Apportionments. SS' 11.01. (a) For purposes of this Section 11, the "Proration Date" shall be 11:59 p.m. on the day preceding the Closing so that Purchaser shall be deemed to be the owner of the Premises and therefore entitled to any revenues and responsible for any expenses for the entire day upon which the Closing occurs. Seller and Purchaser shall prepare a schedule of adjustments ("Schedule of Adjustments") prior to the Proration Date. Such adjustments, if and to the extent known and agreed upon as of the Closing, shall be (i) paid by Purchaser to Seller at the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit to the Purchaser). Any such adjustments not determined or not agreed upon as of the Closing shall be allocated on a fair and equitable basis as soon as invoices or bills are available, with final adjustments to be made as soon as reasonably possible after the Closing. Seller and Purchaser shall each act promptly and reasonably in connection with determining the prorations under this Section 11. This Section 11 shall survive the Closing. (b) All real estate taxes (including business improvement district charges, if any) on the Premises shall be prorated based on the actual current tax bill. If such tax bill has not ▇▇▇ been received ▇▇ ▇he Proration Date, then Purchaser and Seller shall estimate the real estate taxes based upon Purchaser's and Seller's good faith estimate of the change in the amount of the previous year's tax bill, and Purchaser and Seller ▇▇▇▇l after the Closing reprorate the real estate taxes as soon as the actual current tax bill is available. All amounts ▇▇▇▇ble for real estate taxes accruing on or prior to the Proration Date shall be the obligation of Seller, and all amounts payable for real estate taxes accruing after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by Seller. (c) All utility service charges and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basis. Seller shall be responsible for all such expenses that are payable or accrue on or prior to the Proration Date, and Purchaser shall be responsible for all such expenses which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to the period on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate to the period prior to the Proration Date. To aid in such prorations, Seller shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than thirty (30) days prior to the Proration Date, and the unfixed meter charge and the unfixed sewer rent, if any, based thereon for the intervening time shall be apportioned on the basis of such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated at the Closing on the basis of the most recent reading. (d) Periodically recurring governmental fees for Permits shall be prorated between Purchaser and Seller as of the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration Date. (e) Such other items as are customarily apportioned between buyers and sellers of real property of a type similar to the Premises in the State of New York shall be adjusted between Purchaser and Seller.
Appears in 1 contract
Sources: Contract of Sale (Globix Corp)
Apportionments. SS' 11.01.With respect to each JV Property, all revenues and expenses related to the JV Property operations accruing or relating to the period up to and including 11:59 p.m. (New York time) on the day immediately preceding the Closing Date (“Cut-Off Time”) shall belong to the applicable Seller. All revenues and expenses from JV Property operations accruing or relating to the period after the Cut-Off Time shall belong to Purchaser. Without limiting the foregoing, the following shall apply:
(a) For purposes With respect to each JV Property, all non-delinquent ad valorem real property and personal property general and special taxes and assessments for such Property for the current assessment year of this Section 11the applicable taxing authority in which the Closing Date occurs shall be prorated between the applicable Seller and Purchaser as of the Closing Date, based on their respective days of ownership of such Property during such assessment year. If the exact amount of taxes is not known at Closing, the "Proration Date" proration will be based on an amount equal to 100% of the prior assessment year’s taxes and shall be 11:59 p.m. on adjusted and reconciled directly between the day preceding applicable Seller and Purchaser once actual figures become available after Closing. All such prorations shall be made with due allowance for the maximum allowable discount and exemptions. Purchaser shall assume all obligations accruing from and after the Closing so that Date with respect to any agreements relating to the appealing of real estate taxes or real estate tax assessments, including the obligation to pay portions of amounts of real estate tax savings and costs and expenses related thereto. With respect to each JV Property, Purchaser shall be deemed to solely responsible for, and shall report and pay, all state and local sales or use taxes imposed in connection with the sale and transfer of any Personalty. Any state or local sales and use taxes, or other transfer taxes, registration, title or other fees payable in connection with registering or titling of any vehicle shall be the owner responsibility of Purchaser.
(b) With respect to each JV Property, rents and other payments under the Residency Agreements, the Leases (including, without limitation, the Boca Ciega Bay Lease and the NY Subleases), and other proceeds of the Premises ownership and therefore entitled operations of such JV Property (collectively, “Rents”) collected prior to any revenues Closing with respect to the month in which the Closing occurs shall be prorated based upon the actual number of days in such month. Any payments of Rents collected by the parties hereto after the Closing who owe Rents for periods prior to the Closing Date shall be applied to Rents then due and responsible payable in the following order of priority: (i) first, in payment of Rents for the month in which the Closing Date occurs, with such amounts being prorated between Seller and Purchaser based upon the number of days each owned the applicable JV Property during the month in which the Closing occurs; (ii) second, in payment of Rents for the month immediately preceding the month in which the Closing occurs; (iii) third, in payment of Rents for any expenses month which commenced after the Closing, but only to the extent payments of rents for such month are then currently due; and (iv) fourth, in payment of Rents for months preceding the entire day upon month in which the Closing occurs. Seller and Each of the parties hereto shall be obligated to pay over to the other party any Rents collected to which the other is entitled pursuant to the terms of this Agreement. For a period of one hundred eighty (180) days after Closing, Purchaser shall prepare a schedule of adjustments use commercially reasonable efforts ("Schedule of Adjustments"but shall not be obligated to institute legal proceedings) to collect and remit to Seller the Rents for each JV Property with respect to all periods prior to the Proration DateClosing. Such adjustments, if and to the extent known and agreed upon as of Following the Closing, Seller shall be (i) paid by Purchaser have the right to Seller at the Closing (if the prorations result in a net credit to Seller) pursue remedies against any resident or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit to the Purchaser). Any such adjustments not determined or not agreed upon as tenant of the JV Properties with respect to pre-Closing shall be allocated on a fair and equitable basis as soon as invoices or bills are available, with final adjustments to be made as soon as reasonably possible after the Closing. Seller and Purchaser shall each act promptly and reasonably deficiencies in connection with determining the prorations under this Section 11. This Section 11 shall survive the Closing.
(b) All real estate taxes (including business improvement district charges, if any) on the Premises shall be prorated based on the actual current tax bill. If such tax bill has not ▇▇▇ been received ▇▇ ▇he Proration Date, then Purchaser and Seller shall estimate the real estate taxes based upon Purchaser's and Seller's good faith estimate payment of the change in the amount of the previous year's tax bill, and Purchaser and Seller ▇▇▇▇l after the Closing reprorate the real estate taxes as soon as the actual current tax bill is available. All amounts ▇▇▇▇ble for real estate taxes accruing on or prior to the Proration Date shall be the obligation of Seller, and all amounts payable for real estate taxes accruing after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by SellerRents.
(c) All With respect to each JV Property, the applicable Seller shall request each utility company providing utility service to the applicable JV Property to cause all utility ▇▇▇▇▇▇▇▇ to be closed and billed as of the Closing Date in order that utility charges may be separately billed for the period prior to the Closing Date and fees the period on and after the Closing Date. In the event any such utility charges are not separately billed, the same shall be prorated. In connection with any such proration, it shall be presumed that utility charges were uniformly incurred during the billing period in which the Closing Date occurs. Each Seller shall receive a credit at Closing for any deposits made by Seller in connection with providing water, sewer, water and gas, electricity, heat telephone and air conditioning serviceother public utilities to the JV Property with respect to its respective JV Property that are transferred or made available to Purchaser.
(d) With respect to each JV Property, other utilitiesall obligations and liabilities (for services and materials ordered, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred or otherwise in the ordinary course of business) and accounts payable for the JV Property owing as of the Closing Date for merchandise, equipment, supplies and other materials and services paid, incurred or ordered shall be prorated between the applicable Seller and Purchaser as of the Closing Date.
