Apportionments. (a) Expenses for power and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller and Buyer as of the Closing Date and the net amount thereof shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month. (b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which the same are assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occurs, the proration shall be made on the basis of the tax rate for the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned as of the Closing and the amount allocable to the period prior to the Closing shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the Closing.
Appears in 1 contract
Apportionments. 7.01 The following shall be apportioned with respect to the Property as of 12:01 a.m., on the day of closing, as if Purchaser were vested with title to the Property during the entire day upon which closing occurs:
(a) Expenses for power and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments levied against the Property;
(b) gas, electricity and "minimum"other utility charges for which Seller is liable, "fixed" or "base" rent due and payable under the Leases (includingif any, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall such charges to be prorated between Seller and Buyer as of the Closing Date and the net amount thereof shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, apportioned at closing on the basis of the fiscal most recent meter reading occurring prior to closing; and
(c) any other operating expenses or calendar year for other items pertaining to the Property which assessed and based on are customarily prorated between a three hundred sixty (360) day year purchaser and a thirty (30) day monthseller in the area in which the Property is located.
(bd) Real estate Notwithstanding the foregoing, Purchaser shall be responsible for all taxes and assessments, gas, electric and other utilities charge and all operating expenses or items pertaining to the Property during the period of its post-Closing possession, pursuant to a Surrender Agreement to be executed and delivered at the Closing.
7.02 Notwithstanding anything contained in the foregoing provisions:
(a) Any taxes paid at or prior to closing shall be prorated based upon the amounts actually paid. If taxes and assessments for the current year have not been paid before closing, Seller shall be prorated on charged at closing an amount equal to that portion of such taxes and assessments which relates to the basis of period before closing and Purchaser shall pay the fiscal taxes and assessments prior to their becoming delinquent. Any such apportionment made with respect to a tax year for which the same are assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is or assessed valuation, or both, have not yet been fixed for the tax period in which the Closing occurs, the proration shall be made on the basis of based upon the tax rate for and/or assessed valuation last fixed. To the preceding year applied to extent that the latest assessed valuation. After the real estate actual taxes and assessments are finally fixedfor the current year differ from the amount apportioned at closing, Buyer and Seller the parties shall make all necessary adjustments by appropriate payments between themselves following closing.
7.03 If on the date hereof the Property or any part thereof shall be or shall have been affected by a recalculation special assessment or assessments which are or may become payable in annual installments, of which the first installment is then a charge or lien, or has been paid, then for the purposes of this Agreement all the unpaid installments of any such assessment, including those which are to become due and proration of the same, and Buyer or Seller, as the case may bepayable after closing, shall make an appropriate payment be payable by the Purchaser at or subsequent to the other based on such recalculation. If Buyer shall receive any refund issued closing (subject, however, to Buyer, adjustment as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned as of the Closing and the amount allocable to the period prior to the Closing shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the Closingprovided in Section 7.01 hereof).
Appears in 1 contract
Apportionments. Representatives of the Purchaser, Tenant and the Seller shall make and perform any and all of the adjustments and apportionments which are appropriate and usual for a transaction of this nature, taking into account the applicable provisions of the Lease and this Agreement. 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 the Seller and the Purchaser at the applicable 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 (a90) Expenses for power days after the Closing Date, based upon an agreed accounting performed by representatives of the Seller, Tenant and utilities chargesthe Purchaser. In the event the parties have not agreed with respect to the adjustments required to be made pursuant to this Section 9.1 within such ninety-day period, prepaid expensesupon application by either party, sewer a certified public accountant reasonably acceptable to the Purchaser and water rents the Seller shall determine any such adjustments which have not theretofore been agreed to between the Seller and taxes, the Purchaser. The charges of such accountant shall be borne fifty percent (50%) by the Seller and fifty percent (50%) by the Purchaser. Seller shall pay the entire amount of the calendar year 1999 real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under after the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items bill for the Leases shall be prorated between Seller and Buyer as of such real estate taxes is recei▇▇▇ after the Closing Date and prior to the net amount thereof date such real estate taxes become delinquent. Seller shall be promptly paid pay (on or before the due date) that portion of the calendar year 2000 real estate taxes allocable (on a daily basis) to Buyer or Seller or credited to Buyerthe period commencing on January 1, as the case may be, as soon as practicable following 2000 and ending on the Closing Date butand Tenant shall, in any eventpursuant to the Lease, not later than 10 business days following pay (on or before the Closing Date, due date) that portion of the calendar year 2000 real estate taxes allocable (on a daily basis) to the period commencing on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which the same are assessed. If after the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occursand ending on December 31, the proration shall be made on the basis of the tax rate for the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned as of the Closing and the amount allocable to the period prior to the Closing shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the Closing2000.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Health Care Properties Inc)
Apportionments. Representatives of the Purchaser, Tenant and the Seller shall make and perform any and all of the adjustments and apportionments which are appropriate and usual for a transaction of this nature, taking into account the applicable provisions of the Lease and this Agreement. 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 the Seller and the Purchaser at the applicable 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 (a90) Expenses for power days after the Closing Date, based upon an agreed accounting performed by representatives of the Seller, Tenant and utilities chargesthe Purchaser. In the event the parties have not agreed with respect to the adjustments required to be made pursuant to this Section 9.1 within such ninety-day period, prepaid expensesupon application by either party, sewer a certified public accountant reasonably acceptable to the Purchaser and water rents the Seller shall determine any such adjustments which have not theretofore been agreed to between the Seller and taxes, the Purchaser. The charges of such accountant shall be borne fifty percent (50%) by the Seller and fifty percent (50%) by the Purchaser. Seller shall pay the entire amount of the calendar year 1999 real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under after the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items ▇▇▇▇ for the Leases shall be prorated between Seller and Buyer as of such real estate taxes is received after the Closing Date and prior to the net amount thereof date such real estate taxes become delinquent. Seller shall be promptly paid pay (on or before the due date) that portion of the calendar year 2000 real estate taxes allocable (on a daily basis) to Buyer or Seller or credited to Buyerthe period commencing on January 1, as the case may be, as soon as practicable following 2000 and ending on the Closing Date butand Tenant shall, in any eventpursuant to the Lease, not later than 10 business days following pay (on or before the Closing Date, due date) that portion of the calendar year 2000 real estate taxes allocable (on a daily basis) to the period commencing on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which the same are assessed. If after the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occursand ending on December 31, the proration shall be made on the basis of the tax rate for the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned as of the Closing and the amount allocable to the period prior to the Closing shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the Closing2000.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Health Care Properties Inc)
Apportionments. (a) Expenses for power The following are to be adjusted and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller and Buyer as of 11:59 PM on the day of the Closing Date (the "Apportiomnent Date"), and the net amount thereof shall be promptly paid added to Buyer (if such net amount is in Sellers" favor) or Seller deducted from (if such net amount is in Buyer's favor) the payment required pursuant to Paragraph 4 above:
(a) Real estate taxes (uniform fiscal year), water and sewer rents and charges, and all other fees, taxes and charges relating to or credited payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of uniform fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, bill or statement, or based on the most recently ▇▇▇ilable meter reading therefor; provided that no apportionment shall be made with respect to Buyer, as any of the case may be, as soon as practicable following foregoing that are payable directly by Tenants pursuant to their Leases. Metered utility charges for the period from the last reading date prior to the Closing Date butthrough the day of the Closing shall be apportioned on the basis of such last reading, in any event, not later than 10 business days but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date, . Unmetered water charges shall be apportioned on the basis of the fiscal or calendar year charges therefor for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which the same are assessedperiod in the preceding calendar year, but apply the current rate thereto. If the Closing Date shall occur either before an assessment is made or a the tax rate or assessed valuation is fixed for the tax period in which the Closing occursfixed, the proration apportiomnent of real estate taxes shall be made on upon the basis of the tax rate for the preceding year applied to the latest most recently applicable assessed valuation. After valuation of the real estate taxes Property, subject to further and assessments are finally fixed, Buyer and final adjustment when the tax rate and/or assessed valuation is fixed for the year in which the Closing takes place; and
(b) any other charges for which apportionment would be customary or appropriate.
(c) Seller shall make a recalculation be responsible for the payment of any special assessments (and proration of all installments thereof, whether or not the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, same are then payable) imposed with respect to taxes for the period Property on or prior to the Closing, the amount of such refund received by Buyer and Seller shall be apportioned as responsible for the payment of any special assessments (and all installments thereof, whether or not the Closing and the amount allocable same are then payable) imposed with respect to the period prior to the Closing shall be paid by Buyer to Seller within 10 days Property after such refund is received. The obligations of Seller under this paragraph shall survive the Closing.
(d) Any errors or omissions in computing the foregoing adjustments shall be corrected within a reasonable time following the Closing.
Appears in 1 contract
Apportionments. Except as provided in Section 3.4, the following shall be apportioned between the Buying Parties, on one hand, and Seller, on the other hand, as of the Effective Time (aon a per diem basis): (i) Expenses for power rents due from Seller under the Timberland Leases, Real Property Leases or Personal Property Leases; (ii) property and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes other non-Income Taxes and assessments in respect of the Purchased Assets and "minimum"any Timberland Leases or Real Property Leases for which Seller has the obligation to pay property or other non-Income Taxes and assessments (including property or other non-Income Taxes and assessments, "fixed" or "base" rent due and if any, payable under in respect of the Leases Timber LLC Assets), in each case, with respect to the Tax period in which the Effective Time occurs; (iii) revenue from the Real Property Leases, including, so called "escalation rent"without limitation, "additional rent"hunting and other recreational lease revenue; and (iv) payments, applying to the period beginning at the Effective Time, made by Seller in respect of any Timberland Lease, Real Property Lease, Personal Property Lease or "operating expenses" Purchased Contract (collectively, "Operating Expenses") and similar prepaid items for “Apportionments”). Not later than 60 days after the Leases shall be prorated between Seller and Buyer as later of the Closing Date or the date that all the applicable Tax rates have been fixed or the value assessments have been made with respect to all of the Timberlands for the applicable Tax periods in which the Effective Time occurs, Seller and Parent shall determine the Apportionments, and the net amount thereof Closing Purchase Price shall be promptly paid to Buyer increased or Seller or credited to Buyerdecreased, as applicable, by the case may be, as soon as practicable following the Closing Date but, in any event, not aggregate amount of such Apportionments. Any payment to be made pursuant to this Section 2.4 shall be made no later than 10 three business days following the Closing Date, on the basis determination of the fiscal aggregate amount of the Apportionments by wire transfer of immediately available funds to a bank account designated by the payee. Seller and Parent agree to furnish each other with such documents and other records as may be reasonably requested in order to confirm all Apportionment calculations made pursuant to this Section 2.4. Except for the estimated adjustment set forth above, there shall not be any proration of property Taxes or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes other non-Income Taxes and assessments and, as between the Buying Parties and Seller, the Buying Parties agree that they shall be prorated on the basis solely responsible for all such property Taxes and other non-Income Taxes and assessments due and payable in respect of the fiscal year for which Purchased Assets after the same are assessedClosing. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occursSeller and Parent cannot agree as to Apportionments, the proration shall dispute will be made on the basis of the tax rate for the preceding year applied resolved pursuant to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned as of the Closing and the amount allocable to the period prior to the Closing shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the ClosingSection 9.5.
