were made by tenants under the Leases and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period not applied or forfeited prior to the Closing Date less any amount previously paid by in accordance with the tenants shall be credited terms of the respective Leases) to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. Purchaser on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay deliver to Purchaser at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance tenant security deposits which are held in the ordinary course form of business), then Purchaser shall be charged its portion letters of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2credit. Rents which are delinquent as of the Closing Date shall not be proratedprorated on the Closing Date. Instead, Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to receives rents on or after the Closing Date, provided such payments shall be applied first toward the rents for the month in which the Closing occurs (and prorated between Purchaser and Seller accordingly), second, to the rents that shall then be due and payable to Purchaser for the period of time following the month in which Closing occurs, and third to any unpaid rents owed to Seller shall for the period of time prior to the month in which Closing occurs, with Seller’s share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser. Purchaser may not agree waive any delinquent rents or modify a Lease so as to reduce rents or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of time after Closing charges or amounts without first obtaining Seller’s written consent, which consent may be given or withheld in order to induce any tenants to pay delinquent rentsSeller’s sole and absolute discretion. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have hereby reserves the right to retain pursue any portion remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to seek to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or declare a default under any Lease). With respect to delinquent rents and any other amounts or other rights of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though kind respecting tenants who are no longer tenants of the tenant is delinquent in paying rent Property as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein grantedretain all rights relating thereto.
(c) Purchaser shall make arrangements with All income and operating expenses customarily apportioned between sellers and purchasers of real estate properties similar to the pertinent telephone companies so that all existing telephone directory listings Property and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and located in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of same geographic area as the cost of such listing and/or advertisement attributable to the period after ClosingProperty.
(d) In the event any third party (such as telephone company Charges and payments under Assumed Contracts or billboard company) makes a separate charge for the use of such listings permitted renewals or advertising subsequent replacements thereof assigned to Purchaser pursuant to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit Assignment and Assumption of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)Contracts.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used Any fees or licenses prepaid by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property Seller for which Purchaser continues will receive credit or benefit following Closing, including, without limitation, fees for licenses which are transferred to use Purchaser at the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysClosing and annual permit and inspection fees.
(f) If Purchaser continues to use said logos or trade names beyond Utilities, including, without limitation, telephone, steam, electricity and gas, on the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws basis of the state where most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings.
(g) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property is located if the same are assigned to prevent such unauthorized use or Purchaser at the Closing, which shall be credited in their entirety to recover any damages authorized by such lawsSeller.
(h) Intentionally Deleted.
(i) Intentionally Deleted.
(j) Intentionally Deleted.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants and similar items shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by PurchaserPurchaser and Assessments payable in installments which are attributable to the period of time prior to Closing shall be paid by Seller. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled delinquent rent referred to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 12.2 below.
12.2. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of basic rent paid following the Closing Date so that Seller shall be responsible for by any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions tenant of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser Property who is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent indebted under a lease for basic rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date and said Lease is not assigned to after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all current basic rent shall be deemed a "Post-Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, Receipt" until such time as all such indebtedness is paid in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
full. Within ten (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have pay such Post-Closing Receipt to Seller, subject to proration for the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinmonth of Closing. Purchaser shall not use the existing logos or trade name on stationeryits best efforts to collect all amounts which, business cardsupon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone numberupon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of will pay the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 12.2 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents The following adjustments to the Purchase Price shall be made at the Closing by proration of the amounts as specified below as of 11:59 p.m. of the date preceeding the closing:
(exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; a) Ad valorem real estate and personal property taxes prorated applicable to the Properties for 1996, such apportionment to be made on the basis of the previous year's taxes unless the bill therefor is avail▇▇▇▇. Once the taxes for 1996 are established, upon written demand by either party, the parties shall promptly recompute such proration in accordance with the current tax figures, and any excess payment or credit received by a "net" basis party shall promptly be reimbursed by it to the other party. Buyer shall have the right to contest the 1996 taxes and Seller shall provide Buyer with any information in Seller's possession to assist such contest. The provisions for readjustment of taxes are intended to and shall survive the Closing of this transaction.
(i.e. adjusted for all tenants' liabilityb) Water and sewer rentals, if any, for such items); operating expenses which are reimbursable by the tenants charges for the period 10/29/96 6 supply of electricity, gas, trash collection and other utility and service charges.
(c) Charges and receipts under service, maintenance, and other like contracts affecting the Subject Property. The amount of charges paid by Seller prior to the Closing Date less any amount previously paid by and attributable to a period after the tenants Closing shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the The amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith receipts received prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and attributable to a period after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject credited to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after ClosingBuyer.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent All other proratable items with respect to the Closing DateSubject Property, then Purchaser including, but not limited to, rents. Security deposits shall be responsible transferred as an escrow item which shall not adjust the Purchase Price. Rents and reimbursements for periods prior to pay same subsequent Closing which have not been collected as of Closing, shall be applied first to the post-Closing Date (but no such payment shall accrue date delinquencies, and then to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)pre-Closing date delinquencies.
(e) Purchaser's temporary license set forth in this paragraph shall expire on All items to be adjusted for which figures are not available at the date(s) set forth above. If Purchaser continues Closing, including real estate taxes for the year 1996, will be adjusted, and payment therefor will be made by Seller to use the name currently being used Buyer or by the Property subsequent Buyer to the expiration date of this temporary license set forth aboveSeller, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day as appropriate, as soon as figures are available after the permitted date set forth above for each Property for which Purchaser continues to use Closing and, in the existing trade name. In no eventcase of revenues, howeverif any, shall such extended license period exceed ninety (90) additional dayswhen they are collected.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing DateDate (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments which are required to be paid for the calendar year or fiscal year, as the same may be applicable in accordance with the period used by the applicable taxing authority, in which the Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (c) below) and operating expenses payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ClosingClosing Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Closing Time. If the utility company will not issue separate bills, the Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be mutually and reasonably prepared by Seller and Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities at least two (so long as no more than thirty (302) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent prior to the Closing Date (the “Closing Statement”). Purchaser and Seller hereby agree to use good faith efforts to finalize the Closing Statement in accordance with the provisions of this Agreement. The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Time, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable databest evidence then available; (hereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect No prorations will be made in relation to insurance premiums (except to the Propertiesextent covered by the proration of Operating Expense Recoveries), i.e., those agreements which Seller has entered into with firms who are entitled and Seller’s insurance policies will not be assigned to a commission based on services rendered Purchaser. Final readings and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (final ▇▇▇▇▇▇▇▇ for utilities will be made if any) shall be treated as a portion of the real estate tax liability to be pro-rated possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationsutility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller within nine (9) months following the Closing. The provisions of this Section 10.4 (excluding subsection (e) which is governed by Section 3.2(a) above) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing Time) of all Rentals previously paid to or collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to Seller or its successor by tenants under the Tenant Leases or from other occupants or users of the Property), excluding specific tenant ▇▇▇▇▇▇▇▇ which are governed by Section 10.4(d) below. Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. All sums collected by Purchaser from and after Closing within ninety (90) days of the Closing Date from each Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time governed by Section 10.4(c) below and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to current amounts owed by such Tenant to Purchaser and then to prior delinquencies owed by such Tenant to Seller. Seller shall have no right to any Delinquent Rentals collected by Purchaser after the expiration of ninety (90) days after the Closing Date; provided, however, that such prorations the foregoing limitation on Delinquent Rentals shall be deemed final not apply to Seller’s right to collect tax expenses in the amount of $191,736.18 and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions Northrop Grumman’s share of the preceding sentence shall survive Above Ground Storage Tank in the Closing.
13.2. Rents which are delinquent amount of $57,911.47, both due and owing from Northrop Grumman as of the date of the Closing Date (collectively, the “NG Pre-Closing Payables”) which NG Pre-Closing Payables shall not be prorated. Instead, to the extent that Purchaser is able remain Seller’s right to collect said delinquencies, from Northrop Grumman so long as Hincs Interests Limited Partnership is the manager under the Management Agreement and thereafter Purchaser shall be entitled agrees to receive such delinquent rent attributable use commercially reasonable good faith efforts to a tenant's occupancy of a portion of obtain the Real Property NG Pre-Closing Payables from Northrop Grumman for any period prior delivery to the date of Closing, free from any claim thereon by the Seller. Any sums collected by Purchaser and due Seller may use whatever lawful means are available will be promptly remitted to Seller to collect any delinquencies up to and until Seller. Notwithstanding the day prior to the Closing Dateforegoing, provided that Seller shall not agree to reduce rents for any period of time however, after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) no right, other than with respect to any Lease which will remain effective subsequent the NG Taxes, to Closingcollect Delinquent Rentals, even though the amounts owed for Operating Expense Recoveries and ▇▇▇▇▇▇▇▇ for tenant is delinquent in paying rent as of the Closing Datework orders directly from Tenants.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Wells Real Estate Investment Trust Ii Inc)
Prorations. 13.1(a) The Parties will each execute and deliver to Escrow Agent for the Closing a closing statement setting forth the Purchase Price and all closing credits, prorations, charges, costs and adjustments contemplated by this Agreement. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which All prorations will be assigned calculated as of the Closing Date by Escrow Agent, based upon the latest available information, with income and expense for the Closing Date being allocated to and assumed Buyer. Buyer will receive a credit for any rent paid or payable by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants Tenant for the period prior to beginning with and including the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to through and including the Closing, last day of the month in which Closing occurs. All other credits and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion charges to Buyer and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be similarly prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. Real estate taxes and assessments, if not the sole responsibility of Tenant under the Lease, will be prorated on an accrual basis and, if actual amounts are not available, will be based upon the current valuation and latest available tax rates or assessments. All costs associated with telephone directory listings pre-paid or abated rents or deposit amounts (including any tax or expense escrows and any security deposits) held by Seller under the Leases, if any, will be paid to Buyer in the form of a credit against the Purchase Price. If after Closing either Party receives any rents or other prepaid advertisements shall amounts that properly belong to the other Party based up on the Closing prorations, such amounts will be prorated as of immediately remitted to such other Party.
(b) If after Closing either Party discovers any errors, or receives additional information, indicating that the prorations were inaccurate, such Party will promptly notify the other and the Parties will correctly re-prorate the amounts in question. No such correction will be required later than twelve (12) months after the Closing Date so that Seller shall be responsible for any costs associated therewith unless prior to such date the Closing Date Party seeking the correction has given a written notice to the other Party specifying the nature and Purchaser shall be responsible basis for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationscorrection; provided, however, that if a correction is sought because current tax or assessment bills for the Property were not available as of Closing, the correction period with respect to the closing proration of such prorations shall be deemed final and not subject to further posttaxes or assessments will if needed continue beyond such 12-closing adjustments at 5:00 PM Chicago time on the day which is month period until thirty (30) days following Closingafter Buyer’s receipt of the applicable bills. In the event of any re-proration under this Section, at which time all prorations shall the Party owing funds will within thirty (30) days after determination remit to the other Party the amount shown to be deemed final and not subject to further post-closing adjustmentdue. The provisions of the preceding sentence this Section 12 shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Prorations. 13.1. (a) Rents and any additional charges and expenses payable by Tenants under Leases; real property taxes and assessments; water, sewer and utility charges; amounts payable under any Service Contracts (exclusive of delinquent rents, but including prepaid rentsother than Terminated Contracts); prepaid associations dues, refundable security deposits annual permits and/or inspection fees (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closingcalculated on the basis of the period covered); fuels; prepaid operating expenses; management fees in and any other income or expenses of the amount operation and maintenance of 6% of the Property shall all be prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the date immediately preceding the Closing DateDate (i.e., and credited Purchaser is entitled to the balance income and responsible for the expenses of the cash due at day of Closing. Utilities), including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable databasis of a 365-day year and otherwise in accordance with this Section 10.5. Seller shall pay deliver draft prorations to Purchaser at least five (5) Business Days before Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Date.
(b) Purchaser shall receive a credit against at Closing for all rents, including estimated payments for operating expenses and real estate taxes, collected by Seller prior to the Purchase Price for Seller's portion Closing and shall pay allocable to the entire utility bill period after Closing. If No credit shall be given the Seller h▇▇ ▇refor accrued and unpaid rent or any other non-paid any such utilities (so long current sums due from tenants except as no more than thirty (30) days provided in advance this Section 10.5(b). All rent or other sums collected or received by Seller after Closing shall be promptly remitted to Purchaser to be applied and distributed in accordance with this Section 10.5(b). All rent received by Purchaser after Closing shall be applied first to current rentals and then to delinquent rentals in the ordinary inverse order of maturity. Purchaser shall use reasonable efforts to collect rents and other sums owing to Seller in the usual course of business)Purchaser’s operation of the Property, then provided, however, that Purchaser shall not be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered required to and paid directly by tenants and for which Seller has no obligation pursue or institute any action to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts evict any tenant or any other collection proceedings to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Sellercollect delinquent rentals. Seller shall have no right to contact Tenants or collect any such rents and other sums from Tenants after Closing and Seller shall have no right to cause any such Tenant to be reimbursed at Closing for evicted or to exercise any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at other landlord remedy against such Tenant after Closing. Assessments payable in installments which are due subsequent In the event Seller receives rents from Tenants applicable to periods after the Closing Date Date, Seller shall immediately forward the full amount of such rents to Purchaser to be paid applied by Purchaser. If Purchaser in accordance with this Section 10.5(b).
(c) At Closing, (i) Seller shall credit Purchaser with the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect cash security deposits actually held by Seller pursuant to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled Leases (to a commission based on services rendered and the extent to which they such security deposits are able to achieve a reduction not applied against delinquent rents in accordance with the Leases). Any taxes that are payable in the real estate taxes otherwise payable with respect to year in which the Properties. The fees or commissions payable to said consultants Closing occurs (if any“Current Tax Year”) shall be treated as a portion prorated between Purchaser and Seller based upon the number of days in the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith Current Tax Year prior to the Closing Date and Purchaser (which shall be responsible for any costs associated therewith arising from allocated to Seller) and the number of days in the Current Tax Year on and after the Closing Date. All prorations described in this Agreement Date (except prorations for real and personal property taxes which shall be deemed final as prorated on allocated to Purchaser). Fees and charges under the Service Contracts (other than the Terminated Contracts) in respect of the most recent billing period which includes the Closing DateDate (“Current Billing Period”) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at prorated on a per diem basis based upon the Closing and to correct any errors made at number of days in the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day Current Billing Period prior to the Closing Date, provided that Seller Date (which shall not agree be allocated to reduce rents for any period Seller) and the number of time days in the Current Billing Period on and after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date (which shall be allocated to Purchaser) and said Lease assuming that all fees and charges are incurred uniformly during the Current Billing Period. Calculations hereunder shall be based upon the most recent statement rendered to Seller by the applicable service provider and, after an actual statement covering the Current Billing Period is not assigned to the Purchaser. Furthermorereceived, the Seller a copy shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) be delivered to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of or Seller, in place advertising, telephone directory listings and advertisementsas applicable, and telephone numbers, at each the apportionment of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller charges hereunder shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingrecomputed if necessary.
(d) In Seller and Purchaser hereby agree that if any of the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall aforesaid prorations and credits cannot reasonably be responsible to pay same subsequent to calculated accurately on the Closing Date (but no or in the case of rents or other charges received from Tenants, such payment amount have not been collected, then the same shall accrue be calculated as soon as reasonably practicable after the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the benefit other party within sixty (60) days thereafter. Upon request of either party, the Seller parties shall provide a detailed and accurate written statement signed by such party certifying as to the payments received or constitute a credit against a debt otherwise owed expenses incurred by such party from Tenants from and after Closing and to the manner in which such payments were applied, and shall make their books and records available for inspection by the Seller to said third party)other party during ordinary business hours upon reasonable advance notice.
