Apportionments. (a) The following shall be apportioned between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Apportionment Date”), provided 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 no payment shall be due in respect thereof on the Closing Date: (i) real estate taxes, payments in lieu of taxes, sewer rents and taxes, water rates and charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unit, on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereof; (ii) fuel, if any, supplied to the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest; (iii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller; (iv) all other operating expenses with respect to the Purchaser’s Unit; (v) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County in which the Property is located; and (vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit. (b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing. (c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations. (e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment. (f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date. (g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.
Appears in 1 contract
Sources: Contract of Sale
Apportionments. (a) The following shall be apportioned between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Apportionment Date”), provided that to ) on the extent any such amount to be apportioned is basis of the obligation actual number of Seller as tenant under days of the Lease, the apportionment month which shall occur have elapsed as of the date Seller ceases to be required to pay Closing Date and based upon the same under actual number of days in the Lease month and no payment shall be due in respect thereof on the Closing Date:a 365-day year: 507997960.5 132
(i) subject to Section 6(b), prepaid rents, fixed rents and any other amounts payable by tenants to Seller pursuant to the Leases (including, without limitation, operating expense escalation payments, real estate taxestax escalation payments and percentage rent, payments in lieu of if any, payable under the Leases) (collectively, “Rents”);
(ii) real estate taxes, sewer rents and taxes, water rates and chargescharges (to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes taxes, and other real estate assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unit), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereofSection 6(c);
(iiiii) fueladministrative charges, if any, supplied permitted under the Leases or applicable law, on security deposits held pursuant to the Purchaser’s UnitLeases;
(iv) fuel supplied for the Building, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completedany, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iiiv) prepaid fees for licenses and other permits assigned to Purchaser at the Closing (it being understood that evidence of such prepayment must be provided to Purchaser);
(vi) any amounts prepaid or payable under all the Assumed Contracts which have been entered into by Sellerand, other than those Contracts which pursuant if Purchaser elects to Section 10.04 are to be terminated by Sellerassume the Property Management Agreement, the Property Management Agreement;
(ivvii) electricity, water, gas, steam, telephone, internet, cable or satellite television and any other utilities, at the rates most recently charged to Seller, plus sales taxes thereon, except to the extent required to be paid by tenants pursuant to Leases in effect as of the Closing Date directly to the entity imposing same;
(viii) all other operating expenses and income with respect to the Purchaser’s UnitProperty which are customarily apportioned;
(vix) any amounts prepaid or payable under the Ground Lease;
(x) any amounts prepaid or payable under the Airspace Lease; and
(xi) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County in which the Property is located; and
(vi) charges for all electricitySeattle, steam and other utility services consumed in the Purchaser’s UnitWashington area.
(bi) All Property Taxes assessed against Monthly base rents (collectively, “Base Rents”) under the Property Leases shall be adjusted and prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill if, as and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominiumwhen collected basis. If the most recent tax bill received Base Rents collected by Purchaser or Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (from tenants who owe Base Rents for the period periods prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller)shall, allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to first deducting Purchaser’s Unitactual out-of-pocket costs of collection, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, 507997960.5 133 if applicable, the Lease Expiration Date.
be applied, (gA) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.first, to Base Rents attributable to periods from and after Closing and
Appears in 1 contract
Sources: Purchase and Sale Agreement
Apportionments. (a) The following adjustments described in this Section 6 shall be calculated with respect to each Property as of Closing. The aggregate Purchase Price to be paid by Purchaser to Sellers shall be adjusted by the aggregate of all adjustments.
(b) All of the apportionments in this Section 6, including the following, except as specifically provided herein, shall be apportioned between Seller Sellers and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the “"Apportionment Date”), provided that to ") on the extent any such amount to be apportioned is basis of the obligation actual number of Seller as tenant under days of the Lease, the apportionment month which shall occur have elapsed as of the date Seller ceases Closing Date and based upon the actual number of days in the month and a 365 day year; provided, however, that solely for purposes of an initial calculation thereof for the Closing, any payments from tenants or other third-parties to be required to pay pro-rated in accordance with this Section 6 which are then held in a lockbox account with the same under the Lease and no payment Lender, shall be due in respect thereof calculated on the date that is two days preceding the Closing DateDate and, upon collection thereof by Purchaser, all remaining sums due and payable to Seller as of the Apportionment Date shall be remitted to Seller by Purchaser:
(i) as more particularly set forth in Section 6(c) hereof, prepaid rents, fixed rents and additional rents payable pursuant to the Leases (including, without limitation, operating expense escalation payments, real estate taxestax escalation payments and percentage rent, payments in lieu of taxesif any, sewer rents and taxes, water rates and charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments payable under the Leases) (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unit, on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereof"Rents");
(ii) fuel, if any, supplied to the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplierSellers' suppliers, at current cost, together with any sales taxes payable paid in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s such fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iii) any amounts prepaid fees for licenses and other permits assigned to Purchaser at the Closing or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Sellerotherwise remaining in force for the benefit of the owner of the applicable Property after the Closing;
(iv) all any amounts payable to, or prepaid or payable by (or on behalf of), the owner of the Property under any service, maintenance, supply, marketing, billboard, coop billboard agreements or other operating expenses with respect agreement relating to the Purchaser’s Unit;operation of the Property (together with all modifications, amendments and supplements relating thereto, collectively, the "Contracts") which are set forth on Schedule 11(a)(xii) (other than the Terminated Contracts) or are entered into after the date hereof in accordance with the terms of this Agreement; and
(v) such all other pro-ratable items with respect to the Purchaser’s Unit as are normally and customarily apportioned in accordance with real estate closings of pro-rated for commercial properties in the State and County jurisdiction in which the such Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(bi) All Property Taxes assessed against Monthly base rents (collectively, "Base Rents") under the Property Leases shall be adjusted and prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill if, as and when collected basis. Base Rents collected by or on the basis behalf of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax billSellers, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (from tenants who owe Base Rents for the period periods prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordinglyapplied first, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) Base Rents for the period from the Closing Date to the end of the month in which the Closing Date occurs; second, in payment of Base Rents for the month immediately preceding the Closing Date; (C) third, in payment of Base Rents for all periods after the Closing Date and (D) fourth, after Base Rents for all periods after the Closing Date have been paid in full, in payment of Base Rents for the periods prior to the Closing Date and not paid pursuant to the preceding subclauses (A) or (B). Each such amount, less reasonable collection costs, shall be adjusted and prorated as provided above, and the party receiving such amount (or the benefit of such amount) shall, within thirty (30) days, pay (or cause to be paid) to the other party the portion thereof to which such party is so entitled.