Appears in 1 contract
Apportionments. The following apportionments shall be made between the parties at the Closing as of 11:59 pm local time at the Property on the day immediately prior to the Closing Date (the “Apportionment Date”) and the apportionate adjustments shall be made to the Purchase Price:
(a) Expenses for power real estate taxes, personal property taxes, special assessments and utilities vault charges, prepaid expensesif any, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller and Buyer as of the Closing Date and the net amount thereof shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which the same are levied, imposed or assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in , and regardless of which the Closing occurs, the proration same become a lien or are payable (which apportionments shall be made calculated on the basis of the most recent available tax rate for ▇▇▇▇ if the preceding year applied to current ▇▇▇▇ is not then available); [NOTE: TAX PRORATIONS IN ▇▇▇▇ COUNTY, IL ARE GENERALLY HANDLED DIFFERENTLY: provided, however, the latest assessed valuation. After the parties acknowledge that real estate taxes and assessments are finally fixedpaid one year in arrears in two installments, Buyer and Seller shall make with the final amount of taxes for a recalculation and proration of year being definitively determined when the same, and Buyer or Seller, as second installment ▇▇▇▇ for such year is issued in the case may be, shall make an appropriate payment to the other based on such recalculationsucceeding calendar year. If Buyer shall receive any refund the 2014 second installment ▇▇▇▇ is not issued to Buyer, as tenant, with respect to taxes for the period prior to the Closing, then the remaining unpaid 2014 taxes and the portion of 2015 taxes relating to the period from January 1, 2014 through the day immediately preceding the Closing shall be prorated at Closing based on the final 2013 taxes and shall be re-prorated when the 2014 second installment ▇▇▇▇ is issued based on the actual 2014 taxes, and then again re-prorated in 2016 when and at such time as each 2015 installment ▇▇▇▇ is issued. If the 2014 second installment ▇▇▇▇ is issued prior to the Closing, then Seller shall either pay such final installment prior to Closing or provide Buyer with a credit for the amount of such refund received by Buyer shall be apportioned as of the Closing second installment, and the amount allocable portion of 2015 taxes relating to the period from January 1, 2015 through the day immediately preceding the Closing shall be prorated at Closing based on the final 2014 taxes, and then again re-prorated in 2016 when and at such time as each 2015 installment ▇▇▇▇ is issued.]
(b) amounts which have been prepaid, accrued or are due and payable under the Contracts, Equipment Leases and Permits;
(c) all rental payments due for the month in which Closing occurs received by Seller from tenants under the Space Leases prior to the Closing Date. Buyer shall receive a credit for all assignable security deposits held by Seller under the Space Leases which are not transferred to Buyer, and Buyer thereafter shall be paid by Buyer obligated to Seller within 10 days after refund or apply such refund is received. The obligations deposits in accordance with the terms of Seller under this paragraph shall survive the Closingsuch Space Leases;
(d) prepaid advertising expenses;
(e) commissions of credit and referral organizations; and
(f) all other charges and fees customarily prorated and adjusted in similar transactions in [State: _________________].
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital Hospitality Trust, Inc.)
Apportionments. 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) Expenses With respect to each JV Property, all non-delinquent ad valorem real property and personal property general and special taxes and assessments for power such Property for the current assessment year of the applicable taxing authority in which the Closing Date occurs shall be prorated between the applicable Seller and utilities chargesPurchaser as of the Closing Date, prepaid expensesbased on their respective days of ownership of such Property during such assessment year. If the exact amount of taxes is not known at Closing, sewer the proration will be based on an amount equal to 100% of the prior assessment year’s taxes and water rents shall be adjusted and taxes, reconciled directly between the 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 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 assessments costs and "minimum"expenses related thereto. With respect to each JV Property, "fixed" Purchaser shall be solely responsible for, and shall report and pay, all state and local sales or "base" rent due 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 responsibility of Purchaser.
(b) With respect to each JV Property, rents and other payments under the Residency Agreements, the Leases (including, so called "escalation rent"without limitation, "additional rent"the Boca Ciega Bay Lease and the NY Subleases), and other proceeds of the ownership and operations of such JV Property (collectively, “Rents”) collected prior to 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 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 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 month in which the Closing occurs. 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 use commercially reasonable efforts (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 Closing. Following the Closing, Seller shall have the right to pursue remedies against any resident or tenant of the JV Properties with respect to pre-Closing deficiencies in payment of Rents.
(c) 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 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, gas, electricity, telephone and other 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, all obligations and liabilities (for services and materials ordered, or "operating expenses" 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, "Operating Expenses"“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 similar prepaid items for (ii) notwithstanding the Leases 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 Buyer 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 the net amount thereof Purchaser, Purchaser shall be promptly paid responsible for any severance pay due to Buyer 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 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 applicable 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 or credited to Buyershall receive a credit in the amount by which such aggregate capital expenditures exceed, as in each case, Seller’s budgeted aggregate capital expenditures for all Properties (excluding any capital expenditures on unit renovations at the case may beMaster Lease Properties) for calendar year 2021 prorated through October 31, as soon as practicable following 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 butis 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 eventcredit or payment thereunder unless the amount of such difference is equal to or exceeds $250,000, and Seller shall not later than 10 business days following 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, on the basis of the fiscal or calendar year for which assessed such prorations and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments apportionments shall be tentatively prorated on the basis of the fiscal year for which best data then available and re-prorated when the same are assessedinformation is available. If 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 shall occur either before an assessment is made or a tax rate is fixed for the tax period (except with respect to taxes and assessments, in which the Closing occurs, the case such re-proration shall be made on within sixty (60) days after the basis information necessary to perform such re-proration is available). All payments to be made as a result of the tax rate for final results of the preceding year applied adjustments shall be paid to the latest assessed valuationparty entitled to the same within fifteen (15) days after the final determination thereof. After Seller and Purchaser agree that none of the real estate taxes insurance policies relating to any Property will be assigned to Purchaser (and assessments are finally fixed, Buyer and each Seller shall make a recalculation and proration pay any cancellation fees or minimum earned premiums resulting from the termination of the samepolicies relating to its respective Property), and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer Purchaser shall be apportioned responsible for arranging for its own insurance as of the Closing Date.
(o) On the 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 Closing Date for residents at JV Properties (“Resident Trust Funds”) (which for the avoidance of doubt excludes refundable entrance fees), if any, 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 residents of the 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 allocable of the 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 period prior 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 made against Seller with respect to the Closing Resident Trust Funds with respect to any such 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 paid by Buyer subject to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the ClosingThreshold Amount.
(p) Except as expressly set forth in Section 7(l) and Section 7(m
Appears in 1 contract
Sources: Portfolio Acquisition Agreement (NorthStar Healthcare Income, Inc.)
Apportionments. (a) Expenses for power Except as otherwise expressly provided in this Agreement, all income and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under expenses of the Leases (including, so called "escalation rent", "additional rent", or "facilities operating expenses" collectively, "Operating Expenses") and similar prepaid items for on the Leases shall be prorated between Seller and Buyer as of Real Property with respect to the period prior to the Closing Date and the net amount thereof shall be promptly paid for the account of Seller, and all income and expenses of the facilities operating on the Real Property with respect to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following period from and after the Closing Date but, in any event, not later than 10 business days shall be for the account of Purchaser. The following specific apportionments shall be made between the parties at the Closing Dateas of 11:59 p.m. Arizona time on the day immediately prior to the Closing Date (the “Apportionment Time”):
10.1.1 real estate taxes, personal property taxes, special assessments and vault charges, if any, on the basis of the fiscal or calendar year period for which assessed and assessed; provided that if a tax ▇▇▇▇ for the current period has not yet been issued, the apportionment shall be based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate Seller’s estimate of such taxes and assessments shall be prorated based on the basis assessed value of the Property for the fiscal year for which is being assessed, or the same are assessedprior year’s tax ▇▇▇▇, in either case with a re-proration subsequent to Closing promptly after a current tax ▇▇▇▇ has been issued. If Any tax refunds or abatements in respect of periods prior to the Closing Date shall occur either before an assessment is made will belong to Seller, and any tax refunds or a tax rate is fixed for the tax period abatements in which respect of periods subsequent to the Closing occursDate will belong to Purchaser. Purchaser shall have the right to commence, the proration shall be made on the basis of the tax rate for the preceding year applied continue and settle any proceeding to the latest assessed valuation. After the contest real estate taxes and other assessments are finally fixedwhich include any period of time from and after the Closing Date; provided, Buyer however, that (a) to the extent that any proceeding includes any period of time before the Closing Date and the commencement, continuation or settlement of such proceeding could reasonably be expected to result in an increase in real estate taxes (including interest and penalties) and other assessments for which Seller would be liable, Purchaser shall not commence, continue or settle such proceeding without the prior express, written consent of Seller, which consent may be withheld in Seller’s sole and absolute discretion; and (b) Seller shall make a recalculation be entitled to that portion of any refund or tax benefit relating to the period occurring before the Closing after payment to Purchaser of all costs and proration expenses, including, without limitation, reasonable attorneys’ fees and disbursements, actually incurred by Purchaser in obtaining such refund or in obtaining any tax benefits including benefits based on decreases in assessed valuation;
10.1.2 water and sewer service charges and charges for gas, electricity, telephone and all other public utilities. If there are meters measuring the consumption of the samewater, and Buyer gas or electric current, Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period not more than one day prior to the ClosingApportionment Time, the amount if possible, shall endeavor to cause such meters to be read, and shall pay all utility bills for which Seller is liable upon receipt of such refund received by Buyer statements therefor. Purchaser shall be apportioned responsible for causing such utilities and services to be changed to its name effective as of the Closing Date and shall be liable for and shall pay all utility bills for services rendered from and after the Closing Date and Seller shall receive a credit at Closing for all utility deposits held by any utilities on the Closing Date that are transferred to Purchaser and provided such deposit remains on deposit for the benefit of Purchaser;
10.1.3 amounts which have been paid or are payable under the Contracts assigned to and assumed by Purchaser at Closing, except as otherwise set forth in Section 10.1.7 below, amounts which have been paid or are payable under the Property Leases, and amounts which have been received under the Space Leases;
10.1.4 prepaid operating and advertising expenses (excluding expenses for advertising that is aired, mailed or published on or after the Closing Date, which shall be Purchaser’s sole expense) to the extent the item for which such expense was incurred is transferred to Purchaser;
10.1.5 commissions of credit and referral organizations related to Bookings;
10.1.6 all other charges and fees customarily prorated and adjusted in similar transactions. Purchaser shall receive a credit at Closing for the face amount of any gift certificates or vouchers for free or reduced rate rooms (or if no face amount is given an amount equal to $150 per room per night), and 50% of the face amount of any gift certificates or vouchers for free or reduced food and beverage or other services which have been issued but not redeemed prior to Closing; and
10.1.7 from and after the Apportionment Time Purchaser shall pay for all work performed under any Construction Contracts assigned to and assumed by Purchaser at Closing, and at Closing, Seller provide to Purchaser a credit equal to the amount allocable of any retainage then held by or on behalf of Seller with respect to the period prior work to the Closing shall be paid by Buyer to Seller within 10 days after performed under any such refund is received. The obligations of Seller under this paragraph shall survive the ClosingConstruction Contract.