(e) Purchaser's temporary license set forth Not more than sixty (60) days after the Closing, Seller and Purchaser shall make a final calculation of the real estate taxes, operating expenses and all other prorations or adjustments for the Property, including any adjustments for rent or escalation payments payable under the Leases in this paragraph shall expire on the date(s) set forth aboveconnection therewith. If such calculation discloses that Seller has collected more in estimated payments from Tenants for rents, operating expenses and taxes than it is entitled to retain after the final reconciliations are completed, Seller shall pay such excess to Purchaser continues to use the name currently being used by the Property subsequent for refund to the expiration date tenants, and if Seller has collected less in estimated payments than it is entitled to receive after the final reconciliations are completed, Purchaser shall pay such amounts to Seller when and as collected from the tenants. No insurance policies of the Seller are to be assigned or otherwise transferred to the Purchaser, and no apportionment of the premiums therefor shall be made. The provisions of this temporary license set forth above, then Purchaser Section 10.5 shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional dayssurvive Closing.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, security deposits which are refundable under the leases regardless of the effect of Seller's bankruptcy or any foreclosure may have on such security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the later of the Closing Date or the actual date of the closing of this transaction ("Proration Date"), and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled delinquent rent referred to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing DateParagraph 12.2 below.
12.2. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of basic rent paid following the Closing Date so that Seller shall be responsible by any tenant of the Property who is indebted under a lease for any costs associated therewith period prior to and including the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final a "Post-Closing Receipt" until such time as prorated on all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay to Seller an amount equal to the amount such Post-Closing Date) Receipt exceeds the amount currently due by the tenant paying such Post-Closing Receipt under its lease. Purchaser shall be subject use its best efforts to postcollect all amounts which, upon collection, would constitute Post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; Receipts hereunder provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date Purchaser shall not be prorated. Instead, required to the extent that Purchaser is able instigate litigation to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the SellerPost-Closing Receipts. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time Within 120 days after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone number. upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller may also place a listing and/or advertisement in such publication, said additional Post-Closing Receipts and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use performing Seller's audit. Paragraph 12.2 of such listings or advertising subsequent to this Agreement shall survive the Closing Date, then Purchaser shall be responsible to pay same subsequent to and the Closing Date (but no such payment shall accrue to the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents Prepaid or accrued (as the case may be) interest on the Loan Documents, rents for the month of the Closing (exclusive of delinquent rents, but including prepaid rents); prepaid associations duesany previously paid signing bonus or similar payment relating to any laundry room, cable, telephone or similar agreement in effect as of the Closing, refundable security deposits with interest if required by local law (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); refundable and non-refundable pet and cleaning fees and deposits, water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted as provided for all tenants' liability, if any, for such itemsin the next following sentence); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. 12:01 A.M. on the Closing Date ("Proration Date"), and credited or debited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas Real property taxes shall be prorated at Closing based on the following information in the following circumstances: (i) if the current tax b▇▇▇ is available, real property taxes shall be prorated based on that tax b▇▇▇; (ii) if the tax b▇▇▇ for the current tax year is not available and the assessed valuation for the Property for the current tax year is not available, real property taxes shall be prorated based on 106% of the most recent ascertainable datarecently available tax b▇▇▇; and (iii) if the tax b▇▇▇ for the current tax b▇▇▇ is not available but the assessed valuation for the Property for the current tax year is available, real property taxes shall be prorated based on 101% of the tax rate for the prior tax year multiplied by the equalization factor for the prior tax year, if applicable, multiplied by the current assessed valuation for the Property. In addition, Seller shall pay at Closing receive as a credit from Purchaser the bills therefor for amount of any escrow and reserve accounts relating to the period to Bonds and/or the Loan Documents (including, without limitation, debt service escrow accounts, tax escrow accounts, replacement reserves, repair reserves and including the Closinginsurance escrow accounts). Finally, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive as a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid at Closing any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business)amounts, if any, then Purchaser shall be charged its portion owing by the Seller to the Lender which are unrelated to the assumption of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly the Bonders by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and or the release of Seller may accomplish under the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by PurchaserBonds. If the amount of any of the items to be prorated is not then ascertainable, the adjustments adjustment thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under All prorations will be final except as to Delinquent Rents referred to in 13B below, and errors in calculation on the Seller's existing real estate tax consulting agreements with respect to closing statement. If special assessments have been levied against the PropertiesProperty for completed improvements, i.e., those agreements then the amount of any installments which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith due prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from paid by the Seller; and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions amount of the preceding sentence shall survive the Closing.
13.2. Rents installments which are delinquent as of due after the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon paid by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible All assessments for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller incomplete improvements shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closingpaid by Purchaser.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to 15.1 Water and assumed by Purchaser and credited to Purchaser at Closing)other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityliabilities, if any, for such items); tenant reimbursement obligations for operating expenses which are reimbursable paid by Seller for the tenants period prior to the Closing Date; unpaid operating expenses for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellerprorated on a "net" basis, as set forth above; and all other similar items of expense and income shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the Closing Date ("Proration Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business"), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing entitled to a credit for any all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, payable in installments which the Seller has deposited with any utility company and which will be assigned are due prior to the Purchaser at ClosingClosing Date shall be paid by Seller. Assessments Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing If any ongoing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller contest has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the conte▇▇, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All costs associated with telephone directory listings other prorations will be final except as provided in Paragraphs 15.2, 15.3 and any 15.
15.2 All base rent, percentage rent and other prepaid advertisements common area maintenance, tax and insurance charges actually paid by tenants under the Leases and all other items of income actually received from the operation of the Property (all such charges other than base rent, "Additional Rent") shall be prorated as of the Closing Date so that Proration Date. To the extent the Leases provide for the adjustment of previously paid estimates of Additional Rent on a date after the Proration Date, Seller shall be entitled to receive, or shall be responsible for to pay, as the case may be, its pro rata share of any costs associated therewith such adjusted amounts which are applicable to periods ending prior to the Proration Date. If the Additional Rent due from tenants for 1996 (exclusive of Additional Rent due from Corestates Bank) is less than $20,000, Seller shall receive a credit from Purchaser at Closing Date for such amount due, and such credit shall be final, irrespective of the amounts actually collected by Purchaser from tenants). If the Additional Rent due from tenants for 1996 is greater than $20,000 (exclusive of Additional Rent due from Corestates Bank), Purchaser's credit to Seller for amounts in excess of $20,000 shall be escrowed at Closing, and disbursed to Seller based on the amount actually collected from tenants. Notwithstanding the foregoing, Purchaser shall not be responsible obligated to credit Seller at Closing for any costs associated therewith arising Additional Rent due from Corestates Bank in excess of $20,000 and after the Closing Date. All prorations described any amount due from Corestates Bank in this Agreement (except prorations for real and personal property taxes which excess of $20,000 shall be deemed final as prorated on escrowed and disbursed in the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at same manner provided in the Closing and to correct any errors made at the Closing foregoing sentence with respect to Additional Rent due from other tenants. Purchaser shall deliver to each tenant of the Property (with a copy of each to Seller) a final reconciliation of Additional Rent due for calendar year 1996 on or before March 15, 1996. Purchaser shall use reasonable efforts (without any obligation to terminate leases or initiate lawsuits) to collect such prorations; providedAdditional Rent from such tenants. On or before June 1, however1996, that such prorations Purchaser shall provide Seller with a reconciliation of the amount of all Additional Rent collected from tenants for calendar year 1996, and the amount so collected shall be deemed final and not subject promptly disbursed from the aforementioned escrow to further post-closing adjustments at 5:00 PM Chicago time on Seller (or paid by Purchaser to Seller from amounts collected, if the day which escrowed amount is thirty (30) days following Closingless than the full amount of Additional Rent collected for calendar year 1996). Notwithstanding anything to the contrary herein, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The the provisions of the preceding sentence this Paragraph shall survive the Closing.
13.2. Rents which are delinquent as of 15.3 All basic rent paid following the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion by any tenant of the Real Property who is indebted under a Lease for basic rent for any period prior to the date Proration Date in an amount greater than the amount of Closing, free from any claim thereon all current basic rent owed by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the said tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at shall be deemed a "Post-Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, Receipt" until such time as all such indebtedness is paid in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
full. Within ten (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall not use the existing logos its reasonable, good faith efforts, at no additional cost or trade name on stationeryexpense to Purchaser, business cardsto collect all amounts which, contracts or other documentsupon collection, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 180 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expensefirst 150 days after the Closing Date. Such listing and/or advertisement may list Upon the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion delivery of the cost Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of such listing and/or advertisement attributable the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. This Paragraph 15.3 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
15.4 All refunds in connection with any ongoing real estate tax protests for the Property initiated by Seller prior to the period after Closing.
(d) Closing shall remain the property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the event any third party (such as telephone company refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees, at no cost or billboard company) makes a separate charge for the use of expense to Purchaser, to execute any documents reasonably requested by Seller in connection with such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)tax protests.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”):
(i) Rents, in accordance with Section 10.4(b) below.
(ii) Seller shall credit Purchaser at Closing with all cash Security Deposits and any prepaid rents, together with any interest to be paid to the Tenant thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas a per diem estimated adjustment shall be prorated at made for the days between the meter reading date and the Closing Date based on the most recent ascertainable data. Seller shall pay at Closing meter reading.
(iv) Amounts payable under the bills therefor Service Contracts.
(v) All real estate and personal property taxes and assessments, prorated for the period to for which such taxes and including assessments are assessed, regardless of when payable, on the Closingbasis of the number of days in such period the Property will have been owned by Seller and Purchaser, and the Purchaser shall pay the utility bills therefor for all periods subsequent theretorespectively. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hcurrent tax ▇▇▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business)is not available at Closing, then Purchaser shall be charged its portion of such payment at Closing. No the proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable datatax ▇▇▇▇. The Any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and assessments for the fiscal year in which Closing occurs have been determined but have not been paid before Closing, Seller shall be charged and Purchaser credited at Closing with an amount equal to that portion of such taxes and assessments which relates to the period before the date of Closing, and Purchaser shall pay the taxes and assessments prior to the same becoming delinquent. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume Seller's obligations under the Seller's existing all expenses incurred or to be incurred in connection with any real estate tax consulting agreements appeals that are pending at the time of Closing. Notwithstanding anything to the contrary contained in this Agreement, Seller reserves the right to meet with governmental officials and to continue to contest any reassessment or assessment of the Property or any portion thereof as set forth on Exhibit P and to attempt to obtain a refund for any taxes previously paid. Seller shall retain all rights with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled any refund of taxes applicable to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith period prior to the Closing Date and Purchaser shall be responsible for retain all rights with respect to any costs associated therewith arising from and refund of taxes applicable to any period on or after the Closing Date. All prorations described in this Agreement
(except prorations for real and personal property taxes which vi) [This section intentionally omitted.]
(vii) Seller shall be deemed final responsible for all salary, bonus (including any stock bonus) and benefits owed to the Company California Employees on account of employment prior to the Closing. To the extent that any of Westcore Management’s employee benefits impose a waiting period on new employees before such benefit will be available, and Seller or MCRC has the ability to continue comparable benefits post-Closing in favor of the Company California Employees, during all or a portion of such waiting period, payment to Seller or MCRC of the costs of continuing such benefits for such period. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as prorated on of the Closing Date) shall , the prorations will be subject made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to post-closing adjustments insurance premiums, and Seller’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as necessary to reflect later relevant information not available at of the Closing and to correct any errors Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such prorationsLease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. For purposes of this Agreement, rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to (i) pursue legal action to enforce collection of any such amounts owed to Seller by any Tenant, (ii) terminate the Lease with respect to any such Tenant, or (iii) terminate any Tenant’s right to possession under such Lease. After the Closing, if Purchaser declines to pursue a collection action against a Tenant for Delinquent Rental, then Seller shall have the right to do so; provided, however, that such prorations Seller shall be deemed final and not subject (A) terminate any Lease or terminate or disturb Tenant’s right to further post-closing adjustments at 5:00 PM Chicago time on possession thereunder, or (B) commence any lawsuit until the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions earlier of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of one year after the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period or one month prior to the date expiration of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period statute of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) limitations with respect to any Lease such claim. All sums collected by Purchaser from and after Closing from each Tenant (excluding tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to the month in which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller occurs, then to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) current amounts owned by such Tenant to Purchaser at Closing a temporary license and right then to use the logos currently used delinquencies owed by the Property which are the property of an Affiliate of such Tenant to Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant . Any sums due Seller will be promptly remitted to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 13.1. Rents At least two (exclusive of delinquent rents2) business days prior to, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated calculated as of the Closing Date. All costs associated with telephone directory listings , all obligations and any other prepaid advertisements shall liabilities listed below relating to the Business and/or Assets will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior Date, with Sellers liable to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, therefor to the extent that Purchaser is able such items relate to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any time period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until including the day prior to the Closing Date, provided that Seller shall not agree and Purchaser liable to reduce rents for Sellers therefor to the extent such items relate to any time period of time commencing on or after the Closing in order Date: personal property, real estate, occupancy and water taxes, if any, on or with respect to induce the Business and/or Assets; rents, taxes and similar items payable by Sellers under any tenants to pay delinquent rents. Seller shall not have Assigned Contract; the right subsequent to Closing to seek (by legal action or otherwise) the collection amount of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) license or registration fees with respect to any Lease Permits which will remain effective subsequent are being assigned or transferred hereunder; the amount of sewer rents and charges for water, telephone, electricity and other utilities and fuel; and any other items which are normally prorated in connection with similar transactions. Sellers agree to Closing, even though the tenant is delinquent furnish Purchaser with such documents and other records as Purchaser reasonably requests in paying rent as order for Purchaser to calculate all adjustments and prorations pursuant to this Section 1.5. The amount of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller such prorations owed by Purchaser or Sellers pursuant to do so, the Seller this Section 1.5 shall grant (or shall arrange for the owner thereof to grant) be paid to Purchaser at Closing a temporary license and right by Sellers or to use Sellers by Purchaser, as the logos currently used by the Property which are the property of an Affiliate of Sellercase may be, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent be treated as an adjustment to the date when the public telephone directory pertaining Purchase Price paid by Purchaser to each Property is published subsequent to Sellers on the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, If current payments with respect to each Property without additional compensation items to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall be prorated pursuant to this Section 1.5 are not use the existing logos or trade name ascertainable on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller payments shall be entitled to a pro-rata credit for such portion prorated on the basis of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser most recently ascertainable ▇▇▇▇ therefor and shall be responsible to pay same subsequent to reprorated between Sellers and Purchaser within 30 days after the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute and a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser cash settlement shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysmade promptly thereafter on an item by item basis.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. A. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; 1995 (if not paid) and 1996 real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments of record payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The parties agree to re-prorate the proration items within forty-five (45) days after the date of Closing, except as to delinquent rent referred to in Paragraph 12B below.
B. All sums paid following the Closing Date by any tenant of the Property who is indebted under a lease for any period prior to and including the Closing Date after the payment to Purchaser of all then current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall assume pay such Post-Closing Receipt to Seller's obligations under . For a period of sixty days following Closing, Purchaser shall send monthly collection notices to tenants residing at the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the PropertiesProperty owing Post-Closing Receipts. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of Within 90 days after the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and , Purchaser shall be responsible for any costs associated therewith arising from and deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 60 days after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall be deemed final as prorated on the deliver to Seller any Post-Closing Date) shall be subject Receipts owing to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final Seller and not subject previously delivered to further post-closing adjustments at 5:00 PM Chicago time on Seller in accordance with the day which is thirty (30) days following Closingterms hereof. At Seller's expense, Seller retains the right to conduct an audit, at which time all prorations shall be deemed final reasonable times and not subject upon reasonable notice, of Purchaser's books and records to further post-closing adjustment. The provisions verify the accuracy of the preceding sentence Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall survive the Closing.