(ii) Purchaser shall bill (or cause to be billed) tenants owing Base Rents for periods p▇▇▇▇ to the Closing Date, on a monthly basis for a period of ninety (90) days following the Closing Date, and during such period, Purchaser shall use commercially reasonable efforts to collect (or cause to be collected) such past due Base Rents; provided, however, that Purchaser shall have no obligation to commence (or cause the owner of any Property to commence) any actions or proceedings to collect any such past due Base Rents. Base Rents collected by (or on behalf of) Purchaser after the Closing Date to which Sellers are entitled pursuant to Section 6(c)(i) shall be paid to Sellers within thirty (30) days after receipt thereof by Purchaser (or Purchaser's agent). Purchaser shall provide Sellers monthly statements setting forth the status of such collection efforts. Commencing as of ninety-one (91) days after the Closing Date, Sellers may take all steps it deems appropriate, at their sole cost and expense, including, without limitation, the prosecution of one or more lawsuits, to collect Base Rents delinquent as of the Closing Date which are still uncollected (provided, however, that Sellers may not cause any Lease to be terminated or attempt to cause any tenant thereunder to be evicted), and Purchaser shall cause the owner of the Property with respect to which such Base Rents are to be collected to reasonably cooperate in any and all such actions.
(iii) With respect to any Lease that provides for the calendar month immediately succeeding payment of additional or escalation rent based upon (A) a percentage of a tenant's gross sales during a specified annual or other period or (B) Property Taxes, operating expenses, labor costs, cost of living indices or porter's wages (collectively, "Overage Rent"), such Overage Rent ▇▇▇▇▇ ▇▇ adjusted and prorated on an if, as and when collected basis.
(iv) Purchaser shall (or shall cause the month owner of each Property to) (A) render bills for any Overage Rent payable for any accounting period that expired prior to the Closing Date, but which is to be paid after the Closing Date; (B) bill tenants for such Overage Rent attributable to an accounting per▇▇▇ that expired prior to the Closing Date, on a monthly basis, for a period of ninety (90) days thereafter; and (C) use commercially reasonable efforts in the collection of such Overage Rent; provided, however, that Purchaser shall have no obligation to commence (or cause the owner of any Property to commence) any actions or proceedings to collect any such Overage Rents. If Purchaser shall be unable to collect such Overage Rents during the aforementioned ninety (90) day period, Sellers shall have the right to pursue tenants to collect such delinquencies, at its sole cost and expense, including, without limitation, the prosecution of one or more lawsuits (provided, however, that Sellers may not cause any Lease to be terminated or attempt to cause any tenant thereunder to be evicted), and Purchaser shall cause the owner of the Property with respect to which such Overage Rents are to be collected to reasonably cooperate in any and all such actions. Sellers shall furnish to Purchaser all information relating to the period prior to the Closing Date necessary for the billing of such Overage Rent, and Purchaser shall deliver to Sellers, concurrently with delivery to tenants, copies of all statements relating to Overage Rent for any period prior to the Closing Date. Purchaser shall bill (or cause to be billed) tenants for Overage Rents for accounting ▇▇▇iods prior to the Closing Date in accordance with and on the basis of such information furnished by Sellers.
(v) Overage Rent payable for the accounting period in which the Closing Date occurs shall be apportioned between Sellers and Purchaser based upon the ratio that the portion of such accounting period prior to the Closing Date bears to the entire such accounting period. If, prior to the Closing Date, Sellers (or their agent) receive any installments of Overage Rent attributable to Overage Rent for periods from and after the Closing Date, such sums shall be apportioned at the Closing Date. If Purchaser (or its agent) receives any installments of Overage Rent attributable to Overage Rent for periods prior to the Closing Date, such sums (less reasonable collection costs actually incurred by Purchaser) shall be paid to Sellers within thirty (30) days after Purchaser (or its agent) receives payment thereof.