Appears in 1 contract
Apportionments. (a) Expenses for power Except as otherwise expressly provided in this Agreement, all income and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under expenses of the Leases (including, so called "escalation rent", "additional rent", or "facilities operating expenses" collectively, "Operating Expenses") and similar prepaid items for on the Leases shall be prorated between Seller and Buyer as of Real Property with respect to the period prior to the Closing Date and the net amount thereof shall be promptly paid for the account of Seller, and all income and expenses of the facilities operating on the Real Property with respect to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following period from and after the Closing Date but, in any event, not later than 10 business days shall be for the account of Purchaser. The following specific apportionments shall be made between the parties at the Closing Dateas of 11:59 p.m. Arizona time on the day immediately prior to the Closing Date (the “Apportionment Time”):
10.1.1 real estate taxes, personal property taxes, special assessments and vault charges, if any, on the basis of the fiscal or calendar year period for which assessed and assessed; provided that if a tax ▇▇▇▇ for the current period has not yet been issued, the apportionment shall be based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate Seller’s estimate of such taxes and assessments shall be prorated based on the basis assessed value of the Property for the fiscal year for which is being assessed, or the same are assessedprior year’s tax ▇▇▇▇, in either case with a re-proration subsequent to Closing promptly after a current tax ▇▇▇▇ has been issued. If Any tax refunds or abatements in respect of periods prior to the Closing Date shall occur either before an assessment is made will belong to Seller, and any tax refunds or a tax rate is fixed for the tax period abatements in which respect of periods subsequent to the Closing occursDate will belong to Purchaser. Purchaser shall have the right to commence, the proration shall be made on the basis of the tax rate for the preceding year applied continue and settle any proceeding to the latest assessed valuation. After the contest real estate taxes and other assessments are finally fixedwhich include any period of time from and after the Closing Date; provided, Buyer however, that (a) to the extent that any proceeding includes any period of time before the Closing Date and the commencement, continuation or settlement of such proceeding could reasonably be expected to result in an increase in real estate taxes (including interest and penalties) and other assessments for which Seller would be liable, Purchaser shall not commence, continue or settle such proceeding without the prior express, written consent of Seller, which consent may be withheld in Seller’s sole and absolute discretion; and (b) Seller shall make a recalculation and proration be entitled to that portion of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned as of the Closing and the amount allocable or tax benefit relating to the period prior to occurring before the Closing shall be paid after payment to Purchaser of all costs and expenses, including, without limitation, reasonable attorneys’ fees and disbursements, actually incurred by Buyer to Seller within 10 days after Purchaser in obtaining such refund is received. The obligations of Seller under this paragraph shall survive the Closing.or in obtaining any tax benefits including benefits based on decreases in assessed valuation; 10
Appears in 1 contract
Sources: Purchase and Sale Agreement
Apportionments. The 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) Expenses for power and utilities chargesTo the extent not covered by any tax escrows held by the Property Owner or the Lender, prepaid expenses, sewer and water rents and all real estate taxes, real estate taxes and assessments items of income and "minimum", "fixed" or "base" rent due and payable under expense with respect to the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases Property shall be prorated between Seller the Contributor and Buyer 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 Closing Date and Improvements shall not be prorated, but rather upon the net amount thereof Lender’s release of the funds held in such construction-related reserve accounts in accordance with the Loan Documents, all such funds shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day monthContributor.
(b) Real estate taxes Invoiced rents and assessments other charges, other than for Tenants who owe Delinquent Amounts (as hereinafter defined), shall be prorated 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 basis date of the fiscal year 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 same are assessed. If Closing occurs shall first be applied to the Closing Date shall occur either before an assessment is made or a tax rate is fixed for payment of such Tenants’ Delinquent Amounts, if any, with respect to the tax period 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 hereof, unless this Agreement terminates, the Partnership shall be deemed to be the owner of the Contributed Entity and the Property Owner and, therefore, entitled to the income from the Property and responsible for the expenses of the Property for the entire day upon which the Closing occurs. All such prorations shall be made on the basis of the tax rate for the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration actual number of days of the same, and Buyer 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 Seller, as the case may be, shall make an appropriate payment is determined to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to be inaccurate or incomplete after the Closing, the amount of such refund received by Buyer prorations shall be apportioned subject to adjustment in OP Units (or as otherwise agreed by the parties) after the Closing as and when complete and accurate information becomes available. All prorations shall 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 the actual tax bills covering the period in which the Closing occurs. Except as set forth in this Section 9.1, all items of income and expense for the amount period prior to the Closing will be for the account of the Contributor and all items of income and expense for the period on and after the Closing will be for the account of the Partnership, all as determined by the accrual method of accounting. Bills received after the Closing which relate to expenses incurred, services performed or other amounts allocable to the period prior to the Closing shall be paid by Buyer the Contributor.
(f) Amounts on deposit with utility companies shall be credited to Seller within 10 days after such refund is receivedthe Contributor. The obligations Contributor shall, from and after the Closing, at the Contributor’s sole cost and expense, have control over any ongoing tax appeals as to the Property that were commenced prior to the Closing 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 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 date of Seller 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 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 Settlement Statement at the Closing in the estimated amount of the cost 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.
(h) The parties acknowledge and agree that the gross fair market value of the portions of the Property treated as personal property under the Code is equal to the tax basis in such personal property and at the Closing, the parties will reasonably agree on a fair market value allocation of value between the Land and Improvements.
(i) The provisions of this paragraph Section 9.1 shall survive the Closing.
Appears in 1 contract
Sources: Interest Contribution Agreement (Landmark Apartment Trust of America, Inc.)
Apportionments. (a) Expenses for power and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall 6.1. The following are to be prorated between Seller and Buyer apportioned as of the Closing Date Date:
(i) Real property taxes and assessments (including, without limitation, any assessments relating to Permitted Exceptions, improvement district assessments or similar charges), personal property taxes, water and other utility charges and sewer taxes not otherwise payable directly to the net amount thereof shall be promptly paid taxing authority by any tenant under a Lease. Seller and Purchaser each agree to Buyer or deliver to the other, as appropriate, the required portion of any funds received by Seller or credited to BuyerPurchaser, as the case may be, as soon as practicable following in order to effectuate the foregoing. Anything in the foregoing or elsewhere in this Agreement to the contrary notwithstanding, it is understood and agreed that if the Closing shall take place prior to the date upon which Seller shall have paid the real property taxes and/or assessment for the calendar year in which the Initial Scheduled Closing Date but(or, if applicable, the Seller Adjourned Closing Date) falls, then, in lieu of any eventother sums which, not later than 10 business days following pursuant to any provision of this Agreement, might otherwise be payable (or credited) by Seller to Purchaser on account or in respect of the real property taxes and assessments allocable to the portion of calendar year - 4 - 2003 ending at 11:59PM on the calendar day immediately preceding the Closing Date, Seller shall (aa) pay (or credit) to Purchaser the amount of any and all estimated tax payments theretofore received by Seller from tenants of the Shopping Center, and (bb) pay (or credit) to Purchaser an amount equal to the product computed by multiplying (x) $54.79 per day (i.e., $20,000 DIVIDED BY 365 days), by (y) the number of calendar days which shall have elapsed between January 1, 2003 and the Closing Date, and (cc) assign to Purchaser any and all rights which Seller may have to recover other payments on account of such taxes and assessments from tenants of the Shopping Center. Seller and Purchaser acknowledge that a fee in the approximate amount of $23,000.00 is payable to the tax consultant (the "consultant") who secured a reduction in the Shopping Center's 2003 assessed valuation for real property taxes. Fifty percent (50%) of the consultant's fee (i.e., approximately $11,500.00) shall be paid by Seller prior to Closing, and Seller shall provide Purchaser with proof of such payment at or prior to Closing. Purchaser agrees that to the extent that Purchaser shall receive payment for same from the tenants of the Shopping Center, Purchaser shall reimburse Seller for the portion of the consultant's fee paid by Seller, such reimbursement to be made by Purchaser to Seller on the basis earlier of March 15, 2004 or the date upon which Seller reconciles 2003 real property tax payments with the tenants of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day monthShopping Center. Purchaser agrees to make commercially reasonable efforts to collect said sum from those tenants of the Shopping Center who are obligated by their respective leases to contribute to such tax consultant's fee.
(bii) Fixed, additional and percentage rent, pylon and/or sign rents or charges, escrows, impounds and/or prepaid expenses and all other charges under the Leases, if, as and when collected in accordance with SECTION 6.6 hereof (all of the foregoing being collectively referred to as "RENTS").
(iii) Charges under the Service Contracts.
(iv) License, permit and inspection fees.
(v) Deposits, if any, on account with utility companies servicing the Shopping Center (and Seller and Purchaser each agrees to cooperate to effectuate the transfer of any such deposits), provided that, at Seller's option, Seller will obtain a refund of any such utility deposits in effect and Purchaser shall provide its own utility deposits directly to the applicable utility companies.
(vi) All other items customarily apportioned in connection with the sale of similar properties similarly located.
6.2. Real estate taxes and assessments shall be prorated on the basis and as of the fiscal Closing Date based on the most current tax bills available, taking into account the maximum available discounts and any and all other exemptions available; PROVIDED, HOWEVER, in the event Seller is protesting or challenging any real property taxes or assessments, the benefits of any such challenge or protest shall be shared pro rata, in cash, after expenses, between the parties for 2003 taxes provided a claim is made pursuant to this SECTION 6.2 by the Seller or Purchaser within one (1) year for which from the same are assessed. Closing Date.
(i) If the Shopping Center or any part thereof shall be or shall have been affected by any bond district, facilities district or special assessment prior to the Closing Date, such portion of such bond district, facilities district or special assessment due and relating to the period of time prior to the Closing Date shall occur either before an be paid by Seller and such portion of such bond district, facilities district or special assessment due or relating to the period of time from and after the Closing Date shall be paid by Purchaser. If any bond district, facilities district or special assessment on the Shopping Center is made or a tax rate is fixed payable in installments, then the installment for the tax current period in which shall be prorated (with Purchaser assuming the obligation to pay any installments due from and after the Closing occursDate) (it being agreed that if there is a dispute as to the amount or the obligations of the parties under this CLAUSE (i) then at Seller's option the Closing shall nevertheless take place, however there shall be withheld from Seller's portion of the Closing Funds an amount equal to the amount in dispute as reasonably determined by Purchaser, which amount shall be held by Escrow Agent in escrow pursuant to instructions of the parties.
(ii) If the Shopping Center or any part thereof shall be or shall have been affected by any bond district, facilities district or special assessment on or subsequent to the Closing Date, whether or not payable in annual installments, the proration entire amount of such assessment shall be made paid by Purchaser.
6.4. If there are any water meters on the Shopping Center (other than meters measuring water consumption costs which are the obligation of tenants to pay under Leases), Seller shall furnish readings, and the unfixed water and sewer charges, if any, based thereon for the intervening time, shall be apportioned on the basis of the tax rate for the preceding year applied such last readings.
6.5. The amount of any unpaid real property taxes, assessments, personal property taxes, water charges and sewer charges which Seller is obligated to pay and discharge, with interest and penalties thereon to the latest assessed valuationClosing Date may, at the option of Seller, be allowed to Purchaser out of the balance of the Purchase Price, provided that official bills therefor with interest and penalties thereon are furnished by Seller at the Closing. After If there are any other liens or encumbrances which Seller is paying and discharging pursuant to SECTION 8 hereof, Seller may use any portion of the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration of Purchase Price to satisfy the same, provided that the Title Company shall be willing to insure Purchaser against collection of such liens and/or encumbrances, including interest and Buyer or Sellerpenalties, as in which event such liens and encumbrances shall not be objections to title.