13.2pay to Seller said additional Post-Closing Receipts. Rents which are delinquent as of Seller shall deliver to Purchaser any sums received by Seller after the Closing Date shall not be prorated. Instead, which relate to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy period of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day time prior to the Closing Date, provided that Seller along with an accounting identifying any such sums. Paragraph 12B of this Agreement shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before survive the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as delivery and recording of the Closing DateDeed.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Sale Agreement (Balcor Realty Investors 86 Series I)
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day prior to the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled delinquent rent referred to a commission based on services rendered in Paragraph 12.2 below and the extent to which they are able to achieve a reduction in the except for real estate taxes otherwise payable with respect to which will be reprorated upon receipt of actual bills. If any unit has remained vacant for more than 9 days without being made "rent ready", Seller will give Purchaser a credit of $250 for such unit for cleaning, painting touch-up, carpet shampoo and minor appliance repair. If such a unit requires carpet replacement or other renovation not covered by the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion preceding sentence, Purchaser and Seller will agree on the amount of the real estate tax liability credit to be pro-rated Purchaser. If Seller receives a credit for a utility deposit, Seller shall execute an assignment thereof substantially in the form attached as Exhibit N.
12.2. All monies received after Closing by Purchaser from any tenant of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible Property who is indebted under a lease for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of Closingsuch monies to current rent shall be deemed a "Post-Closing Receipt", free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior but only to the Closing Date, provided that Seller shall extent such pre-closing indebtedness has not agree to reduce rents for any period of time after Closing been paid in order to induce any tenants to pay delinquent rentsfull. Seller shall not have the right subsequent to Closing to seek Within ten (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall not use the existing logos or trade name on stationerygood faith efforts to collect all amounts which, business cardsupon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the right first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to place a listing and/or advertisement Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in such publication at Purchaser's sole cost accordance with the terms hereof. Paragraph 12.2 of this Agreement shall survive the Closing and expensethe delivery and recording of the Deed.
12.3. Such listing and/or advertisement may list At Closing, One Hundred Thousand and No/100 Dollars ($100,000.00) of the Purchaser's name balance of the Purchase Price shall be deposited in escrow pursuant to the terms of the Escrow Agreement and telephone numbershall constitute the "Holdback Escrow Funds". Seller may also place a listing and/or advertisement in such publication, and in Purchaser shall set forth the event that Seller decides outstanding rents and all other monthly payments due and payable to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable Purchaser (i.e. those allocable to the period of ownership of the Property by Purchaser) under the Leases for the month in which the Closing occurs that have not already been credited to Purchaser at Closing (the "Outstanding Rents Due") in a schedule to be created and agreed upon within three (3) business days after the date of Closing (the "Closing Rent Schedule"). Upon Closing, Purchaser shall use its best efforts to collect the Outstanding Rents Due. Purchaser shall also use commercially reasonable efforts to collect all rents and other monthly fees due under the Leases (in accordance with the various terms of the Leases) for the month following the month in which the Closing occurs. On or before 5:01 p.m. Chicago time on July 31, 1997, Purchaser shall deliver to Escrow Agent and Seller a schedule (the "Final Closing Rent Schedule") that accurately shows: (a) the total rents and all other monthly payments due and payable under the Leases for the month following the month in which the Closing occurs (the "Second Month Outstanding Rents Due"); (b) all Second Month Outstanding Rents Due actually collected by Purchaser as of the date of the Final Closing Schedule (the "Second Month Rents Actually Collected"); and (c) the difference between the Second Month Outstanding Rents Due and the Second Month Rents Actually Collected (the "Second Month Deficiencies"). In addition to setting forth the Second Month Deficiencies, the Final Closing Rent Schedule shall also set forth the Outstanding Rents Due that have still not been collected by Purchaser, together with appropriate documentation supporting any such amounts. The sum of (a) the Outstanding Rents Due which are still outstanding at the time of the Final Closing Schedule and (b) the Second Month Deficiencies shall be referred to as the "Rent Deficiency Sum". This Rent Deficiency Sum will represent Purchaser's opinion of the amount owing to it under the terms of this Paragraph 12.3 and the Final Closing Rent Schedule shall specifically instruct the Escrow Agent to disburse an amount equal to the Rent Deficiency Sum to Purchaser. Seller shall have ten (10) days following receipt of the Final Closing Rent Schedule to give Purchaser and Escrow Agent written notice of any objection to the Final Closing Rent Schedule. If Seller delivers a timely notice of objection then Seller and Purchaser shall work together in good faith to agree upon the Final Closing Rent Schedule (including, but not limited to, the Rent Deficiency Sum) , at which time Seller and Purchaser shall ▇▇▇▇▇ ▇ ▇▇▇nt letter of instruction to Escrow Agent setting forth the terms of the escrow disbursement. If Seller does not reply to the Final Closing Rent Schedule within ten (10) days then the Rent Deficiency Sum shall be distributed to Purchaser and the remaining Holdback Escrow Funds shall be distrubuted in accordance with the terms of the Escrow Agreement. Paragraph 12.3 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
12.4. If at any time within 120 days of the closing of the escrow account Purchaser receives any monies for which it has previously received payment from Seller pursuant to Paragraph 12.3 above (d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date"Post-Escrow Receipts"), then Purchaser shall be responsible obligated to pay same subsequent deliver any such Post-Escrow Receipts to Seller (along with a statement describing the same) within ten (10) days of Purchaser's receipt of the same. Seller shall retain the right to conduct an audit of Purchaser's financial records, at no cost to Purchaser, for a period of five (5) months from the close of escrow in order to verify, and only to the extent necessary to so verify, the information discussed in this Paragraph 12. Paragraph 12.4 of this Agreement shall survive the Closing Date (but no such payment shall accrue to and the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)Deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Sale Agreement (Balcor Realty Investors 84 Series Ii)
Prorations. 13.13.5.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior Subject to the Closing Date less any amount previously paid by terms and conditions of the tenants shall be credited to Seller; Time Brokerage Agreement, all items of income and other similar items shall be adjusted ratably as expense arising from the operation of 11:59 p.m. on the Closing Date, and credited STATIONS with respect to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, Purchased Assets and the Purchaser shall pay Assumed Contracts on or before the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course close of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address business on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaserfor the account of SELLER and thereafter shall be for the account of PURCHASER. If the amount of any Proration of the items described below between SELLER and PURCHASER shall be effective as of 11:59 p.m., local time, on such date and shall occur as follows with respect to those rights, liabilities and obligations of SELLER transferred to and assumed by PURCHASER hereunder.
3.5.2. Subject to the terms and conditions of the Time Brokerage Agreement, liability for state and local Taxes assessed on the Purchased Assets payable with respect to the tax year in which the Closing Date falls and the annual FCC regulatory fees for the STATIONS payable with respect to the year in which the Closing Date falls shall each be prorated is not then ascertainable, the adjustments thereof shall be as between SELLER and PURCHASER on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion number of days of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up Tax year elapsed to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of including the Closing Date.
13.33.5.3. To Prepaid items, deposits, credits and accruals such as water, electricity, telephone, other utility and service charges, lease expenses, license fees (if any) and payments under any contracts or utility services to be assumed by PURCHASER shall be prorated between SELLER and PURCHASER on the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each basis of the Properties pursuant period of time to the following terms which such liabilities, prepaid items and conditions:accruals apply.
(a) The temporary license granted by this paragraph 3.5.4. All prorations shall commence be made and paid insofar as feasible on the Closing Date and shall expire Date; any prorations not made on the day which is one hundred eighty (180) days subsequent to the such date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled made as soon as practicable (not to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days) thereafter. SELLER and PURCHASER agree to assume, pay and perform all costs, liabilities and expenses allocated to each of them pursuant to this Section 3.5.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spanish Broadcasting System Inc)
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”):
(i) Rents, in accordance with Subsection 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas a per diem adjustment shall be prorated at made for the days between the meter reading date and the Closing Date based on the most recent ascertainable datameter reading.
(iv) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa.
(v) Such other items of income and expense as are typically prorated at closing similar to the transaction contemplated by this Agreement. Seller shall pay at Closing the bills therefor will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ClosingProration Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Proration Time. If the utility company will not issue separate bills, the The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities two (so long as no more than thirty (302) days in advance in prior to the ordinary course of businessClosing Date (the “Closing Statement”). The Closing Statement, then Purchaser once agreed upon, shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly signed by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Date, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion basis of the real estate tax liability actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be pro-rated assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall , in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers, but Seller will, if necessary, maintain such prorations; provided, however, that deposits until such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is as Purchaser can post its own deposits (but in no event longer than thirty (30) days following after Closing, at which time all prorations shall ) so that such utility service will not be deemed final and not subject discontinued to further post-closing adjustmentthe Property. The provisions of the preceding sentence shall this Section 10.4(a) will survive the ClosingClosing for twelve (12) months.
13.2. Rents which are delinquent (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing Date shall not be proratedand attributable to any period following the Proration Time. Instead“Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include Tenant’s share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent that Purchaser is able to collect said delinquenciesthe same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenant under the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion Lease or from other occupants or users of the Real Property for any period prior to the date of Closing, free from any claim thereon by the SellerProperty. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day Rental is “Delinquent” when it was due prior to the Closing Date, provided that Seller shall and payment thereof has not agree been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to reduce rents for any period of time after Closing in order use good faith collection procedures with respect to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent Delinquent Rental, but Purchaser will have no liability for the failure to collect any period prior such amounts and will not be required to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned pursue legal action to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion enforce collection of any security deposit held such amounts owed to Seller by Seller Tenant. All sums collected by Purchaser from and after Closing from Tenant (if anyexcluding tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) with respect below) will be applied first to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) current amounts owed by such Tenant to Purchaser at Closing a temporary license and right then to use the logos currently used delinquencies owed by the Property which are the property of an Affiliate of such Tenant to Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant . Any sums due Seller will be promptly remitted to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Prorations. 13.1. Rents A. ▇▇▇ts (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; accrued but unpaid interest on the Note; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; 1995 (if not paid) and 1996 real and personal property taxes prorated taxes; accrued but unpaid interest on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; Note and other similar items shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments of record (other than ad valorem taxes) payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The parties agree to re-prorate the proration items within forty-five (45) days after the date of Closing, except as to delinquent rent referred to in Paragraph 12B below. In addition, Purchaser shall assume Seller's obligations give Seller a credit at Closing for all escrows, reserves and holdbacks held by the Lender under the Seller's existing real estate tax consulting agreements with respect Loan Documents, except for amounts, if any, of such escrows, reserves and holdbacks applicable to expenses which relate to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith period prior to the Closing Date and for which Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information has not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closingbeen given a credit hereunder.
13.2. Rents which are delinquent as of B. All sums paid following the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion by any tenant of the Real Property who is indebted under a lease for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before including the Closing Date and said Lease is not assigned to after the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) payment to Purchaser at of all then current basic rent shall be deemed a "Post-Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, Receipt" until such time as all such indebtedness is paid in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
full. Within ten (a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logosSeller. For a period of sixty days following Closing, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use send monthly collection notices to tenants residing at the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified aboveowing Post-Closing Receipts. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 90 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 60 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. At Seller's expense, Seller retains the right to place a listing and/or advertisement in such publication conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's sole cost books and expense. Such listing and/or advertisement may list records to verify the Purchaser's name accuracy of the Post-Closing Receipts reconciliation statement and telephone numberupon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller may also place a listing and/or advertisement in such publication, and in shall deliver to Purchaser any sums received by Seller after the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable Closing Date which relate to the period of time after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser along with an accounting identifying any such sums. Paragraph 12B of this Agreement shall be responsible to pay same subsequent to survive the Closing Date (but no such payment shall accrue to and the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)Deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1Subject to the other provisions of this Section, the items pertaining to the Project that are identified in this Section shall be prorated between the parties on a per diem basis (employing the actual number of calendar days in the period involved and a 365-day year) so that credits and charges with respect to such items for all days preceding the Closing Date shall be allocated to Seller, and credits and charges with respect to such items for all days including and after the Closing Date shall be allocated to Purchaser. All prorations not specifically agreed to herein shall be made in accordance with customary practice in the county in which the Project is located. This Section 7.D. shall survive the Closing to the extent provided below. The Purchase Price for the Property shall be subject to prorations and credits as follows to be determined as of 12:01 A.M. on the Closing Date, the Closing Date being a day of income and expense to Purchaser:
1. Rents payable under Tenant Leases. Purchaser shall receive a credit at Closing for all rents collected by Seller prior to the Closing and allocable to the period from and after the Closing Date. No credit shall be given the Seller for accrued and unpaid Rent or any other non-current sums due from tenants until said sums are paid. Any portion of any rents collected subsequent to the Closing Date and properly allocable to periods prior to the Closing Date shall be paid, within thirty (exclusive of delinquent rents30) days after receipt, to the Seller, but including prepaid rents)subject to all of the provisions of this Section hereof; prepaid associations dues, refundable security deposits (which will be assigned and any portion thereof properly allocable to and assumed by Purchaser and credited periods subsequent to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityClosing Date, if any, shall be paid to Purchaser. Purchaser shall use reasonable efforts for a period of six (6) months after the Closing Date to collect any rent under the Tenant Leases which is past due as of the Closing and remit such items)collections to Seller within thirty (30) days after receipt; provided, however, Purchaser shall not be obligated to sue ▇▇▇ tenants. Any rent collected from a tenant by Purchaser shall be applied first to any past due rents owed to Purchaser and second to any past due rents owed to Seller; and any rent collected from a tenant by Seller shall be promptly remitted to Purchaser to the extent there are any past due rents owed to Purchaser; provided, however, if Seller uses any special efforts to collect any rent, including filing a lawsuit, any collections by Seller resulting from such special efforts shall be applied first to any past due rents owed to Seller. Seller shall have the right to sue ▇▇▇ants for rent accrued for the period prior to Closing as long as Seller does not sue ▇▇ terminate any Tenant Leases or evict any tenants.
2. Seller shall be entitled to retain all adjustment rent or escalation payments collected under the Tenant Leases and payable for the period prior to Closing for taxes, operating expenses and HVAC charges for the Project, and Purchaser shall retain all such rent or payments payable for the period after Closing. Purchaser shall be responsible for adjusting with the tenants all such payments for the year in which are reimbursable by the Closing occurs in accordance with the terms of the Tenant Leases. Upon any final adjustment for the year in which the Closing occurs, Seller shall remit to Purchaser for payment to the tenants any adjustment rent or escalation payments paid to Seller under the Tenant Leases in excess of the amounts due from the tenants for such taxes and expenses, and any amounts due Seller from the tenants shall be promptly remitted to Seller within thirty (30) days after collection from the tenants. Any collections of adjustment rent or escalation payments from tenants shall be applied in the same order as set forth above for base rent.
3. Percentage rents payable under any Tenant Leases shall be preliminarily allocated as of the Closing Date with Seller entitled to any such percentage rents payable for any period prior to the Closing Date less any amount previously paid by the tenants shall be credited and Purchaser entitled to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing percentage rents payable for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of period after the Closing Date. All costs associated with telephone directory listings Within one hundred twenty (120) days after the end of the fiscal year for each Tenant Lease, Seller and any other prepaid advertisements Purchaser shall reprorate such percentage rents based on the portion of the fiscal year for such Tenant Lease during which the Project was owned by Seller and the portion during which the Project was owned by Purchaser, without regard to when during such fiscal year such percentage rents were payable.