(vi) Any payment by tenants of Overage Rent shall be applied to Overage Rents then due and payable in the following order of priority: (A) first, in payment of Overage Rents for the accounting period in which the Closing Date occurs, (B) second, in payment of Overage Rents for the period preceding the accounting period in which the Closing Date occurs and (iiiC) third, in payment of Overage Rents for such other the accounting period (if any) as Seller may elect following the one in its sole discretion. If Seller exercises such right, then Purchaser shall receive a credit against which the Balance in the amount of such prepaymentClosing Date occurs.
(fvii) All prorations shall To the extent any portion of Overage Rent is required to be complete paid monthly by tenants on account of estimated amounts for the current period, and final no later than six at the end of each calendar year (6) months after Closing or, if applicable, at the Lease Expiration Dateend of each lease year or tax year or any other applicable accounting period), such estimated amounts are to be recalculated based upon the actual expenses, taxes and other relevant factors for that calendar (lease or tax) year, with the appropriate adjustments being made with such tenants, then such portion of the Overage Rent shall be prorated between Sellers and Purchaser on the Closing Date based on such estimated payments (i.e., with (A) Sellers entitled to retain all monthly installments of such amounts with respect to periods prior to the calendar month in which the Closing Date occurs, to the extent such amounts are as of the Closing Date estimated to equal the amounts ultimately due to Sellers for such periods, (B) Purchaser entitled to receive all monthly installments of such amounts with respect to periods following the calendar month in which the Closing Date occurs, and (C) Sellers and Purchaser apportioning all monthly installments of such amounts with respect to the calendar month in which the Closing Date occurs). At the time(s) of final calculation and collection from (or refund to) tenants of the amounts in reconciliation of actual Overage Rent for a period for which estimated amounts have been prorated, there shall be a re-proration between Sellers and Purchaser based on the period in time each party owned the relevant Asset, with the net credit resulting from such re-proration, after accounting for amounts required to be refunded to tenants, being payable to the appropriate party (i.e., to Sellers if the recalculated amounts exceed the estimated amounts and to Purchaser if the recalculated amounts are less than the estimated amounts).
(gviii) To the extent that any tenant, pursuant to a right contained in an existing tenant lease, conducts an audit respecting any Overage Rent calculation (a "Rent Audit") for an accounting period that expired prior to the Closing Date, or otherwise becomes entitled to a refund of Overage Rent with respect to a period prior to the Closing Date, Sellers shall be liable for any refunds due to such tenant or be the recipient of any additional payments due by such tenant as the result of such Rent Audit. The provisions results of this Article 11 any Rent Audit for any other accounting period shall survive be apportioned in the Closingsame manner as Overage Rent. ARTICLE 12Rent Audits for accounting periods that expire prior to the Closing Date shall be settled by the owner of the Property acting in accordance with Sellers' instructions or, if Seller so elects, shall be settled by such Seller directly, in each case at Sellers' sole cost and expense and in accordance with the applicable existing tenant Lease, subject to Purchaser's approval, which shall not be unreasonably withheld, delayed or conditioned; provided, however, that Purchaser's consent to any such settlement shall not be required if the tenant as part of such settlement agrees that such settlement shall not be binding on the landlord in calculating similar amounts for subsequent years and tenant will not introduce any such settlement in challenging amounts due in any such subsequent year. Rent Audits for accounting periods prior to the Closing Date but extending after the Closing Date shall be settled by the owner of the Property acting in accordance with Purchaser's instructions and in accordance with the applicable existing Lease, but Sellers shall receive notice of all negotiations or proceedings in connection therewith, shall have the right to intervene therein and must approve all matters to be approved by the landlord under the applicable existing tenant Lease in connection therewith, which approval shall not be unreasonably withheld, delayed or conditioned, and any and all costs relating to such audit shall be apportioned in accordance with the respective periods within such audit period that the Property was owned, directly or indirectly, by Sellers and Purchaser.
(ix) To the extent that any amounts are paid or payable by a tenant under a Lease to an owner of a Property prior to the Closing Date in advance of the period to which such expense applies, whether as a one time payment or in installments (e.g. for real property tax escalations), such amounts shall be apportioned as provided above but based upon the period for which such payments were or are being made.