(i) To the case may beextent that Purchaser receives Rents under Leases (including monthly payments of percentage rents and "pass throughs") after the Closing Date, shall make Purchaser shall, within ten (10) Business Days thereafter, render an appropriate payment accounting to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, Seller with respect to taxes for the period prior to the Closingthereto, the amount of such refund received by Buyer shall be apportioned as of the Closing and the amount allocable to the period prior to the Closing shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the Closing.and,
Appears in 1 contract
Sources: Sale Purchase Agreement (Inland Western Retail Real Estate Trust Inc)
Apportionments. 11.1 The following shall be apportioned between the parties as of 11:59 P.M. on the day immediately preceding the Closing Date:
(a) Expenses for power and utilities rents, additional rents, escalation charges, prepaid expensesinsurance reimbursements and other Tenant charges under the Leases (collectively, sewer the “Rents”), as and water rents and taxes, when collected;
(b) real estate taxes and assessments and "minimum"assessments, "fixed" or "base" rent due and payable under the Leases (includingif any, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller and Buyer as of the Closing Date and the net amount thereof shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which assessed (including without limitation real estate tax reimbursement obligations with respect to the same are assessed. If Tenants under the Leases); provided, however, that if, as of the Closing Date shall occur either before an assessment is made or a tax rate is fixed Date, real estate taxes have not yet been fully and finally allocated among the Units and the Remaining Unit (hereinafter defined) following the Conversion (hereinafter defined), then, at the Closing (i) real estate taxes for the tax period Units shall be adjusted and apportioned based upon the best available information in a manner reasonably acceptable to Seller and Purchaser and (ii) Seller and Purchaser shall enter into a Tax Lot Sharing Agreement in the form attached hereto as Exhibit H (the “Tax Lot Sharing Agreement”), with respect to the payment of real estate taxes relating to the Units and the Remaining Unit, which agreement shall be recorded by Seller, at Seller’s expense, against the Units and the Remaining Unit;
(c) water meter and frontage charges and sewer rents, if any, based upon a final water meter reading obtained by Seller, at Seller’s sole expense, dated not more than forty five (45) days prior to the Closing occurs, Date. Any adjustments for the proration period subsequent to such reading shall be made on a per diem basis based upon the most recent average daily usage, as shown by the special water meter reading. In the event the final water reading is not available as of the Closing Date, the Closing shall nevertheless proceed and the parties shall apportion the meter charges and sewer rents on the basis of the tax rate for last readings and bills received by Seller and the preceding year applied to same shall be appropriately readjusted after the latest assessed valuation. After Closing on the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration basis of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment next subsequent bills (with Seller being obligated to the other based on pay all such recalculation. If Buyer shall receive any refund issued utility charges pertaining to Buyer, as tenant, with respect to taxes for the period prior to the Closing, and Purchaser being obligated to pay all such charges pertaining to the amount of such refund received by Buyer period thereafter). Notwithstanding the foregoing, if water and sewer charges shall be apportioned the responsibility of the Tenants under the Leases, shall be payable directly to the Department of Environmental Protection by such Tenants, and if such Tenants shall not then be in monetary default under their respective Leases, then the same shall not be adjusted between Seller and Purchaser at Closing;
(d) [Intentionally Deleted]
(e) charges for all utility services supplied to the Premises (including, without limitation, water, gas, steam and electricity) (other than utilities that are the direct responsibility of Tenants under Leases in effect as of the Closing Date);
(f) common charges of the Condominium with respect to the Premises; and
(g) business improvement district charges and other governmental and quasi-governmental taxes, fees, assessments and charges;
11.2 Except as expressly provided to the amount allocable contrary herein, all apportionments and adjustments shall be made in accordance with the customs and practice of the Real Estate Board of New York.
11.3 If any past due Rents shall be owing by any Tenant on the Closing Date, Purchaser and Seller agree that the first moneys received by Purchaser from the respective Tenants owing past due Rents, net of the reasonable out-of-pocket costs of collection, shall be applied in the following order of priority: (a) first, to the month in which the Closing occurred; (b) then, to the month immediately preceding the month in which the Closing occurred; (c) then, to any month or months following the month in which the Closing occurred; and (d) then to the period prior to the month preceding the month in which the Closing occurred. All such monies received by Purchaser for such past due rentals shall be paid by Buyer held in trust for Seller, and Purchaser agrees to remit forthwith to Seller within 10 days the amount of such past due rentals to which Seller is entitled, as and when so collected, together with a reasonable accounting of the amounts collected and the collection costs. In no event shall Seller be permitted to ▇▇▇ the Tenants to collect any rent arrears for so long as such Tenants remain in possession. Purchaser shall use reasonable efforts (including litigation, to the extent reasonably necessary) to collect arrears in the payment of rent after such refund is received. The obligations the Closing, and Purchaser shall not consent to the release or waiver of any arrears without the consent of Seller under (which shall not be unreasonably withheld).
11.4 In the event that any of the Tenants have deposited rent securities with Seller pursuant to the terms of their respective Leases (including letters of credit in lieu of cash security deposits), Seller will transfer and/or assign to Purchaser such security deposits together with originals of the letters of credit on the Closing Date. Seller shall not apply any portion of the security deposits listed on Schedule C against any Tenant default subsequent to the date of this paragraph shall survive Agreement unless and until the ClosingTenant has vacated the Premises.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital New York Recovery Reit Inc)
Apportionments. 11.1 The following shall be apportioned between the parties as of 11:59 P.M. on the day immediately preceding the Closing Date:
(a) Expenses for power and utilities rents, additional rents, escalation charges, prepaid expensesinsurance reimbursements and other Tenant Charges under the Lease (collectively, sewer the "Rents"), as and water rents and taxes, when collected;
(b) real estate taxes and assessments and "minimum"assessments, "fixed" or "base" rent due and payable under the Leases (includingif any, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller and Buyer as of the Closing Date and the net amount thereof shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which assessed (including without limitation real estate tax reimbursement obligations with respect to the Tenant under the Lease). Notwithstanding the foregoing, if real estate taxes shall be the responsibility of Tenant under the Lease, and if Tenant shall not then be in monetary default under the Lease, then the same shall not be adjusted between Seller and Purchaser at Closing (other than reimbursement and adjustment obligations related to payments made to or by Seller as landlord under the Lease);
(c) water meter and frontage charges and sewer rents, if any, based upon a final water meter reading obtained by Seller, at Seller's sole expense, dated not more than forty five (45) days prior to the Closing Date. Any adjustments for the period subsequent to such reading shall be made on a per diem basis based upon the most recent average daily usage, as shown by the special water meter reading. In the event the final water reading is not available as of the Closing Date, the Closing shall nevertheless proceed and the parties shall apportion the meter charges and sewer rents on the basis of the last readings and bills received by Seller and the same shall be appropriately readjusted after the Closing on the basis of the next subsequent bills (with Seller being obligated to pay all such utility charges pertaining to the period prior to Closing, and Purchaser being obligated to pay all such charges pertaining to the period thereafter). Notwithstanding the foregoing, if water and sewer charges shall be the responsibility of Tenant under the Lease, and if Tenant shall not then be in monetary default under the Lease, then the same shall not be adjusted between Seller and Purchaser at Closing.
(d) vault taxes or charges, if any, unless same shall be the responsibility of Tenant under the Lease;
(e) value of fuel stored on the Premises, if any, at the price then charged by Seller's supplier, including any taxes, based upon a reading obtained by Seller not more than three (3) days prior to the Closing, unless same shall be the responsibility of Tenant under the Lease; and
(f) business improvement district charges and other governmental and quasigovernmental taxes, fees, assessments and charges, unless same shall be the responsibility of Tenant under the Lease (other than reimbursement and adjustment obligations related to payments made to or by Seller as landlord under the Lease);
11.2 Except as expressly provided to the contrary herein, all apportionments and adjustments shall be made in accordance with the customs and practice of the Real Estate Board of New York.
11.3 If any past due rent or additional rent shall be owing by Tenant on the Closing Date, Purchaser and Seller agree that the first moneys received by Purchaser from the Tenant, net of the reasonable out-of-pocket costs of collection, shall be applied in the following order of priority: (a) first, to the month in which the Closing occurred; (b) then, to any month or months following the month in which the Closing occurred; (c) then, to the month immediately preceding the month in which the Closing occurred; and (d) then, to the period prior to the month immediately preceding the month in which the Closing occurred. All such monies received by Purchaser for such past due rentals shall be held in trust for Seller, and Purchaser agrees to remit forthwith to Seller the amount of such past due rentals to which Seller is entitled, as and when so collected, together with a reasonable accounting of the amounts collected and the collection costs. In no event shall Seller be permitted to s▇▇ the Tenant to collect any rent arrears. Purchaser shall use reasonable efforts (but not litigation) to collect arrears in the payment of rent after the Closing, and Purchaser shall not consent to the release or waiver of any arrears without the consent of Seller (which shall not be unreasonably withheld).
11.4 Seller is hereby authorized, but is not obligated, to continue any proceedings for reduction of the assessed valuation of the Premises that are assessedpending on the Closing Date and (with respect to any such proceedings for tax years prior to the tax year in which the Closing Date shall occur) to settle or compromise the same in Seller's sole discretion. If Any settlement or compromise in connection with such proceedings brought with respect to the tax year in which the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occurs, the proration shall be made on by Seller in consultation with, and with the basis consent of, Purchaser (which consent shall not be umeasonably withheld or delayed). If a tax refund shall be obtained by reason of an adjustment of the tax rate for the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration valuation of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment Premises attributable to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the a period prior to the ClosingClosing Date, the same shall be the property of Seller (less the reasonable costs of collection, including attorneys and accounting fees). If any such refund shall be obtained for a period including the Closing Date, the amount of such refund received by Buyer (less the cost of obtaining the same, including, without limitation, reasonable attorneys' and accounting fees) shall be apportioned as according to length of the Closing respective portions of such period during which each party owned the Premises and the amount allocable subject to adjustment and apportionment pursuant to the period prior Lease. If any such refund or portion thereof to the Closing which Purchaser shall be entitled as hereinbefore provided shall be paid by Buyer to Seller, Seller within 10 days after such refund is received. shall receive the same as trust funds for the benefit of Purchaser and shall forthwith remit the same thereto.
11.5 The obligations terms, covenants and conditions of Seller under this paragraph Article 11 shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital New York Recovery Reit Inc)
Apportionments. Except as otherwise expressly provided in this Agreement, all income and expenses of the Hotel with respect to the period prior to the Closing Date shall be for the account of Hotel Seller, and all income and expenses of the Hotel with respect to the period from and after the Closing Date shall be for the account of Purchaser. The following specific apportionments shall be made between the parties at the Closing as of 11:59 p.m. on the day immediately prior to the Closing Date (the “Apportionment Date”).
(a) Expenses for power real estate taxes, personal property taxes, special assessments and utilities vault charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller and Buyer as of the Closing Date and the net amount thereof shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Dateif any, on the basis of the fiscal or calendar year period for which assessed and assessed; provided that if a tax ▇▇▇▇ for the current period has not yet been issued, the apportionment shall be based on the prior year’s tax ▇▇▇▇ with a three hundred sixty (360) day year re-proration subsequent to Closing promptly after a current tax ▇▇▇▇ has been issued. The parties acknowledge that the Hotel and a thirty (30) day month.the Land are not assessed for real estate taxes separately from other property owned by the Land Seller; therefore, the parties agree that the share of real estate taxes fairly allocated to the Hotel and the Land for purposes of the Closing and Pro-Ration Statement shall be agreed upon by the parties before the end of the Feasability Period. At the request of either party to this Agreement, the other party shall cooperate, at no cost to itself, with any application for tax refunds or abatements for the Property. Any tax refunds or abatements in respect of periods prior to the Closing Date will belong to Seller;
(b) Real estate taxes water and assessments shall be prorated on the basis of the fiscal year sewer service charges and charges for which the same are assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occursgas, the proration electricity, telephone and all other public utilities (provided that no adjustment shall be made for unmetered gas or fuel oil stored on the basis Land, all of which shall be transferred with the tax rate for Hotel at no additional cost to Purchaser). If there are meters measuring the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixedconsumption of water, Buyer and Seller shall make a recalculation and proration of the samegas or electric current, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period not more than one day prior to the Apportionment Date, shall cause such meters to be read, and shall pay all utility bills for which Seller is liable upon receipt of statements therefor; where there are no such meters, or where the applicable utility is unable or unwilling to read the meters prior to Closing, the amount of such refund received by Buyer charges for utilities shall be apportioned between the parties based upon the number of days in the then current billing period before and after the Apportionment Date. Purchaser shall be responsible for causing such utilities and services to be changed to its name effective as of the Closing Date and the amount allocable to the period prior to shall be liable for and shall pay all utility bills for services rendered from and after the Closing Date;
(c) amounts which have been paid or are payable under the Service Contracts, Equipment Leases and Space Leases assigned to and assumed by Purchaser at Closing;
(d) Advance Deposits and other amounts received by Seller (whether paid in cash or by credit card) in respect of Rooms Agreements and Bookings to be fulfilled on or after the Closing Date;
(e) prepaid operating and advertising expenses;
(f) commissions of credit and referral organizations related to bookings for which Purchaser shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the Closingreceive payment;
(g) outstanding gift certificates; and
(h) all other charges and fees customarily prorated and adjusted in similar transactions.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Apportionments. Except as otherwise expressly provided in this Agreement, all income and expenses of the Hotel with respect to the period prior to the Closing Date shall be for the account of Hotel Seller, and all income and expenses of the Hotel with respect to the period from and after the Closing Date shall be for the account of Purchaser. The following specific apportionments shall be made between the parties at the Closing as of 11:59 p.m. on the day immediately prior to the Closing Date (the “Apportionment Date”).