4. Real estate taxes imposed in respect of the Project for the current year and to the extent unpaid, for prior years shall be prorated as of the Closing Date so that Date. Such proration shall be based on the amount of taxes which would be payable, after any applicable discounts, if the taxes are paid at the earliest possible date, regardless of when such taxes are actually paid. If the amount of any such taxes have not been determined as of Closing, such credit shall be based on the most recent ascertainable taxes and shall be reprorated upon issuance of the final tax bill. ▇eller shall also give Purchaser a credit for any special assessments against the Project which are due and payable prior to Closing.
5. Utilities and fuel, including, without limitation, steam, water, electricity, gas and oil. The Seller shall cause the meters, if any, for utilities to be responsible for any costs associated therewith prior to read the day on which the Closing Date occurs and Purchaser shall be responsible for any costs associated therewith arising from and after to pay the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated bills rendered on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost basis of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth abovereadings. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall any such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.meter
Appears in 1 contract
Sources: Purchase and Sale Agreement (General Growth Properties Inc)
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants 5.4.1 The following shall be credited to Seller; prorated between Seller and other similar items shall be adjusted ratably Purchaser as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to day preceding the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be (on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under actual number of days elapsed over the Seller's existing real estate tax consulting agreements applicable period) with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that being a date of income and expense for Purchaser:
(a) All real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Seller shall be charged with or be responsible for any costs associated therewith prior to increase in the Closing Date and Purchaser shall be responsible for taxes on the Property resulting from the sale of the Property or from any costs associated therewith arising from and improvements made or leases entered into on or after the Closing Date. All prorations described If any assessments on the Property are payable in this Agreement (except prorations installments, then the installment for real and personal property taxes which the current period shall be deemed final prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date). Notwithstanding anything to the contrary contained herein, taxes shall be prorated utilizing the maximum available discount for prepayment of such taxes.
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges if, as prorated and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits together with all interest thereon, if any, payable to such tenants (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date) to Purchaser on the Closing Date) . Seller shall be subject deliver to post-closing adjustments as necessary to reflect later relevant information not available Purchaser at Closing any security deposits which are held in the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions form of the preceding sentence shall survive the Closing.
13.2letters of credit. Rents which are delinquent as of the Closing Date shall not be proratedprorated on the Closing Date. Instead, Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to receives rents on or after the Closing Date, provided such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents for the month preceding the month in which the Closing occurs, third to the rents that shall then be due and payable to Purchaser, and fourth to any delinquent rents owed to Seller, with Seller's share thereof being held by Purchaser in trust for Seller shall and promptly delivered to Seller by Purchaser. Purchaser may not agree waive any delinquent rents nor modify a Lease so as to reduce rents or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of time after Closing charges or amounts without first obtaining Seller's written consent, which consent may be given or withheld in order to induce any tenants to pay delinquent rentsSeller's sole and absolute discretion. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have hereby reserves the right to retain pursue any portion remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to terminate any lease or any tenant's right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall reasonably cooperate with Seller, at no cost to Purchaser, in any collection efforts hereunder (but shall not be required to litigate or declare a default under any Lease). With respect to delinquent rents and any other amounts or other rights of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though kind respecting tenants who are no longer tenants of the tenant is delinquent in paying rent Property as of the Closing Date, Seller shall retain all rights relating thereto.
13.3. To (c) All operating expenses.
(d) Intentionally deleted.
(e) Charges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the extent it is reasonably possible Assignment and Assumption of Contracts.
(f) Any prepaid items, including, without limitation, fees for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees.
(g) Utilities which are not payable directly to the utility provider by a temporary license tenant, including, without limitation, telephone, steam, electricity and right gas, on the basis of the most recently issued bills therefor, subject to use adjustment after the logos currently used by Closing when the next bills are available, or if current meter readings are available, on the basis of such readings.
(h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assigned to Purchaser at the Closing, which are shall be credited in their entirety to Seller.
(i) Personal property taxes, if any, on the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each basis of the Properties pursuant fiscal year for which assessed.
(j) Intentionally deleted.
(k) Intentionally deleted.
(l) Such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the following terms Property and conditions:located in the Commonwealth of Pennsylvania subject to Section 7.2.3(a) hereof.
(a) The temporary license granted by this paragraph Seller shall commence on be given a credit for any payments Seller shall have made as of the Closing Date in respect of the expenditures described on EXHIBIT I attached hereto and made a part hereof. Notwithstanding the foregoing, Purchaser shall expire on the day which is one hundred eighty (180) days subsequent be obligated to the date when the public telephone directory pertaining to each Property is published subsequent to pay any and all costs and expenses incurred prior to, or from and after, the Closing Date, in connection with the pre-development of Lot #6 at the Westpark Property. During such periodIn addition, subject to the provisions of this Section 5.4.2(a), Purchaser shall bear all costs and expenses related to the transactions contemplated by that certain Lease Agreement dated December 30, 1997 by and between Westpark, as landlord, and Behr Process Corporation ("Behr"), as tenant (the "Behr Lease"), as amended by that certain Amendment to Lease Agreement dated August 2, 2001 (the "Behr Amendment") regarding the Expansion Premises (as such term is defined in the Behr Amendment) and Behr's expansion option as set forth in the Behr Lease, including, without limitation, (i) all outstanding construction costs and expenses incurred in connection with the Expansion Premises (which Seller estimates to be in the aggregate amount of $1,211,793.25) and (ii) any costs and expenses incurred in connection with correcting outstanding HVAC issues of Behr as set forth in the Behr Amendment.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that, with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to use request apportionment or reapportionment of any such item at any time following the existing logosone hundred eightieth (180th) day after the Closing Date. If the Closing shall occur before a real estate or personal property tax rate or assessment is fixed for the tax year in which the Closing occurs, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation the apportionment of taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the Seller except as set forth latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in Paragraph 13.1 herein. Purchaser computing apportionments at Closing shall not use be promptly corrected and the existing logos or trade name on stationeryproper party reimbursed, business cards, contracts or other documents, and which obligations shall not use survive the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerClosing.
(b) The 5.4.3 Items to be prorated at the Closing shall include a credit to Seller stipulates that there is full for costs and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements expenses incurred by Seller in connection with the pertinent telephone companies so that all any new Leases or modifications to any existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Leases entered into after the date hereof but before in accordance with the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost terms and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license conditions set forth in this paragraph shall expire on the date(sSection 7.2.3(a) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysAgreement.
(f) If Purchaser continues to use said logos or trade names beyond 5.4.4 The provisions of this Section 5.4 shall survive the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsClosing.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Subsection 10.4(b) below.
(ii) Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas a per diem adjustment shall be prorated at made for the days between the meter reading date and the Closing Date based on the most recent ascertainable datameter reading.
(iv) Amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa.
(vi) The value of fuel stored at the Real Property, at Seller's most recent cost, including taxes, on the basis of a reading made within five (5) days prior to the Closing by Seller's supplier. No adjustments shall be made on account of the Ground Lease. Seller shall pay at Closing the bills therefor will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ClosingProration Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Proration Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser The estimated Closing prorations shall be charged its portion of such payment at Closingset forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). No proration The Closing Statement, once agreed upon, shall be made for utility expenses that are separately metered to and paid directly signed by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Date, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable databest evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. The Purchaser shall assume No prorations will be made in relation to insurance premiums, and Seller's obligations under the Seller's existing real estate tax consulting agreements with respect insurance policies will not be assigned to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered Purchaser. Final readings and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (final ▇▇▇▇▇▇▇▇ for utilities will be made if any) shall be treated as a portion of the real estate tax liability to be pro-rated possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall , in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedutility bills. Seller will be entitled to all deposits presently in effect with the utility providers, however, that such prorations shall and Purchaser will be deemed final and not subject obligated to further post-closing adjustments at 5:00 PM Chicago time on make its own arrangements for any deposits with the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustmentutility providers. The provisions of the preceding sentence shall this Section 10.4(a) will survive the ClosingClosing for eighteen (18) months.
13.2. Rents which are delinquent (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing Date shall not be proratedand attributable to any period following the Proration Time. Instead"RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent that Purchaser is able to collect said delinquenciesthe same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion Leases or from other occupants or users of the Real Property for any period prior to the date of Closing, free from any claim thereon by the SellerProperty. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day Rental is "DELINQUENT" when it was due prior to the Closing Date, provided that Seller shall and payment thereof has not agree been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to reduce rents for any period of time after Closing in order use good faith collection procedures with respect to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent Delinquent Rental, but Purchaser will have no liability for the failure to collect any period prior such amounts and will not be required to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned pursue legal action to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion enforce collection of any security deposit held such amounts owed to Seller by Seller any Tenant. All sums collected by Purchaser from and after Closing from each Tenant (if anyexcluding tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) with respect below and excluding payments on account of 1999 reconciliations of operating expenses, utilities and real estate tax payments or payments in lieu thereof) will be applied first to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) current amounts owed by such Tenant to Purchaser at Closing a temporary license and right then to use the logos currently used delinquencies owed by the Property which are the property of an Affiliate of such Tenant to Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant . Any sums due Seller will be promptly remitted to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior Notwithstanding anything to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; contrary contained in this Agreement, all rent, additional rent, real estate taxes, common area maintenance and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Datecharges, insurance obligations and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments charges payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements Acquired Leases shall be prorated as of the Final Closing Date so that Seller for each Acquired Lease. Sellers agree to prorate real estate taxes and assessments based on when such taxes and assessments accrue, notwithstanding when such taxes and assessments become a lien on the premises leased by an Acquired Leases. All percentage rent based on sales payable under an Acquired Lease for the fiscal period in which the Final Closing Date for such Acquired Lease occurs shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after responsibility of the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; Sellers, provided, however, if Buyer opens for business from the applicable Store in the fiscal period in which the percentage rent is calculated, then percentage rent based on sales shall be prorated based upon the ratio that sales made at such Store for which percentage rents are calculated prior to the applicable Final Closing Date bears to the aggregate sales made for the relevant fiscal period for which percentage rents are computed. The Sellers shall reasonably cooperate with Buyer in providing documents required under the Acquired Leases in order to comply with percentage rent reporting requirements. The Sellers and Buyer agree to adjust between themselves after the applicable Final Closing any errors, reconciliations, or omissions in the prorations or adjustment set forth in the closing statements and any other prorations or adjustment made pursuant to this Agreement. Notwithstanding anything contained herein to the contrary, such apportionments shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed adjustments have been requested within ninety (90) additional daysdays after such time as all necessary information is available to make a complete and accurate determination of such apportionments.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fao Inc)
Prorations. 13.1. Rents 5.2.1 Rentals from Leases (exclusive of delinquent rentsincluding fixed monthly rentals and other periodic rentals, but including additional rentals, percentage rentals, operating cost pass-throughs and other sums and charges payable by the tenants), prepaid rents); rentals and prepaid associations duespayments (collectively, refundable “Rent”) shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all security deposits (which will be assigned to actually held by Seller and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, Rent which Seller has actually received before the Closing which is allocable to the period after the Closing. Seller shall not receive a credit for such items); operating expenses which are reimbursable by any Rent Seller has not received as of the tenants for Closing that is allocable to the period prior to the Closing Date less Closing. If Buyer shall collect any amount previously paid by such Rent (including without limitation percentage rent) after the tenants Closing, Buyer shall be credited promptly pay the same to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance after application of the cash same to any rent due at from the applicable Tenant after the Closing. Utilities, including water, sewer, electric, and gas .
5.2.2 Real estate taxes shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable dataassessed valuation of and rates and multiplier applicable to the Property. The Purchaser If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall assume Seller's obligations under make any necessary adjustment after Closing by cash payment upon demand to the Seller's existing real estate tax consulting agreements party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which arc allocable to the period after the Closing).
5.2.3 Seller shall endeavor to have all of its utility accounts with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated Property closed out effective as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements ; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs).
5.2.4 Common area and maintenance charges, property taxes, insurance and other operating cost pass-throughs payable by Tenants which accrue as of the Closing Date, but which are not then due and payable (collectively, the “Operating Expenses”), shall not be prorated, except as herein provided. Buyer shall receive and retain any Operating Expenses paid by Tenants on or after the Closing Date so that and Seller shall be responsible for receive and retain any costs associated therewith Operating Expenses paid by Tenants prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject any monthly or periodic deposits or payments of estimated Operating Expenses with respect to further post-closing adjustments at 5:00 PM Chicago time the month in which the Closing occurs received by Seller prior to the Closing Date or by Buyer on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of or after the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent prorated as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Buyer and Seller shall grant (or shall arrange for the owner thereof prorate at Closing, actual Operating Expenses collected by Seller from Tenants prior to grant) Closing with actual Operating Expenses paid by Seller with respect to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser so that if there are any rebates owing to Tenants for the period of Seller’s ownership, Seller shall have pay Buyer the right to use the existing logos, in place advertising, telephone directory listings and advertisementsamount of such rebates at Closing, and telephone numbers, if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to each Property without additional compensation the period of Seller’s ownership, Buyer shall promptly pay Seller the amount so owed to the Seller except as set forth in Paragraph 13.1 hereinlandlord upon Buyer’s receipt of the same (and Buyer shall exert diligent good faith efforts to collect the same). Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller Any prorations under this Agreement based upon monthly amounts shall be entitled to based upon a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
thirty (d30) In the event day month; any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser prorations under this Agreement based upon annual amounts shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute based upon a credit against a debt otherwise owed by the Seller to said third party)366 day year.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Prorations. 13.1. Rents (exclusive of delinquent A) Rents, including, without limitation, percentage rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for and any additional charges and expenses payable under tenant leases, all as and when actually collected (whether such items); operating expenses which are reimbursable by the tenants for the period collection occurs prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. to, on or after the Closing Date, ); real property taxes and credited to the balance of the cash due at Closing. Utilities, including assessments; water, sewer, electric, sewer and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid charges; amounts payable under any such utilities service contracts; annual permits and/or inspection fees (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be calculated on the basis of the most recent ascertainable dataperiod covered); and any other expenses of the operation and maintenance of the Property (including, without limitation, expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the unamortized portion thereof), shall all be prorated as of 12:01 a.m. on the date the Deed is recorded, on the basis of a 365-day year. Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and costs and free rent, as provided in Section 7.2. Any sums collected by Buyer from tenants after the Closing shall be deemed to apply to rents and other sums that were delinquent at Closing and shall be promptly paid to Seller, and the remainder shall be retained by Buyer to apply to current obligations. Buyer shall use reasonable efforts to collect such delinquent rents and Buyer shall be entitled to reimbursement for all reasonable actual costs incurred by Buyer in collecting such delinquent rents from the amounts collected therefor by Buyer. Seller retains the rights to collect any such delinquent rents from tenants after Closing. The Purchaser amount of any security deposits under tenant leases shall assume be credited against the Purchase Price. Security deposits in the form of letters of credit shall either be reissued in the name of Buyer at Closing, or Seller shall assign its rights therein to Buyer at Closing, and will reasonably cooperate with Buyer post Closing, at no expense to Seller, to facilitate the transfer to Buyer. Seller shall use reasonable efforts to cause all security deposits in the form of letters of credit to be amended or reissued in the name of Buyer as soon as possible after the Closing, and Buyer shall cooperate with Seller in such efforts. Upon delivery to Buyer of the reissued or amended letter of credit, Seller's obligations under with respect to such letter of credit shall immediately terminate, and, from and after such delivery of the Seller's existing real estate tax consulting agreements reissued or amended letter of credit, Buyer shall indemnify Seller and hold harmless and defend Seller from and against any and all claims, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of the letter of credit. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Properties, i.e., those agreements which Property. Seller has entered into with firms who are entitled shall use reasonable efforts to a commission based on services rendered and the extent to which they are able to achieve a reduction cause all security deposits in the real estate taxes otherwise payable forms of letters of credit or certificates of deposit to be amended or reissued in the name of Buyer as soon as possible after the Closing, and Buyer shall cooperate with respect to the PropertiesSeller in such efforts. The fees or commissions payable to said consultants (if any) It shall be treated as a portion of Buyer's responsibility to transfer utility service for the real estate tax liability to be pro-rated Property as of the Closing Date. All Buyer agrees to release, indemnify and hold Seller harmless from all claims, liability, costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as or expenses arising out of the Closing Date so that Seller shall be responsible for any costs associated therewith prior or relating to the Closing Date and Purchaser shall be responsible utility service for any costs associated therewith arising from and the Property after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser Seller shall be entitled to receive such delinquent rent attributable to credit for all deposits made by it with any company providing utility service. The indemnification obligation herein shall survive Closing. Seller reserves all right, title and interest in any refund obtained from any taxing authority as a tenant's occupancy result of a portion of the Real Property for any period pending tax appeal made by Seller prior to the date of Closing; provided, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisementhowever, Seller shall be entitled remit to a pro-rata credit Buyer, the proportionate share owed to tenants for amounts in excess of amounts previously paid by such portion of the cost of such listing and/or advertisement tenants attributable to the period after Closing.