(x) To the extent tenants pay items of Rent which are not Base Rents or Overage Rents, such as charges for common area charges or maintenance, marketing, electricity, steam, water, cleaning, overtime services, insurance, sundry charges or other charges of a similar nature (collectively, "Additional Rent"), such rent shall be applied based on the period covered by such Additional Rent charge (i.e., the period the applicable work, utility or service was provided). For any Additional Rent payable for a period that expired prior to the Closing Date, but which shall be paid after the Closing Date, Purchaser shall pay the entire amount thereof to Sellers within thirty (30) days after receipt thereof, less any reasonable collection costs actually incurred. Purchaser shall (A) render bills for any Additional Rent payable for any period that expired prior to the Closing Date, but which is to be paid after the Closing Date; (B) bill tenants for such Additional Rent attributable to a period that ▇▇▇▇red prior to the Closing Date, on a monthly basis, for a period of ninety (90) days thereafter; and (C) use commercially reasonable efforts in the collection of such Additional Rent; provided, however, that Purchaser shall have no obligation to commence (or cause the owner of any Property to commence) any actions or proceedings to collect any such Additional Rent. If Purchaser shall be unable to collect such Additional Rent during the aforementioned ninety (90) day period, Sellers shall have the right to pursue tenants to collect such delinquencies (including, without limitation, the prosecution of one or more lawsuits), provided that Sellers may not cause any Lease to be terminated or attempt to cause any tenant thereunder to be evicted, and Purchaser shall cause the owner of the Property with respect to which such Additional Rent is to be collected to reasonably cooperate in any and all such actions. Sellers shall furnish to Purchaser all information relating to the period prior to the Closing Date necessary for the billing of such Additional Rent, and Purchaser shall deliver to Sellers, concurrently with delivery to tenants, copies of all statements relating to Additional Rent for any period prior to the Closing Date. Purchaser shall bill tenants for Additional Rent relating to periods prior to the Cl▇▇▇▇g Date in accordance with and on the basis of such information furnished by Sellers. Additional Rent payable for the period in which the Closing Date occurs shall be apportioned between Sellers and Purchaser based upon the same method used to apportion the underlying expense being billed to such tenant, or if such expense is not being apportioned, then based upon the ratio that the portion of such accounting period prior to the Closing Date bears to the entire such accounting period.
(xi) To the extent any payment received from a tenant after Closing does not indicate whether the payment is for an item of Base Rent, Overage Rent or Additional Rent, and the same cannot be clearly determined from the context of such payment (e.g., it is not accompanied by an invoice for an item of Base Rent, Overage Rent or Additional Rent in such amount), then such payment will be applied: first, to payment of
Appears in 1 contract
Sources: Purchase and Sale Agreement (Tanger Properties LTD Partnership /Nc/)
Apportionments. (a) The following shall be apportioned between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Apportionment Date”), provided that to the extent any such amount are to be apportioned is the obligation of Seller as tenant under the Lease, the apportionment shall occur as of the date Seller ceases immediately preceding the date of the Closing:
(b) Only to be required the extent that any existing Tenant has failed to pay the same under the Lease and no payment shall be due in respect thereof on vacate its premises prior to the Closing Date:; Seller and Purchaser shall apportion all rents and additional rents due under the Leases ("Rents") as and when collected.
(ic) Subject to Section 7, real estate taxes, payments in lieu of taxes, sewer rents and taxes, water rates and charges, vault charges and taxes, business improvement district taxes and assessments on the basis of the fiscal year for which assessed.
(d) Subject to Section 8, water and sewer charges and rents on the basis of the fiscal year for which assessed, unless the meters are read on the date of the Closing; provided, however, if any such charges or rents are payable by any tenant by the express terms of its Lease, such charges or rents shall not be apportioned.
(e) Subject to Section 8 utilities, including, without limitation, telephone, electricity (and any other governmental taxes, charges or assessments (collectively, “Property Taxes”sales tax thereon) levied or assessed against the Purchaser’s Unitand gas, on the basis of the respective periods most recently issued bills therefor; unless the meters are read on the date of the Closing; provided, however, if any such charges or rents are payable by any tenant by the express terms of its Lease, such charges or rents shall not be apportioned.
(f) Any charges, advance payments and deposits paid or payable under the Contracts which Purchaser assumes at Closing, and which shall not have been terminated as of the Closing.
(g) Fees for which each is assessed or imposedLicenses and permits, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereof;the extent actually transferred.
(iih) fuel, if any, supplied to the Purchaser’s UnitFuel (including sales tax), based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost price therefor), .
(i) Except as otherwise provided that in calculating the apportionment described in this paragraph (a)(ii)Agreement, no apportionment the apportionments shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller;
(iv) all other operating expenses with respect to the Purchaser’s Unit;
(v) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate the customs in respect to title closings of commercial properties in the State and County in which jurisdiction where the Property is Premises are located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(bj) All Property Taxes assessed against the Property Any errors in calculations or apportionments shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (corrected or adjusted as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes soon as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and practicable after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoingClosing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(gk) The provisions of this Article 11 Section shall survive the Closing. ARTICLE 12.