(e) Except as covered by the terms of Section 7(a) above, with respect to each JV Property, all water and sewer charges, taxes (other than ad valorem real property or business personal property taxes), including license taxes or fees for licenses which are assignable or transferable without added cost and have a value which will survive Closing, and any unpaid taxes payable in arrears, shall be prorated as of the Closing Date. Each Seller will be credited for that portion of taxes and fees paid by such Seller allocable to the period after the Closing Date.
(f) With respect to each JV Property, all payments and receipts, as applicable, under the assumed Contracts shall be prorated between Purchaser and the applicable Seller as of the Closing Date. The applicable Seller shall receive a credit for all prepayments and deposits thereunder.
(g) With respect to each JV Property, all other income derived by the applicable Seller from the JV Property accruing or relating to the period up to and including the Cut-Off Time shall be paid to such Seller. All other income derived by such Seller from the JV Property accruing or relating to the period on and after the Cut-Off Time shall be paid to Purchaser.
(h) With respect to each JV Property, all other expenses and obligations not otherwise specified in this Section 7 incurred in the ownership of the JV Property and operation of the JV Property and which are customarily prorated in similar transactions shall be prorated between the applicable Seller and Purchaser as of the Closing Date.
(i) With respect to each JV Property, Purchaser shall receive a credit for any refundable security deposits (and if legal requirements or any agreements require a landlord to be accountable for interest on such refundable security deposits, any accrued interest owed thereon), which credit shall be applied against the allocated Purchase Price for the JV Property at which there exist prepaid rents and other resident charges or refundable security deposits.
(j) Except as set forth in Section 8(a)(xv), Seller shall have no obligation to remove any notes or notices of violations of law, or municipal ordinances, orders, designations or requirements whatsoever noted in or issued by any federal, state, municipal or other governmental department, agency or bureau or any other governmental authority having jurisdiction over the Properties (collectively, “Violations”); provided, that (i) at or prior to Closing, either (A) Seller shall pay or bond all monetary fines, fees or penalties accruing prior to the Closing Date with respect any such Violations or (B) Purchaser shall receive a credit for any such monetary fines, fees or penalties accruing prior to the Closing Date with respect any such Violations that remain unpaid, and (ii) notwithstanding the foregoing, Seller shall be obligated to continue to perform, or cause to be performed, routine maintenance and repair of the Properties as and to the extent required pursuant to clause (i), (ii) or (iii) (as applicable) of Section 8(a).
(k) Salaries, wages and benefits (accrued and unpaid employee benefits, vacation time, and personal days) with respect to the then-current employees (“Facility Employees”) of Seller or WRC at each JV Property shall be prorated between Seller and Purchaser as of the Closing Date. On the Closing Date, Seller shall credit Purchaser on the Closing Statement (and Purchaser or New Operator shall, or shall cause WRC to, assume responsibility) for estimated accrued and unpaid employee benefits, vacation time, and personal days for all Facility Employees, based on the accrued amount calculated by Seller for the Property as of the Closing Date (“Accrued PTO”). Purchaser shall apply, or cause WRC to apply, any such Accrued PTO for which it has received a credit pursuant to this Section 7(k) to its intended purpose for the benefit of each applicable Facility Employee. Solely as between Seller and Purchaser, Purchaser shall be responsible for any severance pay due to any Facility Employees who Purchaser or New Operator or WRC elects to terminate on or after the Closing Date.
(l) With respect to each JV Property and each Master Lease Property, Seller shall receive a credit at Closing in connection with the amount of any required reserves, escrows or other deposits maintained pursuant to any Law by or on behalf of any Seller, Master Tenant, or any of their respective affiliates, in each case as security for the operation of the Premisesapplicable Property(ies) or obligations of the licensed operator thereof (the “Regulatory Deposits”). Purchaser shall not receive any credits hereunder in connection with any Regulatory Deposits made or required to be made in connection with obtaining any Licensure Approvals.
(m) At the Closing (or thereafter as provided in this Section 7(m)): (i) Purchaser shall receive a credit in the aggregate amount of $318,000 on account of the expected removal and/or remediation of underground storage tanks at certain of the Properties; (ii) within one hundred eighty (180) days after Closing, Seller shall reimburse Purchaser for all costs incurred by Purchaser, as reasonably determined by Purchaser and Seller based upon the written estimates obtained by Seller and/or Purchaser, to remediate certain moisture issues, including repair of any foundational cracks or leaks causing such issues, at certain of the Properties (provided, that such amount shall not to exceed $1,000,000); (iii) Purchaser shall receive a credit in the amount by which Seller’s aggregate capital expenditures for all Properties (excluding any capital expenditures on unit renovations at the Master Lease Properties) from January 1, 2021 until October 31, 2021 is less than, or Seller shall receive a credit in the amount by which such aggregate capital expenditures exceed, in each case, Seller’s budgeted aggregate capital expenditures for all Properties (excluding any capital expenditures on unit renovations at the Master Lease Properties) for calendar year 2021 prorated through October 31, 2021; and (iv) within ninety (90) days after Closing, in the event that the amount by which Seller’s aggregate capital expenditures for all Properties (excluding any capital expenditures on unit renovations at the Master Lease Properties) from November 1, 2021 until the Closing Date is more or less than Seller’s budgeted aggregate capital expenditures for all Properties (excluding any capital expenditures on unit renovations at the Master Lease Properties) for such period, Seller and Purchaser shall prorate such amounts and, if the amount actually spent is less than the budgeted amount, Seller shall pay Purchaser an amount equal to the difference and, if the amount actually spent by Seller is greater that the budgeted amount, Purchaser shall pay Seller an amount equal to the difference; provided, that in the case of the foregoing clauses (iii) and (iv) that neither party shall receive any credit or payment thereunder unless the amount of such difference is equal to or exceeds $250,000, and Seller shall not be entitled to a credit or payment thereunder for any non-emergency capital expenditure in excess of $250,000 in the aggregate unless Purchaser has approved in writing such capital expenditure prior to Seller having incurred such capital expenditure.
(n) Except as otherwise expressly provided in this Agreement, all apportionments and adjustments shall be made in accordance with generally accepted accounting principles. The computation of the adjustments shall be jointly prepared by Seller and Purchaser. In the event any prorations or apportionments made under this Section 7 shall prove to be incorrect for any reason, then any party shall be entitled to an adjustment to correct the same in accordance with the remaining terms of this Section 7(n). To the extent the exact amount of any adjustment item provided for in this Section 7 cannot be precisely determined on the Closing Date, such prorations and apportionments shall be tentatively prorated on an accrual basisthe basis of the best data then available and re-prorated when the information is available. Notwithstanding the foregoing, any adjustment or re-proration pursuant to the two immediately preceding sentences shall be made, if at all, within ninety (90) days after the Closing Date (except with respect to taxes and assessments, in which case such re-proration shall be made within sixty (60) days after the information necessary to perform such re-proration is available). All payments to be made as a result of the final results of the adjustments shall be paid to the party entitled to the same within fifteen (15) days after the final determination thereof. Seller and Purchaser agree that none of the insurance policies relating to any Property will be assigned to Purchaser (and each Seller shall be responsible for all such expenses that are payable pay any cancellation fees or accrue on or prior minimum earned premiums resulting from the termination of the policies relating to the Proration Dateits respective Property), and Purchaser shall be responsible for all such expenses which are payable or accrue after arranging for its own insurance as of the Proration Closing Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to .