(d) In of Seller's ownership of the event Property. Seller and Buyer hereby agree that if any third party (such as telephone company or billboard company) makes a separate charge for of the use of such listings or advertising subsequent to aforesaid prorations and credits cannot be calculated accurately on the Closing Date, then Purchaser the same shall be responsible to calculated as soon as reasonably practicable after the Closing Date, but no later than March 31, 2001, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay same subsequent said sum to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third other party).
(eB) Purchaser's temporary license set forth Seller shall pay one-half (1/2) of the escrow fee, any county transfer taxes applicable to the sale, and one-half (1/2) of any other transfer taxes applicable to the sale. Buyer shall pay the costs of obtaining the ALTA title insurance policy, the cost of any endorsements, one-half (1/2) of any transfer taxes applicable to the sale other than county transfer taxes and one-half (1/2) of the escrow fee. Recording charges and any other expenses of the escrow for the sale shall be paid by Buyer and Seller in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used accordance with customary practice as determined by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysTitle Company.
(fC) If Purchaser continues to use said logos or trade names beyond The provisions of this Section 8.5 shall survive the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ocwen Asset Investment Corp)
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will The following prorations shall be assigned to and assumed by made between Purchaser and credited Seller as of the date of Closing:
a. All rent and additional rent under the Leases of the Real Property (together the “Rent”) attributable to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously shall be the property of Seller, and all Rent attributable to the Closing Date and the period subsequent thereto shall be the property of Purchaser. If Rent for the month in which the Closing Date occurs has been paid by the tenants shall be credited either Tenant to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on Seller prior to the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas then such rent shall be prorated at Closing based on the most recent ascertainable data. property of Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against for all such Rent attributable to the Purchase Price for Seller's portion Closing Date and shall pay the entire utility bill after Closingperiod subsequent thereto. If Rent for the month in which the Closing Date occurs has not been paid by either Tenant to Seller h▇▇ ▇re-paid any prior to the Closing Date, then such utilities (so long as no more than rent shall be the property of Purchaser and Seller shall receive a credit for all such Rent attributable to the period prior to the Closing Date. Purchaser and Seller each agree to remit to the other, within thirty (30) days in advance in after receipt of same, all Rent received by them after the ordinary course Closing Date which is defined as the property of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts other party pursuant to the Purchaser's addressterms of this subparagraph, if such a procedure is possible which obligation shall expressly survive Closing hereunder.
b. Ad valorem taxes and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at assessments for the year of Closing for any utility deposits hereunder which are not payable by Tenants under the Seller has deposited with any utility company Leases (together the “Taxes”) and which will be assigned are attributable to the Purchaser at Closing. Assessments payable in installments which are due subsequent period prior to the Closing Date shall be paid by Purchaser. If the amount responsibility of any of the items to be prorated is not then ascertainableSeller, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements and such Taxes which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior attributable to the Closing Date and Purchaser the period subsequent thereto shall be responsible for any costs associated therewith arising from the responsibility of Purchaser, and after shall be prorated accordingly. The parties acknowledge that under the Closing Date. All prorations described in this Agreement (except prorations for TSA Lease, Seller is obligated to pay, on an annual basis, real and personal property taxes in the amount of $1,292,195.00 (the “Base Tax Amount”), which amount shall be deemed final as prorated on pro-rated among the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available parties at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions Government is obligated to pay all real property taxes in excess of the preceding sentence shall survive Base Tax Amount (by reimbursement thereof to Landlord under the Closing.
13.2. Rents which are delinquent as of the Closing Date TSA Lease), and such excess shall not be prorated. Insteadpro-rated at Closing, to the extent that Purchaser is able to collect said delinquencies, the Purchaser and shall be entitled to receive such delinquent rent attributable to a tenant's occupancy collected by Purchaser directly from the Government.
c. Purchaser and Seller agree that the payment process and status of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. all Seller may use whatever lawful means are available to maintenance costs or other Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises obligations under the pertinent Lease before the Closing Date Leases and said Lease is not all Service Contracts to be assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used shall be jointly reviewed by the Property which are parties immediately following the property Effective Date of an Affiliate of Seller, in place advertising, telephone directory listings and advertisementsthis Agreement, and telephone numbers, at each that based on such review Purchaser and Seller shall agree to the appropriate manner of proration of such items prior to expiration of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerDue Diligence Review Period.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Real Estate Purchase Contract (Commercial Net Lease Realty Inc)
Prorations. 13.1. Rents (exclusive The following items shall be prorated between Seller and Purchaser as of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in midnight of the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to day immediately preceding the Closing Date less any amount previously paid by the tenants shall be (as defined below) (with Purchaser being charged or credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on for the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities as applicable):
(so long as no more than thirty (30i) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing responsible for any utility deposits which the Seller has deposited with any utility company payment of all general real estate, personal property and which will be assigned ad valorem taxes due and payable prior to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainablegeneral real estate, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered personal property and the extent to which they are able to achieve a reduction in the real estate ad valorem taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so on an accrual basis such that Seller shall be responsible pay for any costs associated therewith all such taxes that become due and payable prior to the Closing Date, and shall provide a credit to Purchaser (based on One Hundred Five percent (105%) of the total of the taxes calculated using the most recent available assessed value, tax rate and equalization factor) for all such taxes that are attributable to the period prior to the Closing Date but which are not yet due or payable, and Purchaser shall be responsible for any costs associated therewith arising pay all such taxes that become due and payable from and after the Closing Date. All Tax prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on of Closing.
(ii) All charges for gas, electricity, sewer, trash, telephone, water and other utilities serving the Property shall be read and terminated as of midnight of the day prior to Closing whereupon Seller shall be responsible for and shall pay for all such charges first accruing or relating to the period prior to the Closing Date.
(iii) Both paid and unpaid charges under the Surviving Service Contracts (if any), including any one-time or bonus payments under any cable or telecommunications contracts.
(iv) Unless expressly provided otherwise herein, such other items that are customary prorated in a purchase and sale of the type contemplated hereunder shall be subject to post-closing adjustments prorated as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on of midnight of the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the immediately preceding sentence shall survive the Closing.
13.2. Rents which are delinquent (v) All amounts payable, owing or incurred in connection with the Property shall be prorated as of the Closing Date shall not be proratedDate. Instead, All sums due for such accounts payable which are attributable to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of ClosingClosing Date will be paid by Seller, free from any claim thereon by or if Seller has not received the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day bill or invoice therefor, or has received but not paid such bill or invoice, prior to the Closing Date, provided that at Purchaser’s election, Purchaser will either (i) furnish to Seller shall not agree to reduce rents for any period of time such bills or invoices received after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held for payment by Seller (if anyand Seller shall pay all other such bills or invoices received but not paid prior to Closing) and Purchaser will have no further obligation with respect thereto, or (ii) pay such bill or invoice on behalf of Seller and be entitled to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the reimbursement thereof by Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Sellerdemand.
(bvi) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller All prorations shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such final, except as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth expressly provided in this paragraph shall expire on the date(sSection 10(a) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Zoned Properties, Inc.)
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”):
(i) Utility charges payable by Seller, if any, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas a per diem adjustment shall be prorated at made for the days between the meter reading date and the Closing Date based on the most recent ascertainable datameter reading.
(ii) License fees and any other amounts payable under the AT&T Wireless License, if any.
(iii) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation.
(iv) Any unconfirmed assessments will be satisfied in full by Seller at Closing. Seller shall pay at Closing the bills therefor will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the ClosingProration Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Proration Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser The estimated Closing prorations shall be charged its portion of such payment at Closingset forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). No proration The Closing Statement, once agreed upon, shall be made for utility expenses that are separately metered to and paid directly signed by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date The prorations shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Date, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion basis of the real estate tax liability actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be pro-rated assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall , in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedutility bills. Seller will be entitled to all deposits presently in effect with the utility providers, however, that such prorations shall and Purchaser will be deemed final and not subject obligated to further post-closing adjustments at 5:00 PM Chicago time on make its own arrangements for any deposits with the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustmentutility providers. The provisions of the preceding sentence shall this Section 10.4(a) will survive the ClosingClosing for twelve (12) months.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Prorations. 13.1. Rents (exclusive a) Subject to the provisions of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits Exhibit E hereto the following shall be apportioned with respect to the Property:
(which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in i) real property taxes affecting the amount of 6% of prorated rents credited to Purchaser; real Realty and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by affecting the tenants Personalty for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably then current year, as of 11:59 p.m. on the Closing Date, and credited to the balance date of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion apportionment of such payment at Closing. No proration shall taxes with respect to a tax year for which either the tax rate or assessed valuation or both have not yet been fixed to be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on upon the basis of the most recent ascertainable data. The tax rate and/or assessed valuation last fixed; provided that Seller and Purchaser shall assume Seller's obligations agree that to the extent the actual taxes for the current year differ from the amount so apportioned at Closing, Seller and Purchaser will make all necessary adjustments by appropriate payments between themselves following Closing, such obligation to survive Closing;
(ii) current expenses under the Seller's existing real estate tax consulting agreements with respect to the PropertiesOperating Agreements; and
(iii) gas, i.e.electricity, those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered water, trash disposal and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants other utility charges.
(if anyb) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and In making such apportionments, Purchaser shall be responsible for any costs associated therewith arising real property taxes and other expenses accrued or incurred from and after the Closing Datedate of Closing. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) such apportionments shall be subject to post-closing Closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationsapportionments and the party receiving more than it was entitled to hereunder shall reimburse the other party hereto in the amount of such overpayment within thirty (30) days after receiving written demand therefor; providedprovided that the party hereto receiving such notice has received sufficient evidence to verify the amount of such overpayment. In the event such party has not received sufficient evidence to verify the amount of overpayment, howeversuch party shall be afforded additional time to verify and/or dispute the amount of overpayment, that but in no event longer than thirty (30) days after the notice. Notwithstanding the foregoing, such prorations apportionments shall be deemed final and not subject to further post-closing Closing adjustments at 5:00 PM Chicago time on the day which is thirty if no such adjustments have been requested after a period of sixty (3060) days following Closing, at which time all prorations after the Closing Date. All other matters with respect to apportionments shall be deemed final and not subject to further post-closing adjustmentgoverned by the Closing Memorandum. The provisions of the preceding sentence this Section 4.4(b) shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser Governmental assessments against the Realty shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can not be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof prorated, but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller assessments shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company paid in full by Seller at or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent prior to the Closing Date (but no if the work for which assessment was made has been fully performed, or assumed and paid by Purchaser if such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed work has not been fully performed by the Seller to said third party)Closing Date.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Dendrite International Inc)
Prorations. 13.1. Rents (exclusive of delinquent rentsSeller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing DateDate (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ClosingClosing Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Closing Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Such preliminary estimated Closing prorations shall be charged its portion of such payment at Closing. No proration shall set forth on a preliminary closing statement to be made for utility expenses that are separately metered to prepared by Seller and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable submitted to Purchaser and Seller. Seller for Purchaser’s approval (which approval shall not be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Time, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable databest evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect No prorations will be made in relation to insurance premiums (except to the Propertiesextent covered by the proration of Operating Expense Recoveries), i.e., those agreements which Seller has entered into with firms who are entitled and Seller’s insurance policies will not be assigned to a commission based on services rendered Purchaser. Final readings and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (final ▇▇▇▇▇▇▇▇ for utilities will be made if any) shall be treated as a portion of the real estate tax liability to be pro-rated possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedutility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, however, that such prorations and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be deemed final made by Purchaser and not subject to further post-closing adjustments at 5:00 PM Chicago time Seller on or before November 30, 2016 (herein, the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment“Final Proration Date”). The provisions of the preceding sentence shall this Section 10.4 will survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant Final Proration Date has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationoccurred, and in the event that Seller decides any items subject to place such a listing and/or advertisementproration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4. Notwithstanding anything to the contrary provided in this Agreement including, but not limited to, this Section 10.4(a), Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then and Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues hereby agree to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth abovefollowing, then Purchaser shall be liable estimated 2016 real estate taxes and assessments for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws purposes of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsproration of same at Closing: $110,000.00.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Preferred Apartment Communities Inc)
Prorations. 13.1. Rents (exclusive a) Real property taxes and assessments; water, sewer and utility charges; amounts payable under any Service Contracts or other agreements or documents assumed by Buyer in accordance with the terms and conditions of delinquent rents, but including prepaid rentsSection 7.2; annual permits and/or inspection fees (calculated on the basis of the period covered); and any other expenses of the maintenance of the Property (including, without limitation, expenses prepaid associations dues, refundable security deposits (by Seller and expenses already paid by Seller but which will be assigned are being amortized over time by Seller and with respect to and assumed by Purchaser and credited to Purchaser which Seller shall receive a credit at Closing); fuels; prepaid operating expenses; management fees Closing in the amount of 6% of the prepaid or unamortized portion thereof), shall all be prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately prior to Closing (i.e., Buyer is entitled to the income and responsible for the expenses of the day of Closing), on the basis of a 365-day year. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property if the utility companies agree, in writing, that such deposits shall be transferred to Buyer for its account. Buyer shall cause all utilities to be transferred into Buyer’s name and account at the time of Closing. To the extent Seller does not receive a credit for a deposit, Seller hereby retains the rights to such deposit and to pursue such amounts. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, then the same shall be calculated as soon as reasonably practicable after the Closing Date, and credited either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than other party within thirty (30) days in advance thereafter. Any amounts not paid within such thirty (30) day period shall bear interest from the date actually received by the payor until paid at the greater of (i) the rate of ten percent (10%) per annum or (ii) the prime rate (or base rate) reported from time to time in the ordinary course “Money Rates” column or section of business)The Wall Street Journal as being the base rate on corporate loans at larger United States money center commercial banks plus two (2) percent. Seller retains the right to pursue and control any pending tax appeals applicable to periods prior to the tax year of the Closing, then Purchaser and Buyer shall cooperate with Seller with respect to such appeals at no material cost or expense to Buyer. Any refund of real property taxes or special assessments relating to the period prior to Closing shall be charged its for the account of Seller. To the extent Buyer receives any such refund, Buyer shall remit such refund to Seller within five (5) business days of receipt thereof. Notwithstanding the foregoing, Buyer and Seller shall reasonably and jointly pursue and control any tax appeals applicable to the current tax year, and the parties shall prorate all costs incurred and recovered in connection therewith based on the portion of such payment at Closing. No proration the proceeds of any tax appeal recovery allocable to each party’s respective period of ownership of the Property.