Appears in 1 contract
Sources: Lease Agreement (Nexmed Inc)
Apportionments. (a) 3.1 The following shall be apportioned between Seller Sellers and Purchaser at the Closing as of 11:59 p.m. on 12:01 A.M., January 1, 1996 (the day immediately preceding "Apportionment Date") notwithstanding the Apportionment Date may not be the Closing Date (the “Apportionment Date”), provided 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 no payment shall be due in respect thereof on the Closing Date:hereinafter defined):
(ia) prepaid rents and Additional Rents and other amounts payable by tenants, if, as and when received;
(b) real estate taxes, payments in lieu of taxeswater charges, sewer rents and taxes, water rates and vault charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unitif any, on the basis of the respective periods fiscal years, respectively, for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and same have been assessed;
(c) value of Article 11 hereoffuel stored on the Properties, at Sellers' cost, including any taxes, on the basis of a statement from Sellers' supplier;
(iid) fuelcharges and payments under Contracts (as hereinafter defined) which are transferred to Purchaser or permitted renewals or replacements thereof;
(e) any prepaid items for operating expenses relating to the Properties, including fees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees;
(f) utilities, including telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings;
(g) transferable deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Properties, if same are assigned to Purchaser at the Closing, which shall be credited in their entirety to Sellers;
(h) personal property taxes, if any, supplied to the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller;
(iv) all other operating expenses with respect to the Purchaser’s Unit;
(v) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests the fiscal year for which assessed;
(as defined in the Declarationi) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balanceSellers' share, if any, shall be paid to Seller of all revenues from the operation of the Properties other than rents and Additional Rents (for the period prior to the Closing Date) andincluding parking charges, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Sellerand telephone booth and vending machine revenues), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unitif, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.when received;
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. on of the day immediately preceding the Closing Date (the “Apportionment "Adjustment Date”"):
(a) fixed or base rents ("Rents") which have been prepaid, security deposits referred to in Section 9(e), provided that Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable 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 no payment shall be due in respect thereof on periods which expire after the Closing Date:, which have been received by Seller;
(ib) real estate taxes, payments special assessments (but only any installment relating to the period in lieu of taxes, sewer rents and taxeswhich the Adjustment Date occurs), water rates charges and sewer charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unitif any, on the basis of the respective periods fiscal years (or applicable billing period if other than a fiscal year), respectively, for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and same have been assessed;
(c) value of Article 11 hereofprepaid fuel belonging to the Seller stored on the Property, at the Seller's cost, including any taxes, on the basis of a statement from the Seller's suppliers;
(iid) fuelcharges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on Schedule 3 hereto or permitted renewals or replacements thereof;
(e) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(f) utilities, to the extent required by Section 3.4;
(g) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(h) personal property taxes, if any, supplied to on the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days basis of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interestfiscal year for which assessed;
(iiii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other revenues from the operation of the Property other than those Contracts which pursuant to Section 10.04 are to be terminated by SellerRents and Additional Rents (including, without limitation, parking charges, and telephone booth and vending machine revenues);
(ivj) all other operating expenses with respect to the Purchaser’s Unit;New Lease Expenses as provided in Section 11.1.2; and
(vk) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with between sellers and purchasers of real estate closings properties of commercial properties a type similar to the Property and located in the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unitof Washington.
(b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Witter Dean Realty Income Partnership Ii Lp)
Apportionments. (a) The A. Subject to the terms of this SECTION 6, the following shall items, without duplication, are to be apportioned between Seller and Purchaser with respect to the Property as of 11:59 p.m. p.m., New York City time, on the day date immediately preceding the Closing Date (the “Apportionment Date”), provided that prior 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 no payment shall be due in respect thereof on the Closing Date, and at the Closing the net amount thereof shall either be (x) paid by Purchaser to Seller by wire transfer of immediately available federal funds to a bank account designated by Seller, or (y) credited by Seller against the Purchase Price:
(i) real estate taxesproperty taxes and assessments (including, payments in lieu of taxesif applicable, sewer rents and taxes, any business personal property assessment);
(ii) water rates and charges, vault charges and taxes, business improvement district except those required to be paid by Tenants directly to the entity imposing same;
(iii) sewer taxes and assessments rents;
(iv) fuel and all other utilities, including, without limitation, taxes thereon;
(v) deposits on account with any other governmental taxesutility company servicing the Property, charges or assessments to the extent transferred to Purchaser;
(collectivelyvi) deposits on account with any municipality having jurisdiction over the Property, “Property Taxes”to the extent transferred to Purchaser;
(vii) levied or assessed against the Purchaser’s Unitannual permit, license and inspection fees, if any, on the basis of the respective periods fiscal year for which each is assessed or imposedlevied, if the rights with respect thereto are transferable to be apportioned Purchaser;
(viii) charges under the Third-Party Contracts that are in effect on the Closing Date, if any;
(ix) building related inventory in unopened packages (provided Seller provides reasonable substantiation for the cost thereof and a detailed list of all such items to the extent not previously included in operating expenses); and
(x) all other items that reasonably require apportionment in accordance with paragraphs (b) local custom and (c) of Article 11 hereof;
(ii) fuel, if any, supplied practice to effectuate the transactions contemplated hereby. Seller shall provide a draft apportionment statement to Purchaser for Purchaser’s Unit, based on a reading Seller will endeavor to have completed within 's review and approval not less than five (5) business days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller;
(iv) all other operating expenses with respect to the Purchaser’s Unit;