(o) On the period on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate to the period prior to the Proration Date. To aid in such prorations, Seller shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than thirty (30) days prior to the Proration Closing Date, the Seller will provide to Purchaser a true, correct, and complete accounting (properly reconciled) of all resident trust funds, resident security deposits, patient deposits, refundable community fees, or any residents’ property that may be held by Seller on the unfixed meter charge and Closing Date for residents at JV Properties (“Resident Trust Funds”) (which for the unfixed sewer rentavoidance of doubt excludes refundable entrance fees), if any, based thereon held by Seller. If applicable, to the extent permitted by applicable Laws, Seller will deliver such Resident Trust Funds to Purchaser within two (2) business days of Closing. Purchaser shall, or shall cause New Operator to, accept such Resident Trust Funds in trust for the intervening time shall be apportioned on residents of the basis JV Properties and will hold and disperse such Resident Trust Funds in accordance with applicable contractual, statutory and regulatory requirements. Seller will indemnify, defend, and hold the Purchaser harmless from all liabilities, claims and demands, including reasonable attorney’s fees, in the event the amount of such last reading, provided thatthe Resident Trust Funds, if any, transferred to Purchaser did not represent the full amount of any Resident Trust Funds shown to have been delivered to Seller or its affiliate, as custodian or with respect to any Resident Trust Funds delivered, or claimed to have been delivered, to Seller or its affiliate, but which were not delivered by Seller to Purchaser, or for claims that arise from actions or omissions of Seller with respect to the Resident Trust Funds before the Closing Date. Purchaser will indemnify, defend and hold Seller harmless from all liabilities, claims and demands, including reasonable attorneys’ fees, in the event a claim is unable made against Seller with respect to obtain the Resident Trust Funds with respect to any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees funds that are transferred to Purchaser pursuant to this Section 7(o). For the avoidance of doubt, claims made pursuant to the indemnities set forth in this Section 7(o) shall not be prorated at subject to the Closing on the basis of the most recent readingThreshold Amount.
(dp) Periodically recurring governmental fees for Permits shall be prorated between Purchaser Except as expressly set forth in Section 7(l) and Seller as of the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration Date.
(e) Such other items as are customarily apportioned between buyers and sellers of real property of a type similar to the Premises in the State of New York shall be adjusted between Purchaser and Seller.Section 7(m
Appears in 1 contract
Sources: Portfolio Acquisition Agreement (NorthStar Healthcare Income, Inc.)
Apportionments. SS' 11.01.
(a) For purposes All real property taxes and special assessments levied against the Property in the year of this Section 11, the "Proration Date" shall Close of Escrow and all expenses of operation of the Property will be prorated as of 11:59 p.m. on the day preceding prior to the Closing so that Purchaser shall Close of Escrow in accordance with the provisions set forth below. No insurance policies relating to the Property will be assigned at the Closing. For purposes of calculating prorations, Buyer will be deemed to be the owner of the Premises and therefore entitled to any revenues the income and responsible for any expenses the expenses, for the entire day upon which the Closing Close of Escrow occurs. Seller and Purchaser shall prepare Except as otherwise expressly herein provided, all proration adjustments will be final as of the Closing Date. To the extent any revenues or costs are not ascertainable as of the Closing Date, the final adjustment will be based upon a schedule reasonable estimate of adjustments ("Schedule of Adjustments") prior to the Proration Dateparties. Such adjustments, if and to the extent known and agreed upon as of the ClosingClosing Date, shall will be (i) paid by Purchaser Buyer to Seller at the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing by Seller to Buyer (if the prorations result in a net credit to Buyer), by increasing or reducing the Purchaser)cash portion of the Purchase Price. Any such adjustments All real estate taxes and special assessments on the Property and all taxes on the personal property will be prorated on a cash basis determined by the actual current tax ▇▇▇▇ or, if not determined available or not agreed upon ascertainable, then based on the most recent levy and assessment information. The tax proration adjustment will be final as of the Closing shall Date and will not be allocated on a fair and equitable basis as soon as invoices or bills are available, with final adjustments subject to be made as soon as reasonably possible after the Closingreadjustment. Seller and Purchaser shall each act promptly and reasonably in connection with determining the prorations under The provisions of this Section 11. This Section 11 10 shall survive the Closing.
(b) All Close of Escrow and recording of the Deed. Notwithstanding anything above to the contrary, any supplemental or escaped real estate taxes (including business improvement district charges, if any) or assessments on the Premises shall be prorated based on the actual current tax bill. If such tax bill has not ▇▇▇ been received ▇▇ ▇he Proration Date, then Purchaser and Seller shall estimate the real estate taxes based upon Purchaser's and Seller's good faith estimate of the change in the amount of the previous year's tax bill, and Purchaser and Seller ▇▇▇▇l Property which are assessed after the Closing reprorate the real estate taxes as soon as the actual current tax bill is available. All amounts ▇▇▇▇ble for real estate taxes accruing on or prior to the Proration Date shall be the obligation Close of Seller, and all amounts payable for real estate taxes accruing after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by Seller.
(c) All utility service charges and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basis. Seller shall be responsible for all such expenses that are payable or accrue on or prior to the Proration Date, and Purchaser shall be responsible for all such expenses Escrow but which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to the period on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate attributable to the period prior to the Proration Date. To aid in such prorations, Seller shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than thirty (30) days prior to the Proration Date, and the unfixed meter charge and the unfixed sewer rent, if any, based thereon for the intervening time Close of Escrow shall be apportioned on the basis paid by Seller outside of such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated at the Closing on the basis of the most recent readingEscrow promptly upon written notification thereof.
(d) Periodically recurring governmental fees for Permits shall be prorated between Purchaser and Seller as of the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration Date.
(e) Such other items as are customarily apportioned between buyers and sellers of real property of a type similar to the Premises in the State of New York shall be adjusted between Purchaser and Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Banc of California, Inc.)
Apportionments. SS' 11.01The following shall be apportioned as of midnight on the date preceding the Closing Date:
(i) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date.
(a) For purposes of this Section 11, the "Proration Date" shall be 11:59 p.m. on the day preceding the Closing so that Purchaser shall be deemed to be the owner of the Premises and therefore entitled to any revenues and responsible for any expenses for the entire day upon which the Closing occurs. Seller and Purchaser shall prepare a schedule of adjustments ("Schedule of Adjustments") prior to the Proration Date. Such adjustments, if and to the extent known and agreed upon as of the Closing, shall be (i) paid by Purchaser to Seller at the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit Amounts payable under any service contracts other than those which Purchaser has elected to the Purchaser). Any such adjustments not determined or not agreed upon as of the Closing shall be allocated on a fair and equitable basis as soon as invoices or bills are available, with final adjustments to be made as soon as reasonably possible after the Closing. Seller and Purchaser shall each act promptly and reasonably in connection with determining the prorations under this Section 11. This Section 11 shall survive the Closingassume.
(biii) All 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 (including business improvement district chargesby reason of change in either assessment or rate or for any other reason) for the Property should be determined to be higher or lower than those that are apportioned, if any) on the Premises a new computation shall be prorated based on the actual current tax bill. If such tax bill has not ▇▇▇ been received ▇▇ ▇he Proration Date, then Purchaser made and Seller shall estimate the real estate taxes based upon Purchaser's agrees to pay Purchaser any increase shown by such recomputation and Seller's good faith estimate of the change in the amount of the previous year's tax bill, and Purchaser and Seller ▇▇▇▇l after the Closing reprorate the real estate taxes as soon as the actual current tax bill is available. All amounts ▇▇▇▇ble for real estate taxes accruing on or prior to the Proration Date shall be the obligation of Seller, and all amounts payable for real estate taxes accruing after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by Seller.
(c) All utility service charges and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basisvice versa. Seller shall be responsible for all such expenses that are payable or accrue on or prior the charges attributable to the Proration Date, and Purchaser shall be responsible for all such expenses which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate Property to the period Closing Date.