(b) Except as provided in Article IV, Section 6.2 and Section 9.5 of this Agreement, (i) Buyer shall be made responsible for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermoreall survey costs, the Purchaser cost of any ALTA policy, title endorsements and the other title fees, and all escrow or closing fees, (ii) Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to responsible for the Purchaser at Closing. Assessments payable County documentary transfer tax, and (iii) all other costs and expenses not listed in installments which are due subsequent to the Closing Date subclauses (i) and (ii) above, shall be paid by Purchaser. If Buyer and Seller at Closing in accordance with prevailing local custom in the amount of any of city, county and state in which the items to be prorated Property is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable datalocated. The Purchaser shall assume Seller's obligations under the Seller's existing real estate parties will execute and deliver any required transfer or other similar tax consulting agreements with respect declarations to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants appropriate governmental entity at Closing.
(if anyc) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence this Section 8.5 shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenantsTenants' liability, if any, for such items), accrued interest under the Loan Documents for the month in which the Closing occurs; operating expenses which are reimbursable by the tenants Tenant for the period prior to the Closing Date less any amount previously paid by the tenants Tenant shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to against the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser Seller shall assume Seller's obligations receive a credit at Closing for any and all escrow or impound accounts held by any Lender Entities. All prorations will be final except as to delinquent rent referred to in Paragraph 13.2 below and except for mathematical errors or mutual mistakes.
13.2. All basic rent paid following the Closing Date by the Tenant of the Property who is indebted under the Seller's existing real estate tax consulting agreements with respect Lease for rent for any period prior to and including the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered Closing Date shall be first applied against the current rents due under the Lease and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants excess (if any) shall be treated deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a portion of the real estate tax liability Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to be proSeller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-rated as of Closing Receipts hereunder. Within 120 days after the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and , Purchaser shall be responsible for any costs associated therewith arising from and deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. All prorations described Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and the cost of performing Seller's audit. Paragraph 13.2 of this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at survive the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final delivery and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions recording of the preceding sentence shall survive deed. Any "percentage rent" (as that term is defined in Section 2.02 of the Closing.
13.2. Rents which are delinquent as of Lease) collected by Purchaser for periods prior to the Closing Date shall not be prorated. Insteadcharacterized as Post-Closing Receipts and, to the extent that Purchaser is able to collect said delinquenciescollected by Purchaser, shall remain the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to sole and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the exclusive property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the SellerPurchaser.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
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Prorations. 13.16.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents (exclusive and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned rents attributable to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period periods prior to the Closing Date less any amount previously paid Close of Escrow and which are collected by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Buyer or Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned retained by or paid to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations any amounts collected by Buyer or Seller shall be deemed final and not subject first applied to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closingany rents then due to Buyer and, at which time all prorations shall be deemed final and not subject if collected by Seller, remitted to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive Buyer for such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Sellerpurpose. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logospursue any Tenant for delinquent rent, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser but shall not use the existing logos (a) cause Tenant to be delinquent for their current rent or trade name on stationery, business cards, contracts become financially unstable or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If after Close of Escrow either party receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, the recipient shall promptly deliver a listing and/or advertisement copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow. All prorations shall be based on a 360- day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list all events, to the Purchaser's name and telephone numberprior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller may also place a listing and/or advertisement in such publicationagrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable any way related to the period after ClosingProperty.
(d) In the event 6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising parties and based on events occurring subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent Close of Escrow and which are in any way related to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)Property.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive The Escrow Agent shall deliver a draft closing statement showing all prorations and expenses of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned the transaction to Seller and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis least three (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period 3) days prior to the Closing Date less Close of Escrow. Taxes and assessments affecting the Property and any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited to the balance expenses of the cash due at Closing. Utilities, including water, sewer, electric, and gas Property shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the between Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings non-delinquent real estate taxes and any other prepaid advertisements assessments on the Property shall be prorated as of based on the actual current tax ▇▇▇▇, but if such tax ▇▇▇▇ has not yet been received by Seller by the Closing Date or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Seller shall be responsible for any costs associated therewith have borne all real property taxes, including all supplemental taxes, allocable to the period prior to the Closing Date and Purchaser shall bear all real property taxes, including all supplemental taxes, allocable to the period from and after the Closing. If any expenses attributable to the Property and allocable to the period prior to the Closing are discovered or billed after the Closing, the parties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Seller shall have borne all expenses allocable to the period prior to the Closing and Purchaser shall bear all expenses allocable to the period from and after the Closing (provided, however, that Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to postall pre-closing adjustments as necessary expenses related to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustmentApprovals). The provisions of the preceding sentence this Article 6 shall survive the Closing.
13.2, for a period of one (1) year. Rents which are delinquent as of the Closing Date All improvement and special liens and assessments shall not be prorated. Instead, to with Seller paying all amounts due for the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in Purchaser paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible all amounts due for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license period from and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (The Purchase Price set forth in Paragraph 3.0 is subject to the following adjustments and prorations:
9.1 Plus an amount which will credit SELLER for lease payments which have been paid in advance for time periods following Closing ("Prepaid Leases"), including those reflected on Exhibit 9.1.
9.2 Minus the amounts which will credit BUYER for the following:
9.2.1 Any lease payments for which BUYER becomes obligated relating to any period of time prior to Closing.
9.2.2 Any advertising services delivered after Closing for which SELLER has already billed or otherwise receives payment, including those reflected on Exhibit 9.2.2.
9.2.3 All items of income and expense listed below relating to the Assets will be assigned prorated as of the Closing Date, with SELLER liable to the extent such items relate to any time period up to and assumed by Purchaser including the Closing Date, and credited BUYER liable to Purchaser at Closing)the extent such items relate to periods on or subsequent to the Closing Date; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; including without limitation (a) personal property, real estate, occupancy and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilitywater taxes, if any, on or with respect to the Assets; (b) rent, taxes and other items payable by SELLER under any contract to be assigned to or assumed by BUYER; (c) the amount of sewer rents and charges for such items)water, telephone, electricity and other utilities and fuel; operating expenses and (d) all rentals that are or would be payable or have accrued pursuant to lease provisions requiring lease payments based in whole or in part upon a percentage of advertising revenue ("Percentage Leases") and which are reimbursable by the tenants for the period involve periods prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as (for purposes of 11:59 p.m. on the Closing Datethis Section 9.2.3, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount end of any such periods for accrual purposes); (e) all items paid or payable on or after the Closing Date under any obligation specifically assumed to the extent not specifically referenced in clauses (a) - (d) above) which are normally prorated in connection with similar transactions. A list of Percentage Leases with the date of expiration is attached as Exhibit 9.2.3;
9.2.4 If current payments with respect to items to be prorated is pursuant to this Section 9.2 are not then ascertainableascertainable on or before the Closing Date, the adjustments thereof such payments shall be prorated on the basis of the most recent recently ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered ▇▇▇▇ therefor and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of reprorated between SELLER and BUYER when the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing current bills with respect to such prorations; provided, however, that such prorations items have been issued and a cash settlement shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is made within thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closingafter notice by either party.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Outdoor Holdings Inc)
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”):
(i) Rental, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon. The amount of any cash Security Deposits held by Seller under Leases shall be credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits), and any Security Deposits in the form of letters of credit (collectively, the “Letters of Credit”) shall be transferred to Purchaser as set forth below. Within three (3) Business Days after the Closing Date, Seller shall (1) deliver to the issuers of the Letters of Credit the required transfer documents in order for the issuers to process a change in the beneficiary and pay (or cause the Tenant to pay) any required transfer fee, with copies provided to Purchaser, or (2) if a Letter of Credit is not transferrable by its terms, insert in the Tenant Notice Letter to the respective Tenant demanding such Tenant to either deliver a replacement cash or letter of credit security deposit to Purchaser for the requisite security deposit pursuant to the terms and conditions of the applicable Lease, and Seller shall return such Letter of Credit to the issuer at such time Purchaser confirms to Seller that such replacement cash or letter of credit security deposit was delivered to Purchaser. To the extent a required transfer fee for which a Tenant is responsible under its Lease is paid by Seller, Purchaser shall ▇▇▇▇ the Tenant and use commercially reasonable efforts to seek to collect such amounts on behalf of Seller after Closing; it being understood and agreed that Purchaser shall have no obligation to commence any legal action against any Tenant. To the extent that any Letter of Credit is not transferred to Purchaser at Closing, or the documents delivered to effect such transfer are not accepted by the issuer thereof, Seller shall, at Purchaser’s request and with Purchaser’s cooperation, reasonably cooperate with Purchaser as Purchaser shall reasonably request to effect such transfer. For any Letter of Credit to be transferred after Closing, until such transfer is effected: (A) at Purchaser’s instruction upon a Tenant default, Seller will draw upon the Letter of Credit and pay the proceeds to Purchaser; and (B) under no circumstances will Seller draw upon the Letter of Credit without written authorization from Purchaser. Seller agrees that after the expiration of the Evaluation Period it will not pursue any eviction action or initiate any litigation against any Tenants or apply or draw on any Security Deposits of any Tenants against the payment of rent or other default of a Tenant; provided that Seller shall give prompt notice to Purchaser for any such application or draw of Security Deposits prior to the expiration of the Evaluation Period. Seller’s and Purchaser’s obligations under this Section 10.4(a)(ii) shall survive Closing.
(iii) Reserved.
(iv) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas a per diem adjustment shall be prorated at made for the days between the meter reading date and the Closing Date based on the most recent ascertainable datameter reading. Seller shall pay at Closing the bills therefor for the period to Final readings and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hfinal ▇▇▇▇▇▇▇▇ ▇re-paid any such for utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall will be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall , in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers.
(v) Real estate taxes and assessments due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes and assessments shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes and assessments (by reason of change in either assessment or rate or for any other reason other than as a result of the final determination or settlement of any tax appeal) for the Real Property and/or Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such prorationsrecomputation and vice versa; provided, however, that if any increase in the assessed value of the Real Property and/or Improvements results from improvements made to the Property by Purchaser, then Purchaser shall be solely responsible for any increase in taxes attributable thereto. With respect to tax appeals, any tax refunds or credits attributable to tax years prior to the tax year in which the Closing occurs shall belong solely to Seller, regardless of whether such refunds are paid or credits are given before or after Closing. Any tax refunds or credits attributable to the tax year in which the Closing occurs shall be apportioned between Seller and Purchaser based on their respective periods of ownership in such tax year, but only after giving effect to any tax exemption that may otherwise be available to Purchaser post-Closing. For example, if the Purchaser is totally exempt from the payment of real estate taxes post-Closing, then Purchaser would not share in any portion of the refund or credit. If, however, the Purchaser is only partially exempt, then the apportionment shall be based on each party’s respective percentage of the total real estate tax obligations of the Property for such tax year. The expenses of any tax appeals for the period in which the Closing occurs shall be apportioned between the parties in the same manner as the refunds and/or credits. The provisions of this Section 10.4(a)(v) shall survive the Closing.
(vi) The value of fuel stored at the Real Property, at Seller’s most recent cost, including taxes, on the basis of a reading made within ten (10) days prior to the Closing by Seller’s supplier.
(vii) Rents and other charges payable under the Ground Lease.
(viii) Common charges, assessments, and other charges and expenses with respect to the Condominium due and payable pursuant to the Condominium Documents for the month in which the Closing occurs.
(ix) Charges, assessments and fees due and payable, if any, pursuant to the applicable Association Documents for the month in which the Closing occurs.
(x) Amounts payable under the Service Contracts. For avoidance of doubt, Purchaser shall be responsible for amounts payable during any post-Closing “tail period” under any Service Contracts which are being terminated by a Service Contract Termination Notice.
(xi) If at the time of Closing, the Real Property is affected by an assessment or assessments that are or may become payable in installments, the assessments payable on the date of or after Closing shall be payable by Purchaser, and the assessments payable prior to Closing shall be paid by Seller at or prior to Closing and any such payments by Seller or Purchaser shall be apportioned at Closing based on the customary rules and protocols of the location of each Property.
(xii) Such other items that are customarily prorated in transactions of this nature shall be ratably prorated in accordance with the customary rules and protocols of the location of each Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be deemed final set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser and Escrow Agent for review prior to the Closing Date (the “Preliminary Closing Statement”). The Preliminary Closing Statement, once finalized, shall be signed by Purchaser, Seller and Escrow Agent, and shall be the “Closing Statement” for the transaction. The Closing Statement may be delivered electronically. The prorations shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not subject to further post-closing adjustments known as of the Closing Date, the prorations will be made at 5:00 PM Chicago time Closing on the day which basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be assigned to Purchaser. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months; provided, however, that the provisions of Section 10.4(a)(v) shall survive until the date that is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions Purchaser’s receipt of the preceding sentence shall survive final tax ▇▇▇▇ or the Closingresolution of any tax appeal, whichever is later, with respect to each Property.
13.2. Rents which are delinquent (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing Date and Purchaser shall not be proratedapply such Rental as set forth below. Instead“Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent that Purchaser is able to collect said delinquenciesthe same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, vending machine receipts and other sums and charges payable by Tenants under the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion Leases or from other occupants or users of the Real Property for any period prior to the date of Closing, free from any claim thereon by the SellerProperty. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day Rental is “Delinquent” when it was due prior to the Closing Date, provided that Seller shall and payment thereof has not agree been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to reduce rents for any period of time use good faith collection procedures during the first twelve (12) full calendar months after Closing in order with respect to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent Delinquent Rental, but Purchaser will have no liability for the failure to collect any period prior such amounts and will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by any Tenant. All sums collected by Purchaser from and after Closing unless from Seller and/or each Tenant in respect of Delinquent Rental, Operating Expenses, or tenant ▇▇▇▇▇▇▇▇ for work orders, special items performed or provided at the tenant has vacated request of a Tenant or other specific services, will be applied (i) first, to amounts which are then due and payable in connection with the premises under the pertinent Lease before month in which the Closing Date occurred, (ii) second, to amounts which are then due and said Lease is not assigned payable in connection with the month or months following Closing, and (iii) third, to amounts which are then due and payable in connection with the Purchasermonth or months preceding Closing. Furthermore, the Any sums due Seller shall not have will be promptly remitted to Seller. Seller reserves the right to retain ▇▇▇▇ and collect from Tenants any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent Delinquent Rental for periods prior to Closing, even though the tenant is delinquent but may not pursue any eviction actions or initiate any litigation in paying rent as pursuit of such Delinquent Rents. The provisions of this Section 10.4(b) will survive the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do sotwelve (12) months, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date preceding sentence of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rightsSection 10.4(b) shall have all legal and equitable remedies authorized by federal law or the laws of the state where survive Closing without such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws12-month limitation.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 13.112.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); interest on and any fees including, without limitation, credit enhancement, issuer or trustee fees respecting the Bonds; water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellertaxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day prior to the Closing Date, and credited to against the balance of the cash due at Closing. UtilitiesTo the extent any escrows or bond repayment deposits for taxes and insurance established in connection with the Bonds or Existing Bond and Mortgage Documents are not refunded to Seller at Closing, including water, sewer, electric, and gas the proceeds in said escrows shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period assigned to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller amounts thereof shall be reimbursed a credit to Seller at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect All prorations will be final except as to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled delinquent rent referred to a commission based on services rendered in Paragraph 12.2 below and the extent to which they are able to achieve a reduction in the except for real estate taxes otherwise payable with respect to which will be reprorated upon receipt of actual bills. If any unit has remained vacant for more than 9 days without being made "rent ready", Seller will give Purchaser a credit of $250 for such unit for cleaning, painting touch-up, carpet shampoo and minor appliance repair. If such a unit requires carpet replacement or other renovation not covered by the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion preceding sentence, Purchaser and Seller will agree on the amount of the real estate tax liability credit to be pro-rated Purchaser. If Seller receives a credit for a utility deposit, Seller shall execute an assignment thereof substantially in the form attached as Exhibit N.