(a) Expenses for power real estate taxes, personal property taxes, special assessments and utilities vault charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller and Buyer as of the Closing Date and the net amount thereof shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Dateif any, on the basis of the fiscal or calendar year period for which assessed and assessed; provided that if a tax b▇▇▇ for the current period has not yet been issued, the apportionment shall be based on the prior year’s tax b▇▇▇ with a three hundred sixty (360) day year re-proration subsequent to Closing promptly after a current tax b▇▇▇ has been issued. The parties acknowledge that the Hotel and a thirty (30) day month.the Land are not assessed for real estate taxes separately from other property owned by the Land Seller; therefore, the parties agree that the share of real estate taxes fairly allocated to the Hotel and the Land for purposes of the Closing and Pro-Ration Statement shall be agreed upon by the parties before the end of the Feasability Period. At the request of either party to this Agreement, the other party shall cooperate, at no cost to itself, with any application for tax refunds or abatements for the Property. Any tax refunds or abatements in respect of periods prior to the Closing Date will belong to Seller;
(b) Real estate taxes water and assessments shall be prorated on the basis of the fiscal year sewer service charges and charges for which the same are assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occursgas, the proration electricity, telephone and all other public utilities (provided that no adjustment shall be made for unmetered gas or fuel oil stored on the basis Land, all of which shall be transferred with the tax rate for Hotel at no additional cost to Purchaser). If there are meters measuring the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixedconsumption of water, Buyer and Seller shall make a recalculation and proration of the samegas or electric current, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period not more than one day prior to the Apportionment Date, shall cause such meters to be read, and shall pay all utility bills for which Seller is liable upon receipt of statements therefor; where there are no such meters, or where the applicable utility is unable or unwilling to read the meters prior to Closing, the amount of such refund received by Buyer charges for utilities shall be apportioned between the parties based upon the number of days in the then current billing period before and after the Apportionment Date. Purchaser shall be responsible for causing such utilities and services to be changed to its name effective as of the Closing Date and the amount allocable to the period prior to shall be liable for and shall pay all utility bills for services rendered from and after the Closing Date;
(c) amounts which have been paid or are payable under the Service Contracts, Equipment Leases and Space Leases assigned to and assumed by Purchaser at Closing;
(d) Advance Deposits and other amounts received by Seller (whether paid in cash or by credit card) in respect of Rooms Agreements and Bookings to be fulfilled on or after the Closing Date;
(e) prepaid operating and advertising expenses;
(f) commissions of credit and referral organizations related to bookings for which Purchaser shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the Closingreceive payment;
(g) outstanding gift certificates; and
(h) all other charges and fees customarily prorated and adjusted in similar transactions.
Appears in 1 contract
Apportionments. (a) Expenses for power and utilities charges6.1. At the Closing, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid following items for the Leases shall be prorated apportioned between the parties as of 11:59 PM on the day preceding the Closing Date. Any errors in the apportionments pursuant to this Section 6 shall be corrected by appropriate re-adjustment between Seller and Buyer as Purchaser after the Closing, provided that notice of the Closing Date and the net amount thereof any such error, with supporting calculations, shall be promptly paid given by Purchaser to Buyer or Seller or credited by Seller to BuyerPurchaser, as the case may be, as soon as practicable following 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 after the Closing within a reasonable time when the charge or error is determined. All apportionments shall be made in the manner recommended by the Customs in Respect to Title Closings of the Real Estate Board of New York, Inc., and there shall be no other apportionments. The items to be apportioned are:
6.1.1. Payments in lieu of taxes (“PILOT”) and special assessments levied or imposed upon the Property in respect of the current fiscal year of the applicable taxing authority in which the Closing Date butoccurs (the "Current Tax Year"), on a per diem basis based upon the number of days in any event, not later than 10 business days following the Current Tax Year prior to the Closing Date, on the basis of the fiscal or calendar year for Date (which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated allocated to Seller) and the number of days in the Current Tax Year on and after the basis of the fiscal year for Closing Date (which the same are assessedshall be allocated to Purchaser). If the Closing Date shall occur either before an assessment is made or a the tax rate is fixed for the tax period in which the Closing occursCurrent Tax Year is fixed, the proration apportionment of PILOT payments and real estate taxes shall be made on upon the basis of the tax rate for the next preceding year fiscal period applied to the latest assessed valuation. After Promptly after the new tax rate is fixed for the fiscal period in which the Closing takes place, the apportionment of PILOT payments and real estate taxes shall be recomputed. If any assessments levied or imposed upon the Property are payable in installments, the installment for the Current Tax Year shall be prorated in the manner set forth above and assessments are finally fixed, Buyer Purchaser hereby assumes the obligation to pay any such installments due on and Seller shall make a recalculation and proration of after the same, and Buyer or Seller, as Closing Date. Purchaser acknowledges that (i) the case may be, shall make an appropriate payment Property is leased to the other based on such recalculation. If Buyer shall receive any refund issued to BuyerTown of Islip Industrial Development Agency, as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned (ii) PILOT payments may terminate as of the Closing Date, and (iii) the amount allocable Property will be restored to the real estate tax rolls and Purchaser shall be solely responsible for the payment of such restored real estate taxes as of the Closing Date.
6.1.2. To the extent reimbursable by existing tenants under the Leases, charges and fees due under contracts for the supply to the Property of heat, steam, electric power, gas and light and telephone, if any, in respect of the billing period of the related service provider in which the Closing Date occurs (the "Current Billing Period") on a per diem basis based upon the number of days in the Current Billing Period prior to the Closing Date (which shall be paid allocated to Seller) and the number of days in the Current Billing Period on and after the Closing Date (which shall be allocated to Purchaser) and assuming that all charges are incurred uniformly during the Current Billing Period (it being agreed that all deposits, if any, made by Buyer Seller as security under any such public service contracts shall be credited to Seller within 10 if such amounts remain on deposit after the Closing for the benefit of Purchaser; provided, however, that Seller shall be entitled in its sole discretion to receive a refund of such security deposits directly from any such service provider without credit to Purchaser).
6.1.3. Any charges or fees for transferable licenses and permits for the Property.
6.1.4. Fuel, if any, then stored at the Property on the basis of Seller’s last cost therefor, including sales tax, as evidenced by a current written statement of Seller's fuel oil supplier, which statement shall be conclusive as to quantity and cost.
6.1.5. [Intentionally omitted].
6.1.6. Rents and additional rents (collectively “Rents”) under the Leases on an “if, as and when” collected basis. Rents collected by Seller or Purchaser after the Closing Date from tenants who owe Rents for periods prior to the Closing Date shall be applied (a) first, in payment of Rents due for all periods following the Closing Date, (b) second, in payment of Rents due for the calendar month in which the Closing Date occurs, and (c) third, in payment of Rents due for all periods prior to the Closing Date. Each such amount, less reasonable collection costs, shall be adjusted and prorated as provided above. From and after the Closing Date, Purchaser shall use commercially reasonable efforts (but shall not be required to commence litigation or terminate the related Lease) to collect from tenants any Rents that are delinquent as of the Closing Date, and upon request shall deliver to Seller updated collection reports on a monthly basis. Seller shall reimburse Purchaser’s reasonable fees and expenses incurred in such collection efforts authorized by Seller.
6.1.7. All other items customarily apportioned in connection with the sale of commercial real estate in the State of New York.
6.1.8. If there are water meters on the Property, Seller shall endeavor to furnish readings to a date not more than thirty (30) days prior to the Closing Date, and the unfixed meter charges and the unfixed sewer rents, if any, based thereon for the intervening time shall be apportioned on the basis of such last readings. If Seller fails or is unable to obtain such readings, the Closing shall nevertheless proceed and the parties shall apportion the meter charges and sewer rents for the Property on the basis of the last readings and bills received by Seller for the Property, provided that (i) such last readings and bills are dated not more than sixty (60) days prior to the Closing Date, and the same shall be appropriately readjusted after such refund is receivedthe Closing on the basis of the next subsequent bills, and (ii) Seller deposits sufficient funds in escrow with the Title Company to insure payment after Closing.
6.2. The obligations provisions of Seller under this paragraph Section 6 shall survive the Closing; provided, however, that any re-prorations or re-apportionments shall be made as and when required under Section 6.1 above.
Appears in 1 contract
Apportionments. (a) Expenses for power and utilities chargesAt the Closing, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid following items for the Leases shall be prorated apportioned between the parties as of 11:59 PM on the day preceding the Closing Date. Any errors in the apportionments pursuant to this Section 4.04 shall be corrected by appropriate re-adjustment between Seller and Buyer as post-Closing, provided that notice of the Closing Date and the net amount thereof any such error, with supporting calculations, shall be promptly paid given by Buyer to Buyer or Seller or credited 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 following after the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal charge or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.error is determined. The items to be apportioned are:
(b) Real estate taxes 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 Property with respect to the current fiscal year of the 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 prorated allocated to Seller) and the number of days in the Current Tax Year on and after the basis of the fiscal year for Closing Date (which the same are assessedshall be allocated to Buyer). If the Closing Date shall occur either before an assessment is made or a the tax rate is fixed for the tax period in which the Closing occursCurrent Tax Year is fixed, the proration apportionment of real estate taxes shall be made on upon the basis of the tax rate for the next preceding year fiscal period applied to the latest assessed valuation. After 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 are finally fixed, Buyer 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 shall make a recalculation and proration be charged with or be responsible for any increase in the real estate taxes or assessments levied or imposed upon the Property resulting from the transfer of the sameProperty 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 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 or Sellershall reimburse Seller at Closing for its proportionate share of the costs of the tax appeal, as based upon the case may be, shall make an appropriate payment to fiscal year in which the other based on such recalculationClosing occurs. If Buyer shall receive In the event that the tax assessment is reduced for any refund issued to Buyer, as tenant, with respect to taxes for the period fiscal year prior to the Closingfiscal year in which the Closing occurs, the amount of such refund received by Buyer Seller shall be apportioned as of entitled to receive the Closing and the amount allocable to the period entire tax refund for such prior to the Closing shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the Closingfiscal year.
Appears in 1 contract
Sources: Sale Agreement (DVL Inc /De/)
Apportionments. (a) Expenses for power and utilities chargesThe following items shall be apportioned as of 11:59 p.m. of the day immediately preceding the Closing Date:
(i) Fixed rents, additional rents, percentage rents, prepaid expenses, sewer and water rents and taxes, real estate taxes all other sums and assessments and "minimum", "fixed" credits due or "base" rent due and payable under the Leases (including, so called "without limitation, operating expense escalation rent"payments and real estate tax escalation payments, "additional rent"if any, payable under the Leases), as and when collected, subject to part (b) of this Article;
(ii) Real estate taxes and personal property taxes (if any), on the basis of the calendar year for which the same are levied, imposed or "operating expenses" collectivelyassessed, "Operating Expenses"subject to part (e) of this Article;
(iii) Charges for water, sewer rents, electricity, steam, gas and similar prepaid items telephone, which are not metered or otherwise charged directly to tenants under the Leases; provided that if the consumption of any of such utilities is measured by meters, Seller on the Closing Date shall furnish a current reading of each meter; and provided, further, that if there is not a meter or if the current ▇▇▇▇ for any of such utilities has not been issued prior to the Closing Date, the charges therefor shall be adjusted on the basis of the charges for the Leases prior period for which bills were issued and shall be prorated between further adjusted when the bills for the current period are issued;
(iv) Fuel, if any, at Seller’s cost therefor (as determined by its fuel supplier);
(v) Amounts paid or payable pursuant to Executory Contracts that will be assumed by Purchaser pursuant to Section 4.4 above, provided same are not otherwise charged directly to the Tenants;
(vi) If on the Effective Date, the Property or any part thereof shall be affected by an assessment or assessments which are or may become payable in installments or a lump sum, Seller and Buyer shall be responsible for any installments which are then a charge or lien or which are otherwise certified as of the Closing Date and the net amount thereof Purchaser shall be promptly paid to Buyer responsible for all other installments of any such assessment;
(vii) Any amounts payable by parties under agreements affecting or Seller or credited to Buyerencumbering the Property including, without limitation, the Condominium Documents and the OEA; and
(viii) Such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the case may be, as soon as practicable following jurisdiction in which the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day monthProperty is located.