(iv) The value of any heating fuel stored for use at any of the Property, at Seller's most recent cost, including taxes, on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate to the period prior to the Proration Date. To aid in such prorations, Seller shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than thirty basis of a reading made within ten (3010) days prior to the Proration Date, and the unfixed meter charge and the unfixed sewer rent, if any, based thereon for the intervening time shall be apportioned on the basis of such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated at the Closing on the basis of the most recent readingDate by Seller's supplier.
(dv) Periodically recurring governmental fees for Permits Except as otherwise provided in this Agreement, the adjustments shall be prorated between Purchaser and Seller as of made in accordance with the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior customs in respect to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration Date.
(e) Such other items as are customarily apportioned between buyers and sellers of real property of a type similar to the Premises title closings in the State of New York York.
(vi) Any errors in calculations or adjustments shall be corrected or adjusted between Purchaser and Selleras soon as practicable after the Closing.
(vii) The provisions of this Section 12 shall survive the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mack Cali Realty Corp)
Apportionments. SS' 11.01.The following apportionments shall be made between the parties on the Closing Date as of the close of the business day prior to the Closing Date and the net amount of such prorations and apportionments shall be settled in accordance with Section 12.04:
(a) For purposes prepaid and collected rent;
(b) real estate and personal property taxes, water charges, sewer rents and vault charges, if any, on the basis of the fiscal period for which assessed, except that if there is a water meter on the Property, apportionment on the Closing Date shall be based on the last available reading, subject to adjustment after the Closing on a per diem basis, when the next reading is available;
(c) Intentionally omitted;
(d) charges or prepayments under transferable Service Contracts; and
(e) all other income and expenses relating to the Property, including without limitation, income from cable television services as are customarily adjusted in real estate transactions of this Section 11size and type in Baltimore, the "Proration Date" shall be 11:59 p.m. on the day preceding the Closing so that Purchaser shall be deemed to be the owner of the Premises and therefore entitled to any revenues and responsible for any expenses for the entire day upon which the Closing occursMaryland. Seller and Purchaser shall prepare a schedule of adjustments ("Schedule of Adjustments") prior to the Proration Date. Such adjustments, if and to the extent known and agreed upon as of the Closing, shall be (i) paid by Purchaser to Seller at the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit to the Purchaser). Any such adjustments not determined or not agreed upon If as of the Closing shall be allocated on a fair and equitable basis as soon as invoices Date, any items of income or bills expense attributable to the Property are not known or available, with final adjustments the parties agree to be made equitably apportion such items, so long as soon as reasonably possible the same are identified within 90 days after the Closing. Seller If the Closing Date shall occur before the applicable real estate or personal property tax rate is fixed, the apportionment of taxes on the Closing Date shall be upon the basis of the tax rate for the preceding period applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed. Any discrepancy resulting from such recomputation and Purchaser any material errors or omissions in computing any apportionments on the Closing Date shall each act be promptly and reasonably in connection with determining the prorations under this Section 11. This Section 11 corrected, which obligation shall survive the Closing Date for a period of ninety (90) days after Closing.
. At least five (b) All real estate taxes (including business improvement district charges, if any) on the Premises shall be prorated based on the actual current tax bill. If such tax bill has not ▇▇▇ been received ▇▇ ▇he Proration Date, then Purchaser and Seller shall estimate the real estate taxes based upon Purchaser's and Seller's good faith estimate of the change in the amount of the previous year's tax bill, and Purchaser and Seller ▇▇▇▇l after the Closing reprorate the real estate taxes as soon as the actual current tax bill is available. All amounts ▇▇▇▇ble for real estate taxes accruing on or prior to the Proration Date shall be the obligation of Seller, and all amounts payable for real estate taxes accruing after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by Seller.
(c) All utility service charges and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basis. Seller shall be responsible for all such expenses that are payable or accrue on or prior to the Proration Date, and Purchaser shall be responsible for all such expenses which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to the period on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate to the period prior to the Proration Date. To aid in such prorations, Seller shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than thirty (305) days prior to the Proration Closing Date, the Transferor Agent and the unfixed meter charge BRI Partnership shall prepare and exchange preliminary calculations of all adjustments and prorations to be made pursuant to this Section 12. Transferor Agent and the unfixed sewer rentBRI Partnership shall cooperate in the furnishing of all information and documentation necessary to prepare such calculations. Prior to Closing, the Transferor Agent shall deliver to the BRI Partnership the final Transfer Allocation Schedule (the "Transfer Allocation Schedule"), which shall be based upon the Preliminary Transfer Allocation Schedule, shall incorporate all adjustments and prorations to be made pursuant to Section 12 and shall set forth (i) the name of each Transferor Partner, (ii) the number of Unrestricted Distribution BRI Partnership Units to be received by each Transferor Partner, and (iii) the number of the Restricted Distribution BRI Partnership Units to be received by each Transferor Partner. The BRI Partnership shall have no obligation or liability with respect to the preparation or accuracy of the Preliminary Transferor Allocation Schedule or the Transfer Allocation Schedule or the distribution of the BRI Partnership Units or the BRI Additional Payment, if anyapplicable, based thereon to the Transferor Partners and the Transferor Partners hereby release the BRI Partnership from any such obligation or liability. All cash (including the escrow deposits set forth on Schedule C) shall be used by the Transferor Partnership to pay amounts payable by the Transferor Partnership and/or distributed to the Transferor Partners prior to Closing, and if any of such cash applicable to pre-closing periods is not removed from the Transferor Partnership prior to Closing, the BRI Partnership shall hold such cash as agent for the intervening time shall be apportioned on the basis of Transferor Partners, and refund such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated at the Closing on the basis of the most recent reading.
(d) Periodically recurring governmental fees for Permits shall be prorated between Purchaser and Seller as of the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior cash to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration DateTransferor Partners subsequent to Closing.
(e) Such other items as are customarily apportioned between buyers and sellers of real property of a type similar to the Premises in the State of New York shall be adjusted between Purchaser and Seller.
Appears in 1 contract
Sources: Contribution Agreement (Berkshire Realty Co Inc /De)
Apportionments. SS' 11.01.The following shall be apportioned between Seller and Buyer with respect to the Property, as of the close of business of the day immediately preceding the expiration or sooner termination date under the “Seller’s Lease” (as defined in Section 8.2) (the “Apportionment Date”), and the net aggregate amount thereof either shall be paid by Buyer to Seller or Seller to Buyer, within thirty (30) days following the Apportionment Date:
(a) For purposes of this Section 11, All Real Estate Taxes (as defined in the "Proration Date" shall be 11:59 p.m. on the day preceding the Closing so that Purchaser shall be deemed to be the owner of the Premises and therefore entitled to any revenues and responsible for any expenses for the entire day upon which the Closing occurs. Seller and Purchaser shall prepare a schedule of adjustments ("Schedule of Adjustments"Seller’s Lease) prior to the Proration Date. Such adjustments, if and to the extent known and agreed upon as of the Closing, shall be (i) paid by Purchaser to Seller at the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit to the Purchaser). Any such adjustments not determined or not agreed upon as of the Closing shall be allocated on a fair and equitable basis as soon as invoices or bills are available, with final adjustments to be made as soon as reasonably possible after the Closing. Seller and Purchaser shall each act promptly and reasonably in connection with determining the prorations under this Section 11. This Section 11 shall survive the Closing.