12.2. All monies received after Closing by Purchaser from any tenant of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible Property who is indebted under a lease for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of Closingsuch monies to current rent shall be deemed a "Post-Closing Receipt", free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior but only to the Closing Date, provided that Seller shall extent such pre-closing indebtedness has not agree to reduce rents for any period of time after Closing been paid in order to induce any tenants to pay delinquent rentsfull. Seller shall not have the right subsequent to Closing to seek Within ten (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (18010) days subsequent to the date when the public telephone directory pertaining to following each Property is published subsequent to the receipt by Purchaser of a Post-Closing Date. During such periodReceipt, Purchaser shall have the right pay such Post-Closing Receipt to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 hereinSeller. Purchaser shall not use the existing logos or trade name on stationerygood faith efforts to collect all amounts which, business cardsupon collection, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovewould constitute Post-Closing Receipts hereunder. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs Within 120 days after the date hereof but before the Closing Date, Purchaser shall have deliver to Seller a reconciliation statement of Post-Closing Receipts through the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period first 90 days after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, then Purchaser shall be responsible deliver to pay same subsequent Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Paragraph 12.2 of this Agreement shall survive the Closing Date (but no such payment shall accrue to and the benefit delivery and recording of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)Deed.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (The Purchase Price set forth in Section 4 is subject to the following adjustments and prorations.
10.1 Plus an amount which will credit SELLER for lease payments which have been paid in advance for time periods following Closing ("Prepaid Leases").
10.2 Minus the amounts which will credit BUYER for the following:
10.2.1 Any lease payments for which BUYER becomes obligated relating to any period of time prior to Closing.
10.2.2 Any advertising services delivered after Closing for which SELLER has already billed or otherwise receives payment.
10.2.3 All items of income and expense listed below relating to the Assets will be assigned prorated as of the Closing Date, with SELLER liable to the extent such items relate to any time period up to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on including the Closing Date, and credited BUYER liable to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based extent such items relate to periods on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods or subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's addressClosing Date; including without limitation (a) personal property, real estate, occupancy and water taxes, if such a procedure is possible any, on or with respect to the Assets; (b) rents, taxes and convenient and mutually acceptable other items payable by SELLER under any contract to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to or assumed by BUYER; (c) the Purchaser at Closing. Assessments amount of sewer rents and charges for water, telephone, electricity and other utilities and fuel; (d) all rentals that are or would be payable in installments which are due subsequent or have accrued pursuant to "percentage rental" lease provisions with respect to periods after the Closing Date (for purposes of this Section 10.2.3, the Closing Date shall be paid by Purchaser. If the amount end of any such periods for accrual purposes); and (e) all items paid or payable on or after the Closing Date under any obligation specifically assumed to the extent not specifically referenced in clauses (a) - (d) above which are normally prorated in connection with similar transactions. A list of percentage leases with the date of expiration is attached hereto as Exhibit 10.2.3;
10.2.4 If current payments with respect to items to be prorated is pursuant to this Section 10.2 are not then ascertainableascertainable on or before the Closing Date, the adjustments thereof such payments shall be prorated on the basis of the most recent recently ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered ▇▇▇▇ therefor and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of reprorated between SELLER and BUYER when the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing current bills with respect to such prorations; provided, however, that such prorations items have been issued and a cash settlement shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is made within thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closingthereafter.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Prorations. 13.1. Rents (exclusive A) Rents, including, without limitation, percentage rents, if any, and any additional charges and expenses payable by tenants under Leases, all as and when actually collected; real property taxes and assessments due and payable in the year in which the Closing occurs (without regard to the date levied, assessed or accrued and without regard to any fiscal year) (provided there shall be no proration of delinquent rents, but including prepaid rentsrents to Seller until such delinquent rents are collected); prepaid associations dueswater, refundable security deposits sewer and utility charges; amounts payable under any Service Contracts or other agreements or documents; annual permits and/or inspection fees (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closingcalculated on the basis of the period covered); fuelsmaintenance charges and amounts payable under reciprocal easement agreements and other recorded documents; vending machine and paper recycling income; and any other income and expenses of the operation and maintenance of the Property (including, without limitation, expenses prepaid operating expenses; management fees by Seller and expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of 6% of the prepaid or unamortized portion thereof), shall all be prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately prior to Closing Date(i.e., and credited Buyer is entitled to the balance income and responsible for the expenses of the cash due at day of Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro365-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorationsday year; provided, however, that such prorations shall be deemed final and not subject any real estate taxes payable directly by tenants to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the governing taxing authorities or reimbursable by tenants after Closing Date shall not be prorated. InsteadBuyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions, as provided in Section 7.2. All rents and other sums collected after the Closing shall be applied and paid as provided in this Section 8.5(a). If a tenant or other payor shall specifically designate a payment as being attributable to, or if it is readily ascertainable that a payment received from a tenant or other payor is attributable to a specific period of time or for a specific purpose, including, without limitation, for operating expenses or real estate tax payments which were not paid or were underpaid by such tenant or for reimbursement for work performed by Seller on the tenant's premises, such payment shall be so applied. If there is no such designation or if not so readily ascertainable, any payment received after Closing shall be deemed a payment due after the Closing until the tenant or other payor is current in its post-Closing obligations, and then such payments shall be paid to Seller to the extent that Purchaser is able of any rent or other sums owing to Seller for periods prior to Closing. Buyer shall use reasonable efforts to collect said delinquenciessuch rents and other sums owing to Seller but shall not be required to initiate litigation or terminate any lease. Seller retains the right to collect any such rents and other sums from tenants and other payors after Closing; provided, however, that Seller shall have no right to evict any tenant or to exercise any other landlord-tenant remedy other than to sue for collection. Without intending to limit the generality of the ▇▇▇egoing, Buyer and Seller acknowledge and agree that certain rental payments by the tenants are collected monthly in arrears and, upon receipt of such payments after Closing, such sums shall be applied toward the period to which they properly pertain, and shall be prorated between Seller and Buyer, with the party receiving same promptly paying to the other party such other party's share thereof. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the calendar year in which the Closing occurs shall be prepared by Buyer with the cooperation of Seller within ninety (90) days following the end of such year in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(a). For those Leases in which tenants pay a proportionate share of taxes, insurance charges or other expenses over a base year amount or expense stop, the Purchaser proration between the parties of the income received from tenants over such base year amount or expense stop shall be entitled calculated based on the total amount of such expenses for the Property incurred by both Seller and Buyer for the entire calendar year, rather than on the amount of such expenses actually incurred by each party for such year, in order to receive enable the parties to determine if the base year amount or expense stop for such delinquent rent attributable to year is exceeded. Such income as so calculated shall be prorated between the parties based on the number of days each party owned the Property during such year and otherwise in accordance with this Section 8.5(a). Buyer shall promptly reimburse Seller for Seller's prorated share of all expenses that are prepaid by Seller before Closing for which Buyer receives reimbursement from a tenant's occupancy third party after Closing. The amount of a portion of the Real Property for any period cash security deposits held by Seller under Leases (plus any interest thereon accrued prior to the date of Closing, free from any claim thereon if required by law or contract) shall be credited against the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to Purchase Price (and until the day prior to the Closing Date, provided that Seller shall not agree be entitled to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rentsretain such cash security deposits). Seller shall not have receive credits at Closing for the right subsequent to Closing to seek (by legal action or otherwise) the collection amount of any rents delinquent utility or other deposits with respect to the Property to the extent such deposits are assignable to Buyer and are so assigned or credited to Buyer at Closing. Buyer shall cause all utilities to be transferred into Buyer's name and account at the time of Closing. At Closing, Seller shall transfer to Buyer all non-cash security deposits and deliver to Buyer all necessary consents to such transfers (or as soon as reasonably practicable after Closing, if the procedures for such transfer reasonably require a delay in transfer until after the Closing). Between the date of Closing and until such transfer takes place, Seller agrees to hold any period prior to Closing unless such non-cash security deposit for the tenant has vacated benefit of Buyer. Seller and Buyer hereby agree that if any of the premises under the pertinent Lease before aforesaid prorations and credits cannot be calculated accurately on the Closing Date and said Lease is or in the case of rents or other charges that are paid in arrears or are otherwise not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent yet ascertainable or payable as of the Closing Date.
13.3. To , then the extent it is same shall be calculated as soon as reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on practicable after the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall expire on pay said sum to the day which is one hundred eighty other party within thirty (18030) days subsequent thereafter. Any amounts not paid within such thirty (30) day period shall bear interest from the date actually received by the payor until paid at the greater of (i) the rate of ten percent (10%) per annum or (ii) the prime rate (or base rate) reported from time to time in the "Money Rates" column or section of THE WALL STREET JOURNAL as being the base rate on corporate loans at larger United States money center commercial banks plus two (2) percent. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the date when the public telephone directory pertaining to each Property is published subsequent payments received by such party from tenants and other payors from and after Closing and to the Closing Date. During manner in which such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documentspayments were applied, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice. Any tax refund received by Buyer or Seller after Closing (net of third party costs incurred in obtaining such refund) shall be paid to the party(ies) who previously paid or were responsible for such taxes, whether it be Seller.
(b) The Seller stipulates that there is full and adequate consideration for , Buyer, or tenants under the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationLeases, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after prorated appropriately. The preceding sentence shall survive Closing.
(dB) In The cost of the event owner's policy of title insurance and all other title charges (including the cost of any third party extended coverage, endorsements and reinsurance or co-insurance charges) and the cost of the Survey shall be paid one-half by Seller and one-half by Buyer. Seller and Buyer shall each pay one-half of the state deed tax in connection with recording the deed and all recording fees. Any closing escrow fees and other closing charges of the Title Company shall be split equally between Seller and Buyer. Buyer shall be solely responsible for any and all costs and expenses pertaining to its financing of the Property (such as telephone company although Buyer obtaining any financing is not a condition to its obligations hereunder), including, without limitation, loan title policies, lender's escrow and closing fees and all intangibles and mortgage taxes. The parties will execute and deliver any required transfer or billboard company) makes a separate charge for the use of such listings or advertising subsequent other similar tax declarations to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)appropriate governmental entity at Closing.
(eC) Purchaser's temporary license set forth The total annual percentage rent payable under each Lease for the lease year in this paragraph which the Closing occurs shall expire be prorated between Seller and Buyer based solely on the date(s) set forth above. If Purchaser continues to use the name currently being used by respective number of days of ownership of the Property subsequent to by Seller and Buyer during such year, regardless of what portion of sales occur during the expiration date different parts of this temporary license set forth abovesuch year. At Closing, then Purchaser the parties shall be liable estimate the total percentage rent payable under each Lease for the applicable lease year based on the percentage rent paid under such Lease for the prior year, and Seller shall pay to receive a credit at Closing for its prorata share thereof. Once the owner final amount of said rights a license fee equal to One Hundred Dollars percentage rent is determined, the parties shall reprorate, and the party owing the other shall promptly remit the amount owed no later than fifteen ($100.0015) for each day days after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysreproration is determined.
(fD) If Purchaser continues to use said logos or trade names beyond The provisions of this Section 8.5 shall survive the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Prorations. 13.1(a) Rents and any additional operating expenses payable under the Lease shall be prorated as of 12:01 a.m. on April 1, 2000 (the "Proration Date"), with Seller being responsible for such amounts accruing prior to the Proration Date and Buyer being responsible for the amounts accruing on or after the Proration Date. Rents (exclusive of delinquent rentsNotwithstanding the foregoing, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser Seller shall receive a credit at Closing); fuels; prepaid operating expenses; management fees the Closing in the amount of 6% of prorated rents credited to Purchaser; real the Monthly Base Rent (as defined in the Lease), Real Property Taxes (as defined in the Lease), and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by due under the tenants Lease for the period prior each day on and after April 1, 2000 and up to the Closing Date less any amount (to the extent such amounts have previously been paid by Seller to KREG or Kilr▇▇) ▇▇d Buyer shall be responsible for paying the tenants Monthly Base Rent, Real Property Taxes, and operating expenses due under the Lease for each day on and after April 1, 2000 and up to the Closing Date directly to KREG or Kilr▇▇ (▇▇ the extent such amounts have not previously been paid by Seller to KREG or Kilr▇▇, ▇▇cluding, without limitation, Monthly Base Rent for the month of April). The amount of the security deposit under the MPower Sublease shall be credited to Seller; Buyer at the Closing, in addition to the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property. Buyer shall cause all utilities to be transferred into Buyer's name and other similar items account at the time of Closing. Buyer is responsible for the payment of all leasing commissions in connection with the MPower Sublease and iXL Sublease. Buyer shall reimburse Seller at Closing for certain tenant improvement costs and building system costs in connection with the tenant improvement work for MPower and iXL in the amount and as more fully set forth on SCHEDULE 2 attached hereto and made a part hereof. Buyer and Seller hereby agree that if any of the aforesaid prorations and credits cannot be adjusted ratably as of 11:59 p.m. calculated accurately on the Closing Date, then the same shall be calculated as soon as reasonably practicable after the Closing Date and credited either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay said sum to the balance of other party. Without limiting the cash due at Closing. Utilitiesforegoing, including waterSeller shall remain liable for all monetary obligations under the Lease, sewer, electric, MPower Sublease and gas shall be prorated at Closing based on iXL Sublease which accrued prior to the most recent ascertainable data. Proration Date.
(b) Seller shall pay at Closing one-half (1/2) of the bills therefor for the period to and including the Closing, escrow fee and the Purchaser costs of obtaining the CLTA portion of the Title Policy. Buyer shall pay the utility bills therefor for all periods subsequent thereto. If costs of obtaining the utility company will not issue separate billsALTA portion of the Title Policy, the Purchaser shall receive a credit against cost of any endorsements and one-half (1/2) of the Purchase Price escrow fee. Any other expenses of the escrow for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date sale shall be paid by Purchaser. If Buyer and Seller in accordance with customary practice as determined by the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants Title Company.