(b) Real If, on the Closing Date, any items of additional rent (including real estate taxes tax and assessments operating expense escalations) or percentage rent under the Leases (collectively, “Lease Obligations”) shall not have been ascertained and cannot be finalized prior to the Closing Date, then as soon as such information is available or ascertainable, but not later than one hundred and twenty (120) days after the end of the calendar year in which Closing occurs, Seller shall provide to Purchaser Seller's proposed reconciliation of Lease Obligations incurred and collections received for the period of Seller's ownership of the Property, including, without limitation, a final statement of (i) all operating expenses for the Properties which are actually paid by Seller and permitted to be passed through to Tenants, as applicable, with respect to the portion of the calendar year occurring before the Closing, together with copies of all documentation evidencing the foregoing, including copies of third-party invoices and copies of Seller’s books and records applicable thereto, and (ii) all estimated payments of operating expenses and/or common area maintenance costs under the Leases passed through to Tenants and received by Seller with respect to the reconciliation year (collectively, “Seller’s Proposed Reconciliation”). Purchaser shall review Seller’s Proposed Reconciliation and shall be prorated responsible for preparing Purchasers' reconciliation of Lease Obligations incurred and collections received for the period of Purchaser's ownership of the Property ("Purchasers' Proposed Reconciliation"), and reconciling same with Seller's Proposed Reconciliation. To the extent, there is a discrepancy between Seller's Proposed Reconciliation and Purchaser's Proposed Reconciliation, Purchaser and Seller shall cooperate to reconcile same within one hundred and eighty (180) days after the end of the calendar year in which Closing occurs. In the event that there are no discrepancies between Seller’s Proposed Reconciliation and Purchaser’s Proposed Reconciliation or in the event of any discrepancies, after reasonable agreement or a reasonable determination thereof, Seller and Purchaser shall be entitled to their pro rata share of any Lease Obligations based on the basis pro rata shares of Lease Obligations actually incurred by such party. If the amount of Lease Obligations collected by Seller for such year is less than Seller's pro rata share of the fiscal actual aggregate Lease Obligations collected for such year, then Purchaser shall promptly remit the difference to Seller only to the extent actually collected from the Tenants, but not otherwise. If the amount of Lease Obligations collected by Seller for the calendar year for in which the same Closing occurs exceeds the pro rata share of the actual aggregate Lease Obligations collected for such year, then Seller shall remit such excess amounts to Purchaser within thirty (30) days after such determination. Upon receipt of such excess amounts, Purchaser shall promptly remit the applicable portion to the particular Tenants entitled thereto.
(c) Seller or its affiliates and Purchaser shall maintain and make available to each other any books or records reasonably necessary for the adjustment of any item pursuant this Article.
(d) Any rents collected by Seller or Purchaser after the Closing Date shall be held in trust for the other party and applied as follows: (i) first, to rentals due and payable for the calendar month (or other applicable collection period) in which the Closing occurs, if unpaid, (ii) to any months (or periods) subsequent to the month (or period) in which the Closing Date occurs, until all such outstanding amounts are assessedpaid in full, and (iii) to any rents past due for periods preceding the calendar month (or period) in which the Closing Date occurs (the “Arrears”). Seller agrees to remit to Purchaser within ten (10) Business Days of receipt thereof any and all rents collected by Seller from and after the Closing Date, and Purchaser shall thereafter promptly remit to Seller any such rents as to which Seller is entitled as hereinbefore provided in this clause (d). With respect to any such rents collected by Purchaser for the account of Seller, Purchaser may deduct therefrom all reasonable third party expenses incurred in connection with the collection thereof. Purchaser shall have no obligation to commence any actions or proceedings to collect any such Arrears, declare a default under any Lease or against any tenant or incur any material cost in connection with the collection of Arrears. From and after the date hereof, Seller shall not be permitted to commence a lawsuit against existing Tenant for Arrears.
(e) If the Closing Date shall occur either before an assessment is made or a the real estate tax rate is fixed for the tax period in which the Closing occursfixed, the proration apportionment of real estate taxes shall be made on the basis of based upon the tax rate for the preceding year applied to the latest assessed valuation. After Final adjustment will be made upon the actual tax amount when determined. If Seller receives a refund of real estate taxes and assessments are finally fixed, Buyer and Seller relating to the Property it shall make a recalculation and proration promptly remit to Purchaser such refund (net of the samereasonable expenses incurred by Seller) for distribution by Purchaser to Tenants, as applicable, and Buyer any remaining balance applicable to Seller’s period of ownership shall be distributed by Purchaser to Seller. The parties agree to cooperate with each other to effectuate any such refunds.
(f) In the event that (i) any leasing commissions, tenant improvement allowances or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, inducement or incentive payments payable with respect to taxes the Leases (whether such payment obligation accrues before or after Closing) have not been paid by Seller prior to Closing, or (ii) a Tenant has made a payment to Seller in advance for more than one (1) month in advance or is entitled to any free rent or abatement of rent for the period from and after Closing, Purchaser shall be entitled to a credit against the Purchase Price equal to such amounts.
(g) For clarity, if any tenant is entitled to a credit against its rent payment in connection with prepaid rent or such tenant’s overpayment of rent or other sums owing to Seller under its Lease, to the extent such credit is not applied prior to the Closing, the amount of Purchaser shall receive a credit at Closing for such refund received by Buyer shall be apportioned as of the Closing and the amount allocable to the period prior to the Closing shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph shall survive the Closingamounts.
Appears in 1 contract
Apportionments. (a) Expenses for power and utilities chargesThe following items shall be apportioned as of 11:59 PM of the day immediately preceding the Closing Date as though Purchaser held title to the Properties during the Closing Date.
(i) Fixed rents, prepaid expensesadditional rents, sewer and water percentage rents and taxes, real estate taxes all other sums and assessments and "minimum", "fixed" credits due or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller month (or, with respect to additional rents, percentage rents and Buyer as of other sums, the applicable period relating thereto) in which the Closing Date and the net amount thereof occurs shall be promptly paid apportioned to Buyer or Seller or credited the extent collected under the Leases, subject to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis part (b) of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.this Section 8.1;
(bii) Real estate taxes and assessments shall be prorated personal property taxes (if any), on the basis of the fiscal year for which the same are levied, imposed or assessed. If , subject to part (c) of this Section 8.1;
(iii) Fees and charges under the Closing Date shall occur either before an assessment is made or a tax rate is fixed for Service Contracts that are being assigned to and assumed by Purchaser at the tax period in which the Closing occursClosing, the proration shall be made on the basis of the periods to which such Service Contracts relate; and
(iv) Charges for water, sewer rents, electricity, steam, and gas, which are not metered or otherwise charged directly to tenants by the provider; provided that if the consumption of any of such utilities is measured by meters, the Seller on the Closing Date shall furnish a current reading of each meter; and provided further, that if there is not a meter or if the current ▇▇▇▇ for any of such utilities has not been issued prior to the Closing Date, the charges therefor shall be adjusted on the basis of the charges for the prior period for which bills were issued and shall be further adjusted when the bills for the current period are issued.
(b) If any additional rents, percentage rents or other sums under the Leases (including expense reimbursement payments) (collectively, the “Lease Obligations”) are payable or accruable under the Leases on the basis of estimates or formulae and are subject to adjustment after the Closing Date, such rents shall be apportioned on the Closing Date on the basis of the sums actually paid by the Tenants under the Leases to Seller on account of such rents and/or expenses prior to the Closing Date, and will be subject to reapportionment on the basis of the rents and expenses as finally determined to be owing and collected under the Leases. If Leases contain Lease Obligations payable by Tenants which have accrued as of the Closing Date but are not then due and payable, the amount of such Lease Obligations shall not be prorated as of the Closing Date but shall be allocated and paid as hereinafter provided. No later than five (5) Business Days before Closing, Seller shall deliver to Purchaser its good faith calculation of the Lease Obligations incurred and collections received for the period prior to the Closing Date (the “Pre-Closing Reconciliation”) and provide such Pre-Closing Reconciliation to Purchaser, including but not limited to an estimated reconciliation of charges for 2021, together with supporting documentation. All prorations and reconciliations shall be subject to Purchaser’s review and approval. Any overpayments shown on the Pre-Closing Reconciliation shall be credited to Purchaser at Closing. Any underpayments shall be remitted to Seller as and when collected by Purchaser as hereinafter provided. In the event the 2021 reconciliations shall not have been finalized as of Closing, Seller shall continue to be responsible for the preparation thereof in accordance with the Leases by not later than ninety (90) days after Closing, and any additional underpayments or overpayments determined based on such final reconciliation shall then be reconciled between Seller and Purchaser as hereinabove and hereinafter provided. All amounts collected by Purchaser or Seller from Tenants after the Closing Date will be applied pursuant to Section 8.1(d). Either party may inspect, during normal business hours and upon reasonable prior written notice, the other’s records related to the Properties to confirm the calculations contemplated hereby. If the Closing shall occur before the real estate tax rate is fixed, the apportionment of real estate taxes shall be based upon the tax rate for the next preceding year applied to the latest assessed valuation. After Final adjustment will be made upon the real estate taxes and assessments are finally fixed, Buyer and actual tax amount when determined.
(c) Any rents or other Lease Obligations collected by the Seller or Purchaser after the Closing Date shall make a recalculation and proration of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment be applied first to the other based on such recalculation. If Buyer shall receive any refund issued calendar month in which they are collected, then to Buyer, as tenantthe rentals due and payable for the calendar month (or, with respect to taxes additional rents, percentage rents and other sums, the applicable period relating thereto) in which the Closing occurs, if unpaid, then to any months (or other applicable periods if past due) subsequent to the month (or other applicable period if past due) in which the Closing Date occurs, and then to any rents or other Lease Obligations past due for the calendar months (or other applicable periods) preceding the calendar month (or other applicable period) in which the Closing Date occurs (the “Arrears”). Any rents or other Lease Obligations collected by Purchaser that are to be applied to the Arrears pursuant to the preceding sentence shall be held by the Purchaser for the account of the Seller, and, after deducting therefrom all reasonable third-party expenses incurred in connection with the collection thereof, the Purchaser shall remit the same to the Seller. For a period of one hundred fifty (150) days after the Closing Date, Purchaser shall make good faith efforts to collect any Arrears from the Tenants; provided, however, Purchaser will not be required to institute any proceeding to collect any such Arrears. Seller agrees not to commence any collection action or to terminate any Lease after the Effective Date without Purchaser’s consent, not to be unreasonably withheld, and Seller further agrees not to attempt to collect Arrears from any Tenant with a Lease that remains in effect as of Closing, provided, however, that, the foregoing prohibition shall not apply to Gold’s Gym, Jem Industries and any other Tenant that has vacated or vacates its premises or the Lease for which has expired or been terminated prior to the Closing. Purchaser shall not waive any amounts owing with respect to Arrears owing for the period prior to the Closing, Closing nor modify any Lease so as to reduce any base rents or charges owed under such Lease for the amount of such refund received period prior to the Closing without first obtaining Seller’s prior written consent.
(d) All assessments (other than real estate taxes) imposed by Buyer any governmental agency for improvements to benefit the Properties (“Assessments”) that are completed or imposed before the Effective Date shall be apportioned as of paid by Seller to the Closing and the amount extent allocable to the period prior to the Closing Closing. All other Assessments shall be paid by Buyer Purchaser.