(b) All real estate taxes (including business improvement district charges, if any) on the Premises shall be prorated based on the actual current tax bill▇▇▇▇. If such tax bill has not ▇▇▇▇ has not yet been received ▇▇ ▇he Proration by the Apportionment Date, then Purchaser Buyer and Seller shall estimate the real estate taxes Real Estate Taxes based upon Purchaser's Buyer’s and Seller's ’s good faith estimate of the change in the amount of the previous year's ’s tax bill, and Purchaser and Seller ▇▇▇▇l ▇ and Buyer and Seller shall after the Closing reprorate report the real estate taxes Real Estate Taxes as soon as the actual current tax bill ▇▇▇▇ is available. All amounts ▇▇▇▇ble payable for real estate taxes Real Estate Taxes accruing on or prior to the Proration Apportionment Date shall be the obligation of Seller, Seller and all amounts payable for real estate taxes Real Estate Taxes accruing after the Proration Apportionment Date shall be the obligation of PurchaserBuyer. If, by one hundred eighty (180) days after the Apportionment Date, any additional or supplemental Real Estate Taxes are assessed against the Premises by reason of back assessments, corrections to previous tax bills or other events occurring prior to the Apportionment Date, Buyer and Seller shall re-prorate the Real Estate Taxes following the Apportionment Date. Any delinquent taxes Real Estate Taxes on the Premises shall be paid at on the Closing Apportionment Date;
(b) water rates and charges, sewer taxes and rents and electricity, steam and other utility charges, except those required to be paid directly by SellerTenants and subject to the terms of Section 4.3 hereof.
(c) All utility service charges fuel oil and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basis. Seller shall be responsible for all such expenses that are payable or accrue on or prior to the Proration Date, and Purchaser shall be responsible for all such expenses which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to the period on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate to the period prior to the Proration Date. To aid in such prorations, Seller shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than thirty (30) days prior to the Proration Date, and the unfixed meter charge and the unfixed sewer rentliquid propane gas, if any, at the cost per gallon most recently charged to Seller, based thereon for the intervening time shall be apportioned on the basis of such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated at the Closing on the basis supplier’s measurements thereof taken within five (5) Business Days of the most recent reading.Apportionment Date;
(d) Periodically recurring governmental fees for Permits shall be prorated between Purchaser Rents and Seller as other revenues derived from the Leases, if, as, and when collected in accordance with the provisions of the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration Date.this Article 4, including Section 4.4;
(e) Such insurance proceeds received by Seller, if any, and payable to Buyer pursuant to Article 13 hereof to the extent not applied to repair or restore the Property in accordance with the provisions of this Agreement;
(f) charges and payments under any Assumed Contracts or permitted renewals or replacements thereof, and any deposits made thereunder, transferred to Buyer pursuant to this Agreement, as identified on Schedule 5.1.8;
(g) annual municipal permit and inspection fees and other items as fees for Licenses and Permits assigned to Buyer, if any; and
(h) all other operating expenses with respect to the Property to the extent such matters are customarily apportioned between buyers and sellers in connection with real estate closings of real property of a type similar to the Premises commercial properties located in the State of New York shall be adjusted between Purchaser and SellerYork, New York.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Bank of New York Mellon Corp)
Apportionments. SS' 11.01.
(a) For purposes of this Section 11At the Closing, the "Proration Date" following items shall be apportioned between the parties as of 11:59 p.m. PM on the day preceding the Closing so that Purchaser Date. Any errors in the apportionments pursuant to this Section 4.04 shall be deemed corrected by appropriate re-adjustment between Seller and Buyer post-Closing, provided that notice of any such error, with supporting calculations, shall be given by Buyer to Seller or by Seller to Buyer, as the case may be, no later than ninety (90) days after the Closing, if ascertainable within such period, it being understood and agreed that if any such items or errors are not ascertainable at the Closing or within ninety (90) days thereafter, the apportionment shall be made subsequent to the Closing as soon as practicable after the charge or error is determined. The items to be apportioned are:
(b) Real estate taxes, school taxes, sewer charges, and vault charges, if any, and any and all other municipal or governmental assessments of any and every nature levied or imposed upon the owner Property with respect to the current fiscal year of the Premises applicable taxing authority in which the Closing Date occurs (the "Current Tax Year"), on a per diem basis based upon the number of days in the Current Tax Year prior to the Closing Date (which shall be allocated to Seller) and therefore entitled the number of days in the Current Tax Year on and after the Closing Date (which shall be allocated to any revenues Buyer). If the Closing shall occur before the tax rate for the Current Tax Year is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the next preceding fiscal period applied to the latest assessed valuation. Promptly after the new tax rate is fixed for the fiscal period in which the Closing takes place, the apportionment of real estate taxes shall be recomputed. Upon the Closing Date and subject to the adjustment provided above, Buyer shall be responsible for real estate taxes and assessments levied or imposed upon the Property payable with respect to the Current Tax Year and all periods after the Current Tax Year. In no event shall Seller be charged with or be responsible for any expenses increase in the real estate taxes or assessments levied or imposed upon the Property resulting from the transfer of the Property herein contemplated or from any improvements made at any time or for any reason. In the event that any assessments levied or imposed upon the Property are payable in installments, the installment for the entire day Current Tax Year shall be prorated in the manner set forth above and Buyer hereby assumes the obligation to pay any such installments due on and after the Closing Date.
(c) Buyer acknowledges that the Property is subject to a pending real estate tax appeal. If the tax appeal results in a reduced real estate assessment for the fiscal year in which Closing occurs, the real estate taxes shall be apportioned based upon the reduced assessment, and Buyer shall reimburse Seller at Closing for its proportionate share of the costs of the tax appeal, based upon the fiscal year in which the Closing occurs. Seller and Purchaser shall prepare a schedule of adjustments ("Schedule of Adjustments") In the event that the tax assessment is reduced for any fiscal year prior to the Proration Date. Such adjustments, if and to the extent known and agreed upon as of the Closing, shall be (i) paid by Purchaser to Seller at fiscal year in which the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit to the Purchaser). Any such adjustments not determined or not agreed upon as of the Closing shall be allocated on a fair and equitable basis as soon as invoices or bills are availableoccurs, with final adjustments to be made as soon as reasonably possible after the Closing. Seller and Purchaser shall each act promptly and reasonably in connection with determining the prorations under this Section 11. This Section 11 shall survive the Closing.
(b) All real estate taxes (including business improvement district charges, if any) on the Premises shall be prorated based on the actual current tax bill. If such tax bill has not ▇▇▇ been received ▇▇ ▇he Proration Date, then Purchaser and Seller shall estimate the real estate taxes based upon Purchaser's and Seller's good faith estimate of the change in the amount of the previous year's tax bill, and Purchaser and Seller ▇▇▇▇l after the Closing reprorate the real estate taxes as soon as the actual current tax bill is available. All amounts ▇▇▇▇ble for real estate taxes accruing on or prior to the Proration Date shall be the obligation of Seller, and all amounts payable for real estate taxes accruing after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by Seller.
(c) All utility service charges and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basis. Seller shall be responsible entitled to receive the entire tax refund for all such expenses that are payable or accrue on or prior to the Proration Date, and Purchaser shall be responsible for all such expenses which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to the period on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate to the period prior to the Proration Date. To aid in such prorations, Seller shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than thirty (30) days prior to the Proration Date, and the unfixed meter charge and the unfixed sewer rent, if any, based thereon for the intervening time shall be apportioned on the basis of such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated at the Closing on the basis of the most recent readingfiscal year.
(d) Periodically recurring governmental fees for Permits shall be prorated between Purchaser and Seller as of the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration Date.
(e) Such other items as are customarily apportioned between buyers and sellers of real property of a type similar to the Premises in the State of New York shall be adjusted between Purchaser and Seller.
Appears in 1 contract
Sources: Sale Agreement (DVL Inc /De/)
Apportionments. SS' 11.01.