(if anyc) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence this Section 6.4 shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Buy Out of Leasehold Interest (Natural Alternatives International Inc)
Prorations. 13.1. Rents (exclusive of delinquent rentsSeller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing DateDate (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ClosingClosing Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Closing Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Such preliminary estimated Closing prorations shall be charged its portion of such payment at Closing. No proration shall set forth on a preliminary closing statement to be made for utility expenses that are separately metered to prepared by Seller and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable submitted to Purchaser and Seller. Seller for Purchaser’s approval (which approval shall not be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Time, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable databest evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect No prorations will be made in relation to insurance premiums (except to the Propertiesextent covered by the proration of Operating Expense Recoveries), i.e., those agreements which Seller has entered into with firms who are entitled and Seller’s insurance policies will not be assigned to a commission based on services rendered Purchaser. Final readings and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (final ▇▇▇▇▇▇▇▇ for utilities will be made if any) shall be treated as a portion of the real estate tax liability to be pro-rated possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; providedutility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, however, that such prorations and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be deemed final made by Purchaser and not subject to further post-closing adjustments at 5:00 PM Chicago time Seller on or before November 30, 2016 (herein, the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment“Final Proration Date”). The provisions of the preceding sentence shall this Section 10.4 will survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant Final Proration Date has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publicationoccurred, and in the event that Seller decides any items subject to place such a listing and/or advertisementproration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4. Notwithstanding anything to the contrary provided in this Agreement including, but not limited to, this Section 10.4(a), Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then and Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues hereby agree to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth abovefollowing, then Purchaser shall be liable estimated 2016 real estate taxes and assessments for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws purposes of the state where such proration of same 38 at Closing: (x) $1,452,200.00 for the Champions Village Real Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsand the Champions Village Improvements and (y) $178,200.00 for the Oak Park Real Property and the Oak Park Improvements.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 13.1. Rents (exclusive of delinquent rentsAll normal and customarily proratable items, but including prepaid rents); prepaid associations dueswithout limitation, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real estate and personal property taxes prorated on a "net" basis and assessments, utility bills (i.e. adjusted for all tenants' liabilityexcept as hereinafter provided), if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; collected rents and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Dateincome, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities Operating Contract payments (so long as no more than thirty (30) days in advance in the ordinary course of businessunder Operating Contracts assumed by Buyer), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Date, Seller shall be responsible being charged and credited for any costs associated therewith prior all of the same relating to the period up to the Closing Date and Purchaser shall be responsible Buyer being charged and credited for any costs associated therewith arising from all of the same relating to the period on and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which If the amount of any such item is not known at the time of the delivery of the Deed, such item shall be deemed final as prorated apportioned on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at basis of the Closing and to correct any errors made at comparable period of the Closing prior year with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is a reapportionment within thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be proratedor as soon thereafter as the amount of the item is actually determined. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser No proration shall be entitled made in relation to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek , common area expense charges or tax payments (by legal action or otherwisecollectively, “Delinquent Rents”) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermoreexisting, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible that such Delinquent Rents or reimbursement obligations are paid or payable after Closing, Buyer agrees to use reasonable efforts to secure said Delinquent Rents and reimbursements from the tenants (with no obligation, however, to incur any additional out-of-pocket costs with respect thereto) and as soon as the same are received by Buyer, said receipts shall be applied first to any amounts expended by Buyer to secure Delinquent Rents, then to the rents owed by such tenant for any period after Closing, then to the rents owed by such tenant for the month of the Closing, and then to Delinquent Rents. Seller reserves the right to do so, bring suit against tenants of the Property to collect for Delinquent Rent (and other charges due to Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant period prior to the following terms and conditions:
(aClosing) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days but Seller may not, subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such periodhereof, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration bring suit for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion possession of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized premises occupied by such lawstenants.
Appears in 1 contract
Sources: Purchase and Sale Contract (New England Realty Associates Limited Partnership)
Prorations. 13.1. Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to 15.1 Water and assumed by Purchaser and credited to Purchaser at Closing)other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilityliabilities, if any, for such items); tenant reimbursement obligations for operating expenses which are reimbursable paid by Seller for the period prior to the Closing Date, less any amount previously paid by the tenants tenants; unpaid operating expenses for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Sellerprorated on a "net" basis, as set forth above; and all other similar items of expense and income shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the Closing Date ("Proration Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business"), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing entitled to a credit for any all transferable utility deposits which the Seller has deposited with any utility company and which will be assigned to the extent actually transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser at Closingshall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due prior to the Closing Date shall be paid by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing If any ongoing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller contest has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the conte▇▇, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it related to the real estate tax proration to the extent such tax contest is successful. All costs associated other prorations will be final except as to delinquent rent referred to in Paragraph 15.2 below and as provided in Paragraph 15.3. Purchaser shall be credited and Seller will be charged with telephone directory listings an amount equal to all Tenant security deposits and any interest thereon being held by Seller or Seller's managing agent. Seller shall be entitled to retain all Tenant security deposits, interest thereon, or other prepaid advertisements such credit due Tenants for which Purchaser receives credit and Seller is charged pursuant to this Paragraph. Seller and Purchaser agree to cooperate in the calculation and reporting of all closing prorations at least two (2) business days prior to the Closing Date.
15.2 All basic rent collected by Seller shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.12.01 a.m.
Appears in 1 contract
Sources: Sale Agreement (Balcor Equity Pension Investors Ii)
Prorations. 13.1. Rents 5.4.1 The following shall be prorated between Seller and Purchaser as of 12:01 a.m. on the Closing Date (exclusive on the basis of delinquent the actual number of days elapsed over the applicable period regardless when payable):
(a) All real estate taxes, water charges, sewer rents, but including vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges if, as and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rents); prepaid associations dues, rentals for periods after the Closing Date and all refundable cash security deposits (which will be assigned to the extent the foregoing were made by tenants under the Leases and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period not applied or forfeited prior to the Closing Date less any amount previously paid by the tenants shall be credited Date) to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. Purchaser on the Closing Date. As to any tenant security deposits held in the form of letters of credit or other financial instruments (the “Non-Cash Security Deposits”), Seller shall (i) deliver to Purchaser at Closing such original Non-Cash Security Deposits, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, (ii) execute and gas shall be prorated deliver at Closing based such other instruments as the issuer of such Non-Cash Security Deposits shall reasonably require in order to cause the named beneficiary under such Non-Cash Security Deposits to be changed to Purchaser; provided that such instruments do not impose any liability on the most recent ascertainable dataSeller. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇reNon-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2Cash Security Deposits. Rents which are delinquent as of the Closing Date shall not be proratedprorated on the Closing Date. Instead, Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to receives rents on or after the Closing Date, provided such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents that shall then be due and payable to Purchaser, and third to any delinquent rents owed to Seller, with Seller’s share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser. Purchaser 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, which consent may be given or withheld in Seller’s sole and absolute discretion. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant; provided, however, that Seller shall not agree be entitled to reduce rents for any exercise such right until the expiration of the six (6) month period following the Closing. Delivery of time after Closing in order to induce any tenants to pay delinquent rents. Seller the Assignment and Assumption of Leases shall not have constitute a waiver by Seller of such right, and such right shall survive the right subsequent Closing. Purchaser shall ▇▇▇▇ and attempt to Closing collect such delinquent rent in the ordinary course of business, but shall not be obligated to seek (by engage a collection agency or take legal action to collect any delinquencies. With respect to delinquent rents and any other amounts or otherwise) the collection other rights of any rents delinquent for any period prior to Closing unless kind respecting tenants who are no longer tenants of the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent Property as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used retain all rights relating thereto. Any rents received by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant Seller applicable to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on period after the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent be promptly remitted to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein grantedPurchaser.
(c) If any tenant of the Property is obligated to pay percentage rent based upon the calendar year or lease year in which the Closing Date occurs (the “Percentage Rent Year”), Purchaser shall, within thirty (30) days after receipt of such payment with respect to the Percentage Rent Year, remit to Seller that portion which is equal to the number of days which elapsed between the commencement date of the Percentage Rent Year for each such tenant and the Closing Date, divided by the total number of days in such Percentage Rent Year. If Seller has received payments of percentage rent based on any Percentage Rent Year in which the date of Closing occurs, in excess of Seller’s share as calculated as set forth above in this Section 5.4.1(c), it shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified abovepromptly pay such excess to Purchaser. In the event that the publication close date Leases require the reconciliation of additional rent “pass-throughs” to the landlord for any publication in which common area maintenance charges, real estate taxes or other operating expenses (collectively, the “Expenses”), Purchaser shall perform all of the obligations of the landlord under the Leases with respect to such reconciliations for the year of Closing as and when required by the terms of the Leases and provide Seller currently has a telephone directory listing and/or advertisement occurs after with the date hereof but before results of such reconciliations no later March 31st of the calendar year succeeding the Closing Date. If such results reflect the underpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall have ▇▇▇▇ the right appropriate amounts to place a listing and/or advertisement such tenants in accordance with the terms of their leases and remit to Seller its prorata share of the amount collected from the tenants within thirty (30) days of Purchaser’s collection of the same. If such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list results reflect the Purchaser's name and telephone numberoverpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall deliver to Seller an invoice from Purchaser together with evidence reasonably satisfactory to Seller indicating that such sums are due to such tenants. Seller may also place shall pay Purchaser Seller’s prorata share of the amounts due to such tenants within thirty (30) days of Purchaser’s demand, provided that Seller shall have no obligation to reimburse Purchaser for any sums not invoiced on or before July 1st of the calendar year succeeding the Closing Date. Notwithstanding the foregoing, if, as of the Closing, Seller has received additional rent payments in excess of the amount that the tenants would be required to pay, based on the actual Expenses as of the Closing, Purchaser shall receive a listing and/or advertisement in such publication, and credit in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost amount of such listing and/or advertisement attributable to excess. The provisions of this Section 5.4.2(c) shall survive the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use All operating expenses customarily apportioned between sellers and purchasers of such listings or advertising subsequent real estate properties similar to the Closing Date, then Purchaser shall be responsible to pay Property and located in the same subsequent to geographic area as the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party)Property.
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Charges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser continues to use the name currently being used by the Property subsequent pursuant to the expiration date Assignment and Assumption of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional daysContracts.
(f) If Any prepaid items, including, without limitation, fees for licenses which are transferred to Purchaser continues at the Closing and annual permit and inspection fees.
(g) Utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to use said logos adjustment after the Closing when the next bills are available, or trade names beyond if current meter readings are available, on the period allowed above basis of such readings.
(h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assignable and are assigned to Purchaser at the Closing, which shall be credited in their entirety to Seller.
(i) Personal property taxes, if any, on the basis of the fiscal year for which assessed.
(j) Permitted administrative charges, if any, on those tenants’ security deposits transferred by Seller pursuant to the Assignment and Assumption of Leases.
(k) Taxes payable by Seller relating to operations of the Property, including, without limitation, business and occupancy taxes and sales taxes, if any.
(l) Such other items as are customarily apportioned between sellers and purchasers of real properties of a temporary license has been grantedtype similar to the Property and located in the same geographic area as the Property subject to Section 7.2.3(a) hereof.
(a) Intentionally deleted.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, then or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that (i) with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one hundred eightieth (180th) day after the Closing Date and (ii) with respect to the items required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one (1) year anniversary of the Closing Date. If the Closing shall occur before a real estate or personal property tax rate or assessment is fixed for the tax year in which the Closing occurs, the apportionment of taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing.
5.4.3 Items to be prorated at the Closing shall include a credit to Seller for costs and expenses incurred by Seller in connection with any new Leases or modifications to any existing Leases entered into after the date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of this Agreement, but only to the extent such costs and expenses are approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) or disclosed to Purchaser in writing or in the proposed lease at least three (3) Business Days prior to the date hereof. Seller shall be responsible for all brokerage and leasing commissions and tenant improvement costs for the initial term of all Leases entered into prior to the date of this Agreement and for any extension, renewal or expansion of any such Lease exercised prior to the date of this Agreement, provided in all such instances, the term of such Lease, extension, renewal or expansion and the regularly scheduled payment of rent commences prior to the date of this Agreement (collectively, “Seller Leasing Costs”). Purchaser shall be responsible for and expressly assumes the obligation to pay all brokerage and leasing commissions, tenant improvement costs and other costs and expenses including attorney’s fees other than the Seller Leasing Costs for any new leases entered into from and after the date of this Agreement and any extension, renewal or expansion of any existing Lease exercised or entered into from and after the date of this Agreement including, without limitation amounts owed under the Brokerage Agreements, provided in all such instances, the term of such Lease, extension, or expansion or the regularly scheduled payment of rent commences from and after the date of this Agreement, provided such new leases or extensions or expansions are approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) of this Agreement and provided such brokerage and leasing commissions, tenant improvement costs and other costs are disclosed to Purchaser in writing, in the applicable lease or other agreement delivered to Purchaser at the time Purchaser approves (or is deemed to have approved) such new leases, or any such Lease extensions, renewals or expansions (collectively, “Purchaser Leasing Costs”). If at the owner Closing Seller has paid any Purchaser Leasing Costs, the prorations at the Closing shall include an appropriate credit to Seller. If at the Closing there remain unpaid Seller Leasing Costs, Purchaser shall expressly assume the responsibility to pay such unpaid Seller Leasing Costs, and the prorations at the Closing shall include an appropriate credit to Purchaser.
5.4.4 As provided in Section 11.1.2, Seller shall be responsible for paying all fees, costs or commissions owing to the Broker (as defined in Section 11.1.2) with regard to the transactions contemplated by this Agreement.
5.4.5 The provisions of said rights) this Section 5.4 shall have all legal and equitable remedies authorized by federal law or survive the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such lawsClosing.
Appears in 1 contract
Sources: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Prorations. 13.1. Rents (exclusive of delinquent rentsa) Seller and Purchaser agree to adjust, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day immediately preceding the Closing DateDate (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments which are required to be paid during the calendar year in which the Closing occurs (on a cash basis so that such proration pursuant to this Section 10.4(a) shall be with respect to the taxes payable in the year in which the Closing occurs and not the taxes which are attributable to such year but payable the following year), utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (c) below), and operating expenses payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period up to and including the ClosingClosing Time, and the Purchaser shall pay the utility bills therefor will be charged and credited for all periods subsequent theretoof the Proration Items relating to the period after the Closing Time. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser Such preliminary estimated Closing prorations shall be charged its portion of such payment at Closing. No proration shall set forth on a preliminary closing statement to be made for utility expenses that are separately metered to prepared by Seller and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable submitted to Purchaser and Seller. Seller for Purchaser’s approval (which approval shall not be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent unreasonably withheld, delayed or conditioned) prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the amount of any actual amounts of the items to be prorated is Proration Items are not then ascertainableknown as of the Closing Time, the adjustments thereof shall prorations will be made at Closing on the basis of the most recent ascertainable databest evidence then available; thereafter, when actual figures are received, or if errors in prorations are discovered, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect No prorations will be made in relation to insurance premiums (except to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered extent covered by the proration of Operating Expenses). Final readings and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (final b▇▇▇▇▇▇▇ for utilities will be made if any) shall be treated as a portion of the real estate tax liability to be pro-rated possible as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall Time, in which event no proration will be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty utility bills (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, except to the extent that Purchaser is able to collect said delinquencies, covered by the Purchaser shall proration of Operating Expenses). Seller will be entitled to receive such delinquent rent attributable all deposits presently in effect with the utility providers, and Purchaser will be obligated to a tenant's occupancy make its own arrangements for deposits with the utility providers. A final reconciliation of a portion of Proration Items shall be made by Purchaser and Seller within fifteen (15) days after the Real Property for any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as first anniversary of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grantb) to Purchaser at Closing will receive a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence credit on the Closing Date Statement for the prorated amount (as of the Closing Time) of all Rentals previously paid to and shall expire on collected by Seller and attributable to any period following the day Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing for distribution pursuant to this Section. “Rentals” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which is one hundred eighty (180) days subsequent include each Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the date when extent the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During same exceeds any expense stop specified in such periodTenant Lease), Purchaser shall have the right to use the existing logosretroactive rentals, in place advertisingall administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone directory listings receipts, locker rentals, vending machine receipts and advertisements, other sums and telephone numbers, with respect charges payable to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed its successor by Tenants under the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date Tenant Leases or from other occupants or users of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.the
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)