(e) Except for those amounts being retained in the Post-Closing Lease Escrow, all leasing commissions, finders’ fees, Tenant allowances and credits shall be paid in full by Seller or credited to Purchaser at Closing to the extent allocable to the period prior to Closing.
(f) With respect to any residential units that (a) are not in “made-ready” condition on the Closing Date, and (b) have been vacant for more than five (5) Business Days prior to Closing, Purchaser shall receive a credit against the Purchase Price of Five Hundred Fifty and 00/100 Dollars ($550.00) per unit. For purposes hereof “made-ready” shall mean that vacant apartments have been thoroughly cleaned (including steam cleaning or similar deep cleaning of all carpeted areas, or carpet replacement if replacement would have been performed by Seller in the ordinary course of business prior to Closing if Seller was not selling the Property), walls cleaned or repainted consistent with Seller's past practices and that all apartments contain the following: (1) refrigerator-freezer unit in working condition; (2) dishwasher, garbage disposal, stove, oven, washer and dryer in working condition; (3) plumbing, heating, air conditioning, and electrical systems, all in good working order; (4) floors fully covered with a combination of tile or linoleum and carpeting; (5) blinds and/or drapes on all windows in good operating condition or better, and (6) there is no material damage to the doors, walls, ceilings, fixtures, floors or windows, such that the apartment unit is in a condition (consistent with the standards of similar units in the Property) for immediate rental and occupancy.
(g) In addition, if any obvious error in either the calculations or amount of final figures used in any closing adjustment is discovered after Closing, Purchaser and Seller agree to correct such error promptly upon notice from the other party and to use commercially reasonable efforts to correct such adjustment, provided, that, in all events, the parties shall make such adjustments, or confirm in writing that no such adjustments are necessary, within 10 one hundred twenty (120) days after the end of the calendar year in which the closing occurs. Notwithstanding the foregoing, any party hereto not bringing to the attention of the other party, in writing within the period of one hundred twenty (120) days following the calendar year in which the closing occurs, a potential claim for a re-adjustment in prorations based on error, miscalculation or omission shall be deemed to have automatically waived and relinquished such refund is received. claim.
(h) The obligations provisions of Seller under this paragraph Section 8.1 shall survive Closing for the ClosingSurvival Period.
Appears in 1 contract
Sources: Purchase and Sale Agreement (First Real Estate Investment Trust of New Jersey)
Apportionments. (a) Expenses for power The following shall be apportioned between Seller and utilities chargesPurchaser as of 11:59 p.m. on the day immediately preceding the Closing Date, prepaid expensesprovided that to the extent any such amount to be apportioned is the obligation of Seller as tenant under the Lease, the apportionment shall occur as of the date Seller ceases to be required to pay the same under the Lease and, to that extent, no payment shall be due in respect thereof on the Closing Date:
(i) real estate taxes, payments in lieu of taxes, sewer and water rents and taxes, real estate water rates and charges, vault charges and taxes, business improvement district taxes and assessments and "minimum"any other governmental taxes, "fixed" charges or "base" rent due and payable under assessments levied or assessed against the Leases Twenty First Floor Unit (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses"“Property Taxes”), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and similar (c) of Article 11 hereof;
(ii) all other Common Charges (as defined in the Declaration) and any other prepaid utility charges not included in Common Charges with respect to the Twenty First Floor Unit; and
(iii) such other items for as are customarily apportioned in accordance with real estate closings of commercial properties in the Leases City and State of New York.
(b) Property Taxes shall be prorated between Seller and Buyer apportioned on the basis of the tax period for which assessed. If as of the Closing Date the Twenty First Floor Unit or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessment which are due prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date.
(c) In the event of any conflict between the foregoing paragraph (b) and the terms and provisions of the Condominium Documents and the Lease with respect to this subject, the terms and provisions of the Condominium Documents and the Lease shall govern.
(d) At or prior to the Closing, Seller and Purchaser and/or their respective agents or designees will jointly prepare a preliminary closing statement (the “Preliminary Closing Statement”) which will show the net amount thereof shall due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be promptly added to or subtracted from the Balance of the Purchase Price to be paid to Buyer or Seller or credited to Buyer, as at the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business Closing. Within one hundred twenty (120) days following the Closing Date, on Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory in form and substance to Seller and Purchaser (the basis “Final Closing Statement”) setting forth the final determination of the fiscal adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid). The net amount due Seller or calendar year for which assessed and based on a three hundred sixty (360) day year and a Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the party obligated therefor within thirty (30) day monthdays following that party’s receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the parties hereto, except for (i) any items which are not capable of being determined at the time the Final Closing Statement, which items shall be determined and paid in the manner set forth in the Final Closing Statement when such items may be determined, (ii) any amounts payable in respect of the Leaseback Premises and (iii) other amounts payable hereunder pursuant to provisions of this Agreement which expressly survive the Closing. Prior to and following the Closing Date, each party shall provide the other (and shall cause the Condominium to provide the other) with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein. If the parties are unable to agree on these adjustments and prorations, then any dispute with respect thereto shall be resolved by arbitration before a single arbitrator in the Borough of Manhattan, City of New York, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) (Expedited Procedures). No arbitrator shall have the power to add to, subtract from, or otherwise have the power to modify the provisions of this Agreement. The decision in any such arbitration shall be binding and conclusive on Seller and Purchaser. Judgment and equitable relief may be had on the decision and award of the arbitrator so rendered in any court of competent jurisdiction. Notwithstanding anything to the contrary contained in the Commercial Arbitration Rules, notices to Seller and Purchaser will be given in accordance with the notice provisions of this Agreement. In no event will either party be entitled to consequential or punitive damages with respect to any matter to be resolved by arbitration. Each party shall pay its own costs, fees and expenses in accordance with any arbitration. The fees and expenses of the arbitrator and AAA shall be shared equally by Seller and Purchaser, except if the arbitrator shall determine that one party was the prevailing party and that its share of such fees and expenses should be paid by the non-prevailing party, then the non-prevailing party shall pay such fees and expenses.
(be) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which the same are assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occurs, the proration shall be made on the basis of the tax rate for the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to At the Closing, Seller shall have the right to prepay any amounts payable by Seller under the Lease for such period, if any, as Seller may elect in its sole discretion. If Seller exercises such right, then Purchaser shall receive a credit against the Balance in the amount of such refund received prepayment. Seller shall give Purchaser not less than three (3) Business Days’ notice of any intention by Buyer Seller to prepay amounts under the Lease.
(f) All prorations shall be apportioned as complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of the Closing and the amount allocable to the period prior to the Closing shall be paid by Buyer to Seller within 10 days after such refund is received. The obligations of Seller under this paragraph Article 11 shall survive the Closing. ARTICLE 12.
Appears in 1 contract
Sources: Contract of Sale
Apportionments. (a) Expenses for power Except as otherwise expressly provided in this Agreement, all income and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller and Buyer as expenses of the Closing Date Hotel and the net amount thereof shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which the same are assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occurs, the proration shall be made on the basis of the tax rate for the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, Golf Course with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned as of the Closing and the amount allocable to the period prior to the Closing Date shall be paid for the account of Owner, and all income and expenses of the Hotel and the Golf Course with respect to the period from and after the Closing Date shall be for the account of Buyer. The following specific apportionments shall be made between the Parties at the Closing as of midnight on the day immediately preceding the Closing Date (the “Apportionment Time”):
(i) Property taxes shall be apportioned on the basis of the fiscal period for which assessed; provided that if a tax ▇▇▇▇ for the current period has not yet been issued, the apportionment shall be based on Owner’s reasonable estimate of such items based on the assessed value of the Asset taxed for the fiscal year which it is being assessed, or the prior year’s tax ▇▇▇▇, in either case with a re-proration subsequent to Closing within thirty (30) days after a current tax ▇▇▇▇ has been received by either Owner or Buyer. Any property tax in respect of periods prior to the Closing Date will be the responsibility of Owner. Taxes for any taxable period that includes (but does not end on the day immediately preceding the Closing Date) shall be allocated to the period prior to the Closing Date based on the amount of such taxes for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the portion of such period ending on the day immediately preceding the Closing Date and the denominator of which is the total number days in such period.
(ii) Water and sewer service charges and charges for gas, electricity, telephone and all other public utilities shall be apportioned between Owner and Buyer based on the time at which the corresponding services are consumed. If there are meters measuring the consumption of water, gas or electric current to be apportioned hereunder, then Owner shall endeavor to cause such meters to be read as of the Closing Date, and Owner shall pay all utility charges relating to the period before such meter reading upon receipt of statements therefor. Buyer shall be responsible for causing such utilities and services to be charged to Buyer effective as of the Closing Date, and Buyer shall be liable for and shall pay all utility charges for such services rendered from and after the Closing Date. To the extent any such meters are not read as of the Closing Date, the corresponding charges with respect to the Hotel and the Golf Course shall be prorated effective as of the Closing Date by utilizing an estimate of such charges reasonably approved by both Buyer and Owner based on prior bills with respect thereto. Any deposits or credits made or issued with respect to the foregoing services relating to the period prior to the Closing Date shall be credited to Owner. Any apportionment made pursuant to this Section 14.1(iii) shall be subject to adjustment as provided in Section 14.10 below.
(iii) Amounts which have been prepaid or are payable under (a) the Golf Course Lease; (b) the Power Plant Equipment Lease; and (c) the other Assumed Contracts, shall be apportioned between Owner and Buyer as of the Closing Date.
(iv) All prepaid operating expenses shall be apportioned between Owner and Buyer as of the Closing Date.
(v) Buyer shall receive a credit at Closing for the reasonable, documented cost to be incurred by Buyer for replacing the items at the Hotel and the Golf Course bearing the Ritz Carlton name and/or logo and used in the operation of the Hotel as of the Closing Date (collectively, the “Ritz Carlton Name Property”) with comparable items without such name and logo; provided, however, that (a) the Buyer’s total credit for such costs shall in no event exceed an amount equal to Seller the lesser of (1) the Hotel’s cost of acquisition of the Ritz Carlton Name Property being replaced; or (2) Two Hundred Fifty Thousand United States Dollars (US$250,000) and (b) merchandise offered for sale at the Hotel and/or the Golf Course as of the Closing Date and bearing the Ritz Carlton name or logo (the “Ritz Carlton Merchandise”) shall not be deemed to constitute part of the Ritz Carlton Name Property. Owner shall, at its sole cost and expense, cause all of the Ritz Carlton Name Property and all such Ritz Carlton Merchandise to be removed from the Hotel and the Golf Course on or before the Closing Date, if practical, or if not practical within 10 seven (7) days following the Closing Date; provided, however, that Buyer shall receive reasonable prior written notice of such removal and such removal shall (x) be undertaken during reasonable business hours, (y) not interfere with Buyer’s renovation of the Hotel and (z) be undertaken in a manner that does not damage the Hotel and/or the Golf Course. Owner shall have the right to store during such period, at Owner’s sole cost, expense and risk, any Ritz Carlton Name Property and Ritz Carlton Merchandise remaining at the Hotel or Golf Course after the Closing Date; provided, however, that Buyer shall have the right to reasonably direct Owner where at the Hotel and/or the Golf Course to store such refund is received. The obligations remaining Ritz Carlton Name Property or Ritz Carlton Merchandise, and Buyer shall have no liability to Owner or Operator for any loss, damage or destruction of Seller under this paragraph or to any such remaining Ritz Carlton Name Property or Ritz Carlton Merchandise.
(vi) All other income, expense, charges and fees shall survive be apportioned between Owner and Buyer as of the ClosingApportionment Time and in the manner customary for apportionment of similar items for similar transactions.
Appears in 1 contract
Sources: Hotel Asset Purchase Agreement (Playa Hotels & Resorts B.V.)