(a) For purposes of this Section 11, the "Proration Date" shall be 11:59 p.m. on the day preceding the Closing so that Purchaser shall be deemed to be the owner of the Premises and therefore entitled to any revenues and responsible for any expenses for the entire day upon which the Closing occurs. Seller and Purchaser shall prepare a schedule of adjustments ("Schedule of Adjustments") prior to the Proration Date. Such adjustments, if and to the extent known and agreed upon as of the Closing, shall be (i) paid by Purchaser to Seller at the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit to the Purchaser). Any such adjustments not determined or not agreed upon as of the Closing shall be allocated on a fair and equitable basis as soon as invoices or bills are available, with final adjustments to be made as soon as reasonably possible after the Closing. Seller and Purchaser shall each act promptly and reasonably in connection with determining the prorations under this Section 11. This Section 11 shall survive the Closing.
(b) All real estate taxes (including business improvement district charges, if any) on the Premises shall be prorated based on the actual current tax bill. If such tax bill has not ▇▇▇ been received ▇▇ ▇he Proration Date, then Purchaser and Seller shall estimate the real estate taxes based upon Purchaser's and Seller's good faith estimate of the change in the amount of the previous year's tax bill, and Purchaser and Seller ▇▇▇▇l after the Closing reprorate the real estate taxes as soon as the actual current tax bill is available. All amounts ▇▇▇▇ble for real estate taxes accruing on or prior to the Proration Date shall be the obligation of Seller, and all amounts payable for real estate taxes accruing after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by Seller.
(c) All utility service charges and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basis. Seller shall be responsible for all such expenses that are payable or accrue on or prior to the Proration Date, and Purchaser shall be responsible for all such expenses which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to the period on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate special assessments attributable to the period prior to the Proration Closing) and items of income and expense with respect to each Property shall be adjusted between Seller and Purchaser as of the Closing Date. To aid All items of revenue, cost and expense of each Property with respect to the period prior to the Closing Date shall be for the account of Seller. All items of revenue, cost and expense of each Property with respect to the period from and after the Closing Date shall be for the account of Tenant according to the terms of the Lease. The adjustments hereunder shall be calculated or paid in an amount based upon a fair and reasonable estimated accounting performed and agreed to by representatives of Seller, Tenant and Purchaser at the Closing. Subsequent final adjustments and payments shall be made in cash or other immediately available funds as soon as practicable after the Closing Date, and in any event within ninety (90) days after the Closing Date (provided that such prorations, Seller ninety day period shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than be extended up to an additional thirty (30) days prior after the necessary information becomes available for the parties to calculate any necessary adjustments relating to payments of real estate taxes or special assessments), based upon an accounting performed by the Tenant and acceptable to Seller, Tenant and Purchaser. In the event the parties have not agreed with respect to the Proration Dateadjustments required to be made pursuant to this Section 9.1 within such 90 day period, and upon application by any such party, a certified public accountant reasonably acceptable to the unfixed meter charge and parties to such disputed adjustment shall determine any such adjustments which have not theretofore been agreed to between such parties. The charges of such accountant shall be borne equally by the unfixed sewer rent, if any, based thereon parties to such disputed adjustment; provided that Tenant shall not be responsible for the intervening time charges of such accountant unless Tenant made an application to resolve such dispute. All adjustments to be made as a result of the final results of the adjustments shall be apportioned on paid to the basis of party entitled to such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated at adjustment within thirty (30) days after the Closing on the basis of the most recent readingfinal determination thereof.
(db) Periodically recurring governmental fees for Permits The provisions of this Section 9.1 shall be prorated between Purchaser and Seller as of survive the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration DateClosing.
(e) Such other items as are customarily apportioned between buyers and sellers of real property of a type similar to the Premises in the State of New York shall be adjusted between Purchaser and Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Retirement Properties Inc)
Apportionments. SS' 11.01.
(a) For purposes of this Section 11, the "Proration Date" shall be 11:59 p.m. on the day preceding the Closing so that Purchaser shall be deemed to be the owner of the Premises and therefore entitled to any revenues and responsible for any expenses for the entire day upon which the Closing occurs. Seller and Purchaser shall prepare a schedule of adjustments ("Schedule of Adjustments") prior to the Proration Date. Such adjustments, if and to the extent known and agreed upon as of the Closing, shall be (i) paid by Purchaser to Seller at the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit to the Purchaser). Any such adjustments not determined or not agreed upon as of the Closing shall be allocated on a fair and equitable basis as soon as invoices or bills are available, with final adjustments to be made as soon as reasonably possible after the Closing. Seller and Purchaser shall each act promptly and reasonably in connection with determining the prorations under this Section 11. This Section 11 shall survive the Closing.
(b) All real estate taxes (including business improvement district charges, if any) on the Premises shall be prorated based on the actual current tax bill. If such tax bill has not ▇▇▇ been received ▇▇ ▇he Proration Date, then Purchaser and Seller shall estimate the real estate taxes based upon Purchaser's and Seller's good faith estimate of the change in the amount of the previous year's tax bill, and Purchaser and Seller ▇▇▇▇l after the Closing reprorate the real estate taxes as soon as the actual current tax bill is available. All amounts ▇▇▇▇ble for real estate taxes accruing on or prior to the Proration Date shall be the obligation of Seller, and all amounts payable for real estate taxes accruing after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by Seller.
(c) All utility service charges and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basis. Seller shall be responsible for all such expenses that are payable or accrue on or prior to the Proration Date, and Purchaser shall be responsible for all such expenses which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to the period on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate special assessments attributable to the period prior to the Proration Closing) and items of income and expense with respect to each Property shall be adjusted between Sellers and Purchaser as of the Closing Date. To aid All items of revenue, cost and expense of each Property with respect to the period prior to the Closing Date shall be for the account of each Owner. All items of revenue, cost and expense of each Property with respect to the period from and after the Closing Date shall be for the account of Tenant according to the terms of the Lease. The adjustments hereunder shall be calculated or paid in an amount based upon a fair and reasonable estimated accounting performed and agreed to by representatives of Sellers, Purchaser and Tenant at the Closing. Subsequent final adjustments and payments shall be made in cash or other immediately available funds as soon as practicable after the Closing Date, and in any event within ninety (90) days after the Closing Date (provided that such prorations, Seller ninety day period shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than be extended up to an additional thirty (30) days prior after the necessary information becomes available for the parties to calculate any necessary adjustments relating to payments of real estate taxes or special assessments), based upon an accounting performed by the Operator and acceptable to Sellers, Purchaser and Tenant. In the event the parties have not agreed with respect to the Proration Dateadjustments required to be made pursuant to this Section 9.1 within such 90 day period, and upon application by any such party, a certified public accountant reasonably acceptable to the unfixed meter charge and parties to such disputed adjustment shall determine any such adjustments which have not theretofore been agreed to between such parties. The charges of such accountant shall be borne equally by the unfixed sewer rent, if any, based thereon parties to such disputed adjustment; provided that Tenant shall not be responsible for the intervening time charges of such accountant unless Tenant made an application to resolve such dispute. All adjustments to be made as a result of the final results of the adjustments shall be apportioned on paid to the basis of party entitled to such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated at adjustment within thirty (30) days after the Closing on the basis of the most recent readingfinal determination thereof.
(db) Periodically recurring governmental fees for Permits The provisions of this Section 9.1 shall be prorated between Purchaser and Seller as of survive the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration DateClosing.