(v) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by . Seller pursuant to the Lease (in which event such refunds and Purchaser shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and adjust any apportionments made under this SECTION 6 after the Closing to account for errors or incorrect estimates made as of the Closing Date until their respective Units are separately assessed(it being agreed that the parties' aforesaid agreement to make such adjustments shall survive the Closing for a period of twelve (12) months). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before Within twenty (20) days after the date hereof, Buyer shall notify Seller in writing of this Agreement and those Third-Party Contracts that Buyer elects not to assume ("REJECTED CONTRACTS"). Seller shall be continuing terminate all Rejected Contracts, effective as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Apportionment Date”), provided that to ) on the extent any such amount to be apportioned is basis of the obligation actual number of Seller as tenant under days of the Lease, the apportionment month which shall occur have elapsed as of the date Seller ceases to be required to pay Closing Date and based upon the same under actual number of days in the Lease month and no payment shall be due in respect thereof on the Closing Datea 365-day year:
(i) subject to Section 6(b), prepaid rents, fixed rents and any other amounts payable by tenants to Seller pursuant to the Leases (including, without limitation, operating expense escalation payments, real estate taxestax escalation payments and percentage rent, payments in lieu of if any, payable under the Leases) (collectively, “Rents”);
(ii) real estate taxes, sewer rents and taxes, water rates and chargescharges (to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes taxes, and other real estate assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unit), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereofSection 6(c);
(iiiii) fueladministrative charges, if any, supplied permitted under the Leases or applicable law, on security deposits held pursuant to the Purchaser’s UnitLeases;
(iv) fuel supplied for the Building, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completedany, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iiiv) prepaid fees for licenses and other permits assigned to Purchaser at the Closing (it being understood that evidence of such prepayment must be provided to Purchaser);
(vi) any amounts prepaid or payable under all the Assumed Contracts which have been entered into by Sellerand, other than those Contracts which pursuant if Purchaser elects to Section 10.04 are to be terminated by Sellerassume the Property Management Agreement, the Property Management Agreement;
(ivvii) electricity, water, gas, steam, telephone, internet, cable or satellite television and any other utilities, at the rates most recently charged to Seller, plus sales taxes thereon, except to the extent required to be paid by tenants pursuant to Leases in effect as of the Closing Date directly to the entity imposing same;
(viii) all other operating expenses and income with respect to the Purchaser’s UnitProperty which are customarily apportioned;
(vix) any amounts prepaid or payable under the Ground Lease;
(x) any amounts prepaid or payable under the Airspace Lease; and
(xi) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County in which the Property is located; and
(vi) charges for all electricitySeattle, steam and other utility services consumed in the Purchaser’s UnitWashington area.
(bi) All Property Taxes assessed against Monthly base rents (collectively, “Base Rents”) under the Property Leases shall be adjusted and prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill if, as and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominiumwhen collected basis. If the most recent tax bill received Base Rents collected by Purchaser or Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (from tenants who owe Base Rents for the period periods prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller)shall, allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to first deducting Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) actual out-of-pocket costs of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing orcollection, if applicable, the Lease Expiration Date.
be applied, (gA) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.first, to Base Rents attributable to periods from and after Closing and
Appears in 1 contract
Sources: Purchase and Sale Agreement
Apportionments. (a) 3.1 The following shall be apportioned between Seller and Purchaser at the Closing, as of 11:59 p.m. 12:01 A.M. on the day immediately preceding the Closing Date (the “Apportionment Date”), provided 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 no payment shall be due in respect thereof on the Closing Date:hereinafter defined):
(iA) prepaid rents and Additional Rents (as hereinafter defined) and other amounts payable by tenants, in accordance with Sections 3.3 and 3.4 hereof;
(B) real estate taxes, payments in lieu of taxeswater charges, sewer rents and taxes, water rates and vault charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unitif any, on the basis of the respective periods fiscal years, respectively, for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereofsame have been assessed;
(iiC) fuelvalue of fuel stored on the Properties, at Seller's cost (including any taxes), on the basis of a statement from Seller's supplier;
(D) charges and payments under Contracts (as hereinafter defined) that Purchaser elects to assume;
(E) any prepaid items for operating expenses relating to the Properties incurred in the normal course of business (including, but not limited to, fees for licenses that are transferred to Purchaser at the Closing and annual permit and inspection fees);
(F) utilities (including, but not limited to, water, steam, electricity and gas) on the basis of the most recently issued bills therefor, subject to adjustment within sixty (60) days after the Closing when the next bills are available, or, if current meter readings are available at the Closing, on the basis of such readings;
(G) transferable deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Properties, if Purchaser elects to assume the contracts and/or accounts to which said deposits are applicable and the same are assigned to Purchaser at the Closing, which shall be credited in their entirety to Seller;
(H) personal property taxes, if any, supplied to on the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days basis of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interestfiscal year for which assessed;
(iiiI) any amounts prepaid or payable under Seller's share, if any, of all Contracts which have been entered into by Seller, revenues from the operation of the Properties other than rents and Additional Rents (including, but not limited to, parking charges, and telephone booth and vending machine revenues), if, as and when received;
(J) permitted administrative charges, if any, on those Contracts which tenants' security deposits transferred by Seller pursuant to Section 10.04 are to be terminated by Seller;11.1(e); and
(ivK) all other operating expenses with respect as to the Purchaser’s Unit;
(v) each Property, such other items with respect to the Purchaser’s Unit as are customarily apportioned between sellers and purchasers of real properties of a type similar to such Property and located in accordance with the city and state where the same is located.