Apportionments. (a) Expenses for power and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases The following shall be prorated apportioned between Seller and Buyer Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the "Apportionment Date") on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the net amount thereof shall be promptly paid actual number of days in the month and a 365 day year:
(i) real estate taxes, sewer rents and taxes, water rates and charges (to Buyer the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or Seller assessments levied or credited to Buyerassessed against the Premises (collectively, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date"Property Taxes"), on the basis of the fiscal or calendar year respective periods for which each is assessed and based on a three hundred sixty or imposed, to be apportioned in accordance with Section 7(c); and
(360ii) day year and a thirty (30) day monthsuch other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Real estate taxes and assessments Property Taxes shall be prorated apportioned on the basis of the fiscal year period for which the same are assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the proration apportionment of such Property Taxes based thereon shall be made on at the basis of Closing Date by applying the tax rate for the preceding year applied to the latest assessed valuation. After , but, promptly after the real estate taxes and assessments assessment and/or tax rate for the current year are finally fixed, Buyer the apportionment thereof shall be recalculated and Seller shall make a recalculation and proration of the same, and Buyer or SellerPurchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days based on such recalculation. If Buyer as of the Closing Date the Premises or any portion thereof shall receive be affected by any refund issued special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to Buyerthe Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date, with apportionment as tenantof the Apportionment Date.
(c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to taxes Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the period Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such refund received by Buyer net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be apportioned as determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of the Closing and the amount allocable adjustments to the period prior to Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by Buyer to Seller the Party obligated therefor within 10 five (5) business days after such refund is receivedfollowing that Party's receipt of the approved Final Closing Statement. The obligations adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller under and Purchaser, which items shall be determined and paid in the manner set forth in this paragraph Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.
(g) The provisions of this Section 7 shall survive the Closing.
Appears in 1 contract
Apportionments. (a) Expenses for power and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases The following shall be prorated apportioned between Seller and Buyer with respect to the Property, as of the Closing Date 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 shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which the same are assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occurs, the proration shall be made on the basis of the tax rate for the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned as of the Closing and the amount allocable to the period prior to the Closing shall be paid by Buyer to Seller or Seller to Buyer, within 10 thirty (30) days following the Apportionment Date:
(a) All Real Estate Taxes (as defined in the Seller’s Lease) shall be prorated based on the actual current tax ▇▇▇▇. If such tax ▇▇▇▇ has not yet been received by the Apportionment Date, then Buyer and Seller shall estimate the Real Estate Taxes based upon Buyer’s and Seller’s good faith estimate of the change in the amount of the previous year’s tax ▇▇▇▇ and Buyer and Seller shall after the Closing report the Real Estate Taxes as soon as the actual current tax ▇▇▇▇ is available. All amounts payable for Real Estate Taxes accruing on or prior to the Apportionment Date shall be the obligation of Seller and all amounts payable for Real Estate Taxes accruing after the Apportionment Date shall be the obligation of Buyer. 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 Real Estate Taxes on the Premises shall be paid on the 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 Tenants and subject to the terms of Section 4.3 hereof.
(c) fuel oil and liquid propane gas, if any, at the cost per gallon most recently charged to Seller, based on the supplier’s measurements thereof taken within five (5) Business Days of the Apportionment Date;
(d) Rents and other revenues derived from the Leases, if, as, and when collected in accordance with the provisions of this Article 4, including Section 4.4;
(e) 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 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 refund is received. The obligations matters are customarily apportioned in connection with real estate closings of Seller under this paragraph shall survive the Closingcommercial properties located in New York, New York.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Bank of New York Mellon Corp)
Apportionments. 11.1 The following shall be apportioned between the parties as of 11:59 P.M. on the day immediately preceding the Closing Date:
(a) Expenses for power and utilities rents, additional rents, escalation charges, prepaid expensesinsurance reimbursements and other Tenant Charges under the Lease (collectively, sewer the “Rents”), as and water rents and taxes, when collected;
(b) real estate taxes and assessments and "minimum"assessments, "fixed" or "base" rent due and payable under the Leases (includingif any, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases shall be prorated between Seller and Buyer as of the Closing Date and the net amount thereof shall be promptly paid to Buyer or Seller or credited to Buyer, as the case may be, as soon as practicable following the Closing Date but, in any event, not later than 10 business days following the Closing Date, on the basis of the fiscal or calendar year for which assessed and based on a three hundred sixty (360) day year and a thirty (30) day month.
(b) Real estate taxes and assessments shall be prorated on the basis of the fiscal year for which assessed (including without limitation real estate tax reimbursement obligations with respect to the Tenant under the Lease). Notwithstanding the foregoing, if real estate taxes shall be the responsibility of Tenant under the Lease, and if Tenant shall not then be in monetary default under the Lease, then the same shall not be adjusted between Seller and Purchaser at Closing (other than reimbursement and adjustment obligations related to payments made to or by Seller as landlord under the Lease);
(c) water meter and frontage charges and sewer rents, if any, based upon a final water meter reading obtained by Seller, at Seller’s sole expense, dated not more than forty five (45) days prior to the Closing Date. Any adjustments for the period subsequent to such reading shall be made on a per diem basis based upon the most recent average daily usage, as shown by the special water meter reading. In the event the final water reading is not available as of the Closing Date, the Closing shall nevertheless proceed and the parties shall apportion the meter charges and sewer rents on the basis of the last readings and bills received by Seller and the same shall be appropriately readjusted after the Closing on the basis of the next subsequent bills (with Seller being obligated to pay all such utility charges pertaining to the period prior to Closing, and Purchaser being obligated to pay all such charges pertaining to the period thereafter). Notwithstanding the foregoing, if water and sewer charges shall be the responsibility of Tenant under the Lease, and if Tenant shall not then be in monetary default under the Lease, then the same shall not be adjusted between Seller and Purchaser at Closing.
(d) vault taxes or charges, if any, unless same shall be the responsibility of Tenant under the Lease;
(e) value of fuel stored on the Premises, if any, at the price then charged by Seller’s supplier, including any taxes, based upon a reading obtained by Seller not more than three (3) days prior to the Closing, unless same shall be the responsibility of Tenant under the Lease; and
(f) business improvement district charges and other governmental and quasi-governmental taxes, fees, assessments and charges, unless same shall be the responsibility of Tenant under the Lease (other than reimbursement and adjustment obligations related to payments made to or by Seller as landlord under the Lease);
11.2 Except as expressly provided to the contrary herein, all apportionments and adjustments shall be made in accordance with the customs and practice of the Real Estate Board of New York.
11.3 If any past due rent or additional rent shall be owing by Tenant on the Closing Date, Purchaser and Seller agree that the first moneys received by Purchaser from the Tenant, net of the reasonable out-of-pocket costs of collection, shall be applied in the following order of priority: (a) first, to the month in which the Closing occurred; (b) then, to any month or months following the month in which the Closing occurred; (c) then, to the month immediately preceding the month in which the Closing occurred; and (d) then, to the period prior to the month immediately preceding the month in which the Closing occurred. All such monies received by Purchaser for such past due rentals shall be held in trust for Seller, and Purchaser agrees to remit forthwith to Seller the amount of such past due rentals to which Seller is entitled, as and when so collected, together with a reasonable accounting of the amounts collected and the collection costs, In no event shall Seller be permitted to s▇▇ the Tenant to collect any rent arrears. Purchaser shall use reasonable efforts (but not litigation) to collect arrears in the payment of rent after the Closing, and Purchaser shall not consent to the release or waiver of any arrears without the consent of Seller (which shall not be unreasonably withheld).
11.4 Seller is hereby authorized, but is not obligated, to continue any proceedings for reduction of the assessed valuation of the Premises that are assessedpending on the Closing Date and (with respect to any such proceedings for tax years prior to the tax year in which the Closing Date shall occur) to settle or compromise the same in Seller’s sole discretion. If Any settlement or compromise in connection with such proceedings brought with respect to the tax year in which the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing occurs, the proration shall be made on by Seller in consultation with, and with the basis consent of, Purchaser (which consent shall not be unreasonably withheld or delayed). If a tax refund shall be obtained by reason of an adjustment of the tax rate for the preceding year applied to the latest assessed valuation. After the real estate taxes and assessments are finally fixed, Buyer and Seller shall make a recalculation and proration valuation of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment Premises attributable to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the a period prior to the ClosingClosing Date, the same shall be the property of Seller (less the reasonable costs of collection, including attorneys and accounting fees). If any such refund shall be obtained for a period including the Closing Date, the amount of such refund received by Buyer (less the cost of obtaining the same, including, without limitation, reasonable attorneys’ and accounting fees) shall be apportioned as according to length of the Closing respective portions of such period during which each party owned the Premises and the amount allocable subject to adjustment and apportionment pursuant to the period prior Lease. If any such refund or portion thereof to the Closing which Purchaser shall be entitled as hereinbefore provided shall be paid by Buyer to Seller, Seller within 10 days after such refund is received. shall receive the same as trust funds for the benefit of Purchaser and shall forthwith remit the same thereto.
11.5 The obligations terms, covenants and conditions of Seller under this paragraph Article 11 shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital New York Recovery Reit Inc)
Apportionments. (a) Expenses for power and utilities charges, prepaid expenses, sewer and water rents and taxes, real estate taxes and assessments and "minimum", "fixed" or "base" rent due and payable under the Leases (including, so called "escalation rent", "additional rent", or "operating expenses" collectively, "Operating Expenses") and similar prepaid items for the Leases The following apportionments shall be prorated made between Seller and Buyer the parties on the Closing Date as of the close of the business day prior to the Closing Date and the net amount thereof of such prorations and apportionments shall be promptly paid to Buyer settled in accordance with Section 12.04:
(a) prepaid and collected rent;
(b) real estate and personal property taxes (including, without limitation, all amounts payable under the Tax Agreement whether or Seller or credited to Buyernot currently due and payable), as the case may bewater charges, as soon as practicable following the Closing Date butsewer rents and vault charges, in any event, not later than 10 business days following the Closing Dateif any, on the basis of the fiscal or calendar year period for which assessed and 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 three hundred sixty (360) day year and a thirty (30) day month.per diem basis, when the next reading is available;
(bc) Real intentionally deleted;
(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 taxes transactions of this size and assessments shall be prorated on the basis type in Baltimore, Maryland. If as of the fiscal year for which Closing Date, any items of income or expense attributable to the Property are not known or available, the parties agree to equitably apportion such items, so long as the same are assessedidentified within 90 days after the Closing. If the Closing Date shall occur either before an assessment is made the applicable real estate or a personal property tax rate is fixed for fixed, the tax period in which apportionment of taxes on the Closing occurs, the proration Date shall be made on upon the basis of the tax rate for the preceding year period applied to the latest assessed valuation. After Promptly after the real estate taxes and assessments are finally new tax rate is fixed, Buyer and Seller shall make a recalculation and proration the apportionment of the same, and Buyer or Seller, as the case may be, shall make an appropriate payment to the other based on such recalculation. If Buyer shall receive any refund issued to Buyer, as tenant, with respect to taxes for the period prior to the Closing, the amount of such refund received by Buyer shall be apportioned as of recomputed. Any discrepancy resulting from such recomputation and any material errors or omissions in computing any apportionments on the Closing and Date shall be promptly corrected, which obligation shall survive the amount allocable to the Closing Date for a period of ninety (90) days after Closing. At least five (5) days prior to the Closing Date, the Transferor Agent and the 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 BRI 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 paid 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 Buyer each Transferor Partner, and (iii) the number of the Restricted Distribution BRI Partnership Units to Seller within 10 days after such refund is receivedbe received by each Transferor Partner. The obligations BRI Partnership shall have no obligation or liability with respect to the preparation or accuracy of Seller under this paragraph the Preliminary Transferor Allocation Schedule or the Transfer Allocation Schedule or the distribution of the BRI Partnership Units or the BRI Additional Payment, if applicable, 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 survive 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 Transferor Partners, and refund such cash to the Transferor Partners subsequent to Closing.
Appears in 1 contract
Sources: Contribution Agreement (Berkshire Realty Co Inc /De)