(e) Such other items as are customarily apportioned between buyers and sellers of real property of a type similar to the Premises in the State of New York shall be adjusted between Purchaser and Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Retirement Properties Inc)
Apportionments. SS' 11.01.Section 10.01 The following apportionments shall be made between the parties at the Closing and shall be computed as of 11:59 P.M. on the day prior to the Closing Date:
(a) For purposes of this Section 11real estate taxes, the "Proration Date" shall be 11:59 p.m. water charges, and sewer charges, if any, on the day preceding the Closing so that Purchaser shall be deemed to be the owner basis of the Premises and therefore entitled to any revenues and responsible fiscal period for any expenses for which assessed (except that if there is a water meter on the entire day upon which the Closing occurs. Seller and Purchaser shall prepare a schedule of adjustments ("Schedule of Adjustments") prior to the Proration Date. Such adjustments, if and to the extent known and agreed upon as of the Closing, shall be (i) paid by Purchaser to Seller Property than apportionment at the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit to the Purchaser). Any such adjustments not determined or not agreed upon as of the Closing shall be allocated based on a fair and equitable basis as soon as invoices or bills are availablethe last available reading, with final adjustments subject to be made as soon as reasonably possible adjustment after the Closing when the next reading is available);
(b) fuel, if any.
(c) If, at the Closing, the Premises shall be affected by an assessment which is or may become payable in annual installments, all installments allocable to the period following the Closing shall be Purchaser's responsibility.
Section 10.02 If the Closing Date or the stated expiration date of the Lease, as the case may be, shall occur before a new tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the old tax rate for the preceding period applied to the latest assessed valuation. Seller and Purchaser Promptly after the new tax rate is fixed, the apportionment of real estate taxes shall each act be recomputed. Any discrepancy resulting from such re-computation shall be promptly and reasonably in connection with determining the prorations under this Section 11. This Section 11 corrected, which obligation shall survive the Closing.
(b) All Section 10.03 Seller is currently disputing a charge of approximately $24,559.70 on its real estate taxes (including business improvement district charges, if any) on the Premises shall be prorated based on the actual current tax bill▇▇▇▇ that relates to sewer charges assessed in or about 2012. If such tax bill has dispute is not ▇▇▇ been received ▇▇ ▇he Proration Dateresolved prior to Closing, then Purchaser and shall execute such documentation as is required to enable Seller shall estimate to continue to contest such charge and, if Purchaser should receive a refund of all or part of such charge after the Closing by way of refund or reduction or credit against real estate taxes based upon Purchaser's taxes, Purchaser shall promptly so advise Seller and Seller's good faith estimate of the change in pay Seller the amount of the previous year's tax billsuch refund, and Purchaser and Seller ▇▇▇▇l after the Closing reprorate the real estate taxes as soon as the actual current tax bill is available. All amounts ▇▇▇▇ble for real estate taxes accruing on reduction or prior to the Proration Date credit.
Section 10.04 Any errors or omissions in computing apportionments shall be promptly corrected, which obligations shall survive the obligation of Seller, and all amounts payable for real estate taxes accruing after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by SellerClosing.
(c) All utility service charges and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating Section 10.05 The provisions of this Article 10 shall survive the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basis. Seller shall be responsible for all such expenses that are payable or accrue on or prior to the Proration Date, and Purchaser shall be responsible for all such expenses which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to the period on or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate to the period prior to the Proration Date. To aid in such prorations, Seller shall obtain billings and meter readings as ▇▇ ▇ ▇▇▇e that is no earlier than thirty (30) days prior to the Proration Date, and the unfixed meter charge and the unfixed sewer rent, if any, based thereon for the intervening time shall be apportioned on the basis of such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated at the Closing on the basis of the most recent readingClosing.
(d) Periodically recurring governmental fees for Permits shall be prorated between Purchaser and Seller as of the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior to the Proration Date and Purchaser shall be responsible for all amounts which accrue after the Proration Date.
(e) Such other items as are customarily apportioned between buyers and sellers of real property of a type similar to the Premises in the State of New York shall be adjusted between Purchaser and Seller.
Appears in 1 contract
Apportionments. SS' 11.01The Partnership and the Contributor agree that, at and as of the date of the Closing, all normal and customarily proratable items, including, without limitation, real estate taxes, personal property taxes, utility bills (except as hereinafter provided), invoiced rents and other income, and operating contract payments shall be prorated with respect to the Property as of the date of the Closing, with Contributor being charged and credited for all of the same relating to the period up to the date of the Closing and the Partnership being charged and credited for all of the same relating to the period on and after the date of the Closing. All apportionments hereunder shall be settled in OP Units or as otherwise agreed by the parties as set forth in the Settlement Statement to be delivered at the Closing.
(a) To the extent not covered by any tax escrows held by the Property Owner or the Lender, all real estate taxes, and items of income and expense with respect to the Property shall be prorated between the Contributor and the Partnership based upon amounts due and payable, on an accrual basis, in the calendar year in which the Closing occurs except as set forth below. All prorations of real estate taxes shall be based upon the most recent available full year’s tax bills, and, if applicable, subject to re-proration when the actual tax ▇▇▇▇ for the applicable fiscal tax year in which the Closing occurs is received. All escrow and reserve accounts (including without limitation, all capital improvement reserves and taxes and insurance escrows) held by the Lender in connection with the Loan with respect to the Property and those held by the Contributor shall follow the Property, and shall be prorated and credited to the Contributor in the manner set forth on the Settlement Statement. Notwithstanding the foregoing sentence, the reserve accounts held by the Lender which were required by the Lender to be deposited in connection with the construction of the Improvements shall not be prorated, but rather upon the Lender’s release of the funds held in such construction-related reserve accounts in accordance with the Loan Documents, all such funds shall be paid to the Contributor.
(b) Invoiced rents and other charges, other than for Tenants who owe Delinquent Amounts (as hereinafter defined), shall be prorated. Prepaid rents and other charges shall be credited to the Partnership. Without limiting the foregoing, rent and all other sums which are due and payable to the Property Owner by any Tenant, whether or not collected as of the Closing shall be adjusted, but the Partnership shall not be required to cause the rent and other sums for the period prior to Closing to be remitted to the Contributor if, as, and when collected. At the Closing, the Contributor’s Representative shall deliver to the Partnership a schedule of all rent, charges and other amounts payable by Tenants after the Closing with respect to which the Contributor is entitled to receive a share under this Agreement, and any amount due and owing to the Property Owner before the Closing by Tenants under the Leases which are unpaid on the date of the Closing (such amounts are collectively referred to herein as the “Delinquent Amounts”). Rental and other payments received by the Partnership from Tenants shall first be applied toward the Partnership’s actual out-of-pocket costs (including reasonable attorneys’ fees) of collection, and then toward the payment of current rent and other charges owed to the Partnership for periods after the Closing, and any excess monies received shall be applied toward the payment of Delinquent Amounts; provided, however, that any rent received by the Partnership from Tenants who owe Delinquent Amounts during the month in which the Closing occurs shall first be applied to the payment of such Tenants’ Delinquent Amounts, if any, with respect to the month in which the Closing occurs, and not toward the payment of rent and other charges for previous or subsequent months. The Partnership may not waive any Delinquent Amounts or modify a Lease so as to reduce amounts or charges owed under Leases for any period in which the Contributor is entitled to receive a share of charges or amounts, without first obtaining the written consent of the Contributor. If a Delinquent Amount due the Contributor is not paid by a Tenant within the later of (i) sixty (60) days after the Closing or (ii) sixty (60) days after billing therefor, the Contributor shall have the right to attempt to effect collection by litigation or otherwise so long as the Contributor does not take any action which would affect such Tenant’s right to occupy its leased premises or terminate its Lease. With respect to Delinquent Amounts owed by Tenants that are no longer Tenants of the Real Property as of the date of Closing, the Contributor shall retain all rights relating thereto.