3.2 If the Closing shall occur before a new real estate closings or personal property tax rate is fixed, the apportionment of commercial properties in taxes at the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against the Property Closing shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and made on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the old tax rate for the period covered by the most current available tax bill preceding fiscal year applied to the latest assessed valuation. Within sixty (60) days after the new tax rate is fixed, the apportionment of taxes shall be recomputed, and any discrepancy resulting from such recomputation shall reprorate be promptly corrected and the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes proper party reimbursed.
3.3 If, on the Property accruing before Closing Date, any tenant is in arrears in the Closing Date shall be the obligation payment of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller rent (other than Additional Rents for the period prior periods January 1, 1998 to December 31, 1998 and January 1, 1999 to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (or has not paid the rent payable by it for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year month in which the Closing occurs will reflect amounts payable (whether or not it is in arrears for such month on the Property as a whole and not for each Unit. In light of the foregoingClosing Date), the amount to be paid any rents received by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and or Seller from such tenant after the Closing Date, shall be applied to rents due and payable by such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth tenant in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) following order of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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.priority:
(dA) With respect first, to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller all rent due and Purchaser acknowledge that payable by such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of tenant during the month in which the Closing Date occursoccurred;
(B) second, (ii) to all rents due and payable by such tenant for the calendar month months immediately succeeding following the month in which the Closing Date occurs occurred, to the month in which such payment is received;
(C) third, to all rents due and payable by such tenant for the month immediately preceding the month in which the Closing Date occurred; and
(iiiD) fourth, to all remaining rent arrearages of such tenant. Tenant arrears as of June 23, 1999 are set forth on SCHEDULE 2-A annexed hereto and made a part hereof (to be updated as of the Closing) and, except as otherwise provided in Section 3.4 hereof with respect to Additional Rents (defined below) for such the periods January 1, 1998 to December 31, 1998 and January 1, 1999 to the Closing Date, the application of rent monies collected after the Closing shall be governed by the provisions of this Section 3.3. If rents, or any portion thereof, received by Seller or Purchaser after the Closing are due and payable to the other period party by reason of the foregoing allocation, the appropriate sum, less a proportionate share of any reasonable attorneys' fees and other costs and expenses incurred in connection with the collection thereof, shall be promptly paid to the other party.
3.4 If, on the Closing Date, pursuant to the 1998 Additional Rent Reconciliation set forth on SCHEDULE 2-B annexed hereto and made a part hereof (if any) to be updated as Seller may elect of the Closing), any tenant is in arrears or was undercharged (whether in its sole discretionmonthly obligations or in an end of year reconciliation) in the payment of percentage rent, escalation charges for real estate taxes, parking charges, operating expenses and maintenance escalation rents or charges, cost-of-living increases, or other charges of a similar nature ("ADDITIONAL RENTS") for the period January 1, 1998 to December 31, 1998, any Additional Rents received by Purchaser or Seller from such tenant after the Closing Date and reasonably identifiable or ascertainable by reference to the 1998 Additional Rent Reconciliation (as updated) shall first be applied (net of all reimbursements to tenants for overpayment of Additional Rent for the period January 1, 1998 to December 31, 1998) to all Additional Rent arrearages of such tenant for the period January 1, 1998 to December 31, 1998 as shown on SCHEDULE 2-B (as updated). With respect to Additional Rents for the period January 1, 1999 to the Closing Date, SCHEDULE 2-C annexed hereto and made a part hereof sets forth monthly (except where otherwise indicated) bill▇▇▇▇ ▇▇ tenants for 1999 based upon estimated expenses. If, on the Closing Date, there are any Additional Rent arrearages for the period January 1, 1999 to the Closing Date (net of all reimbursements to tenants for overpayment of Additional Rent for the period January 1, 1999 to the Closing Date), then, provided first that such tenant is current in all of its rent and Additional Rent obligations for the period commencing with the Closing Date, the next Additional Rents received by Purchaser or Seller from such tenant after the Closing Date shall be applied to all remaining Additional Rent arrearages of such tenant for the period January 1, 1999 to the Closing Date. If Additional Rents or any portion thereof received by Seller exercises such rightor Purchaser after the Closing Date are due and payable to the other party by reason of the foregoing allocation, then Purchaser shall receive the appropriate sum, less a credit against proportionate share of any reasonable attorneys' fees and costs and expenses expended in connection with the Balance in the amount of such prepayment.