(c) To the extent security deposits, pet deposits or other deposits paid by Tenants under Leases are held in the name of the Property Owner, such deposits shall continue to be held by the Property Owner so as to be available to the Property Owner after the Closing, or if such deposits are held by the Existing Manager, all such deposits shall be transferred to the applicable Property Owner or to the Partnership’s property manager prior to the Closing. There shall be no apportionment or proration of any insurance premiums or costs or expenses related to the employment of any persons at the Property.
(d) The following items shall also be prorated between the Contributor and the Partnership as of the Closing:
(i) Fuel, water and sewer service charges, and charges for gas, electricity, telephone and all other utility and fuel charges, as well as all deposits to utility companies, governmental entities or any other person shall be prorated ratably on the basis of the last ascertainable bills (and reprorated upon receipt of the actual bills or invoices) to the extent not paid directly by Tenants under their respective Leases unless final meter readings and final invoices can be obtained. To the extent practicable, the Contributor’s Representative shall cause meters for utilities to be read not more than one (1) day prior to the date of the Closing.
(ii) Assignable license and permit fees paid on an annual or other periodic basis.
(iii) Prepaid interest or other payments paid to the Lender under the Loan assumed or transferred as part of this transaction.
(iv) Cash then being held in the Property Owner (other than security deposits, as provided in Section 9.1(c) above) shall be prorated as of the Closing and the applicable prorated amount remaining at the Property shall be distributed to the Contributor immediately prior to the Closing.
(v) Such other items that are customarily prorated in transactions of this nature (including, without limitation, any utilities paid by the Property Owner under the Leases).
(e) For purposes of hereof, unless this Section 11Agreement terminates, the "Proration Date" shall be 11:59 p.m. on the day preceding the Closing so that Purchaser Partnership shall be deemed to be the owner of the Premises Contributed Entity and therefore the Property Owner and, therefore, entitled to any revenues the income from the Property and responsible for any the expenses of the Property for the entire day upon which the Closing occurs. Seller All such prorations shall be made on the basis of the actual number of days of the month which shall have elapsed as of the day of the Closing. To the extent information necessary to make such prorations is not available at the Closing or is determined to be inaccurate or incomplete after the Closing, the amount of such prorations shall be subject to adjustment in OP Units (or as otherwise agreed by the parties) after the Closing as and Purchaser when complete and accurate information becomes available. All prorations shall prepare a schedule otherwise be final. The Contributor and the Partnership agree to cooperate and use their best efforts to make such adjustments no later than sixty (60) days after the Closing as to all items except tax prorations, subject to mutual agreement to extend such sixty (60) day period, and with respect to tax prorations, the parties shall make such adjustments upon receipt of adjustments ("Schedule the actual tax bills covering the period in which the Closing occurs. Except as set forth in this Section 9.1, all items of Adjustments") income and expense for the period prior to the Proration Date. Such adjustments, if and to Closing will be for the extent known and agreed upon as account of the Closing, shall be (i) paid by Purchaser to Seller at Contributor and all items of income and expense for the Closing (if the prorations result in a net credit to Seller) or (ii) deducted from the Purchase Price at the Closing (if the prorations result in a net credit to the Purchaser). Any such adjustments not determined or not agreed upon as of the Closing shall be allocated period on a fair and equitable basis as soon as invoices or bills are available, with final adjustments to be made as soon as reasonably possible after the Closing. Seller and Purchaser shall each act promptly and reasonably in connection with determining the prorations under this Section 11. This Section 11 shall survive the Closing.
(b) All real estate taxes (including business improvement district charges, if any) on the Premises shall be prorated based on the actual current tax bill. If such tax bill has not ▇▇▇ been received ▇▇ ▇he Proration Date, then Purchaser and Seller shall estimate the real estate taxes based upon Purchaser's and Seller's good faith estimate of the change in the amount of the previous year's tax bill, and Purchaser and Seller ▇▇▇▇l after the Closing reprorate will be for the real estate taxes account of the Partnership, all as soon as determined by the actual current tax bill is availableaccrual method of accounting. All amounts ▇▇▇▇ble for real estate taxes accruing on or prior to the Proration Date shall be the obligation of Seller, and all amounts payable for real estate taxes accruing Bills received after the Proration Date shall be the obligation of Purchaser. Any delinquent taxes on the Premises shall be paid at the Closing by Seller.
(c) All utility service charges and fees for sewer, water and electricity, heat and air conditioning service, other utilities, elevator maintenance, taxes, other expenses incurred in operating the Premises that Seller reasonably and customarily pays, and any other costs incurred in the ordinary course of business of Seller in connection with the operation of the Premises, shall be prorated on an accrual basis. Seller shall be responsible for all such expenses that are payable or accrue on or prior to the Proration Date, and Purchaser shall be responsible for all such expenses which are payable or accrue after the Proration Date. Seller shall be credited with an amount equal to any prepaid expenses which relate to the period on expenses incurred, services performed or after the Proration Date. Purchaser shall be credited with an amount equal to any unpaid expenses which relate other amounts allocable to the period prior to the Proration DateClosing shall be paid by the Contributor.
(f) Amounts on deposit with utility companies shall be credited to the Contributor. To aid in such prorationsThe Contributor shall, Seller shall obtain billings from and meter readings after the Closing, at the Contributor’s sole cost and expense, have control over any ongoing tax appeals as ▇▇ ▇ ▇▇▇e to the Property that is no earlier than thirty (30) days were commenced prior to the Proration DateClosing and that pertain solely to the periods that the Contributor owned the Contributed Entity. The Contributor shall, as applicable, retain all proceeds or reductions obtained from such appeals or pay all additional taxes or delinquencies imposed for such periods. The Contributor shall keep the Partnership informed as to any such appeals and to the unfixed meter charge extent that ongoing tax appeals pertain to periods that include any period after the Closing or which are reasonably expected to result in higher tax assessment or payment, the Partnership shall be entitled to join in such appeal and/or pursue its own appeal, at the Partnership’s expense, from and after the unfixed sewer rent, if any, based thereon date of the Closing.
(g) The Contributor has disclosed to the Partnership that a certain letter of credit has been issued with respect to the Property which must remain in place for a period of fifteen (15) months after the final certificate of occupancy for the intervening time shall be apportioned Improvements is issued by the appropriate Governmental Authority. The Contributor agrees to pay the cost to maintain such letter of credit throughout the entire 15-month period. In order to facilitate the payment of such costs, the Partnership may elect to receive a credit on the basis of such last reading, provided that, if Seller is unable to obtain any such billings or meter readings prio▇ ▇▇ ▇▇▇sing then such charges and fees shall be prorated Settlement Statement at the Closing on in the basis estimated amount of the most recent readingcost to keep the letter of credit in place throughout the entire 15-month period, which amount shall be adjusted after the Closing to reflect the actual cost to maintain the letter of credit in place for such 15-month period. If the Partnership elects to receive a credit, then the Partnership shall pay the cost to keep the letter of credit in place for such 15-month period.
(dh) Periodically recurring governmental fees for Permits shall be prorated between Purchaser The parties acknowledge and Seller as agree that the gross fair market value of the Proration Date on an accrual basis. Seller shall be responsible for all amounts due thereunder which accrue on or prior portions of the Property treated as personal property under the Code is equal to the Proration Date tax basis in such personal property and Purchaser shall be responsible for all amounts which accrue after at the Proration DateClosing, the parties will reasonably agree on a fair market value allocation of value between the Land and Improvements.
(ei) Such other items as are customarily apportioned between buyers and sellers The provisions of real property of a type similar to this Section 9.1 shall survive the Premises in the State of New York shall be adjusted between Purchaser and SellerClosing.
Appears in 1 contract
Sources: Interest Contribution Agreement (Landmark Apartment Trust of America, Inc.)