(f) All prorations collection thereof, shall be complete promptly paid to the other party. "1999 ADDITIONAL RENT RECONCILIATION" means an accounting to be prepared by Purchaser in calendar year 2000 and final delivered to Seller by no later than six (6) months after Closing orMarch 31, 2000 to determine if applicableSeller's estimated Additional Rent calculation for calendar year 1999 was greater or less than the actual Additional Rent calculation as determined by Purchaser. Seller and its property manager shall, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.in good faith, assist Purchaser:
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. on of the day immediately preceding the Closing Date (the “Apportionment "Adjustment Date”)"):
(a) fixed or base rents ("Rents") which have been prepaid, provided that Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable 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 no payment shall be due in respect thereof on periods which begin before but expire after the Closing Date:, which have been received by Seller;
(ib) real estate taxes, payments in lieu of taxesspecial assessments, water charges, sewer rents and charges with the Seller to be responsible for any period or portion thereof (calculated on a per diem basis) occurring prior to the Adjustment Date and the Purchaser to be responsible for all of the same relating to any period or portion thereof occurring thereafter, regardless of when billed;
(c) value of prepaid fuel belonging to the Seller stored on the Property, at the Seller's cost, including any taxes, water rates and charges, vault on the basis of a statement from the Seller's suppliers;
(d) charges and taxespayments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on Schedule 3 hereto or permitted renewals or replacements thereof;
(e) any prepaid items, business improvement district taxes including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and assessments annual permit and inspection fees;
(f) utilities, to the extent required by Section 3.4;
(g) deposits with telephone and other utility companies, and any other governmental persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(h) personal property taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unitif any, on the basis of the respective periods fiscal year for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereofassessed;
(iii) fuel, if any, supplied to all other revenues from the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days operation of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand Property other than Rents and the current cost thereforAdditional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iiij) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to New Lease Expenses as provided in Section 10.04 are to be terminated by Seller;10.1.2; and
(iv) all other operating expenses with respect to the Purchaser’s Unit;
(vk) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with between sellers and purchasers of real estate closings properties of commercial properties in the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect a type similar to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Datelocated in Deptford Township, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoingNew Jersey.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Dean Witter Realty Yield Plus L P)
Apportionments. (a) The As to each Property, the following items shall be apportioned between Seller the relevant Partnership and Purchaser the Operating Partnership as of 11:59 p.m. on of the day immediately preceding the Closing Date (the “Apportionment Date”), provided it being understood that all such adjustments shall be made to the extent any such amount quantity of OP Units to be apportioned is issued and delivered to the obligation of Seller as tenant under the LeaseAffiliated Partnerships, and that, for purposes thereof, the apportionment Operating Partnership shall occur as be deemed to be the owner of the date Seller ceases to be required to pay the same under the Lease and no payment shall be due in respect thereof Properties on the Closing Date:):
(i1) interest on the Morgan Loan;
(2) the Reserves and Escrows (which will be held by Morgan for the benef▇▇ ▇▇ the Operating Partnership following the Closing);
(3) real estate and personal property taxes, payments in lieu on the usual and customary "DUE DATE" basis;
(4) rents under the Leases for the relevant month, as and when collected;
(5) coin operated laundry concession income;
(6) the full amount of taxesall Security Deposits then held under the Leases;
(7) charges for water, sewer rents sewer, electricity, fuel, gas, telephone and taxesother utilities, water rates which are not metered or otherwise charged directly to tenants under the Leases; provided that if the consumption of any such utilities is measured by meters, at Closing the Partnership shall furnish a current reading of each meter, and chargesprovided, vault further, that if there is not a meter, or if the meter(s) cannot be read by the relevant utility prior to the Closing, the charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against therefor shall be adjusted at the Purchaser’s Unit, Closing on the basis of the respective periods charges for the prior period for which each is assessed or imposedbills were issued, to and shall be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereoffurther adjusted when the bills for the period including the Closing Date are issued;
(ii8) amounts paid or payable under the Service Contracts to be assigned to and assumed by the Operating Partnership;
(9) fuelfees paid for assignable current Licenses;
(10) premiums on existing transferable insurance policies, if any, supplied to the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days or renewals of those expiring prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewithClosing, if any (a letter dated within five (5) Business Days such policy shall, at the option of the Closing Date from Seller’s fuel supplier shall operating Partnership, be conclusive evidence as assigned to and assumed by the quantity of fuel on hand and operating Partnership at the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller;
(iv) all other operating expenses with respect to the Purchaser’s Unit;
(v) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County in which the Property is locatedClosing; and
(vi11) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unitexpenses of operation.
(b) All Property Taxes assessed against the Property shall be prorated between Seller Rents which are due and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted payable to the Condominium. If the most recent tax bill received Partnership by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes any tenant but uncollected as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall not be adjusted at the obligation of SellerClosing. All Property Taxes on rents collected by the Purchaser’s Unit accruing on and operating Partnership after the Closing Date shall be the obligation of Purchaser, subject applied first to the provisions of the Lease, and all Property Taxes on the Verizon Units rentals accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied subsequent to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees then to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) rents past due for the calendar month immediately succeeding the month in which the Closing Date occurs (subject to adjustment). All rent collected after Closing for any period prior to the Closing shall belong to the relevant Partnership, and (iii) for if paid to the Operating Partnership, the Operating Partnership shall promptly send such other period (rent to the relevant Partnership, less all expenses incurred by the Operating Partnership, if any, in regard to the collection thereof. At the Closing, each Partnership shall deliver to the Operating Partnership a schedule of all such past due, but uncollected rents owed by tenants. All rents collected by any Partnership, prior to Closing, for rental period(s) as Seller may elect in its sole discretionsubsequent to the Closing shall be paid by such Partnership to the Operating Partnership at the Closing. If Seller exercises All rents collected by the Operating Partnership or the Affiliated Partnerships for rental periods after the Closing shall belong to the Operating Partnership, and if paid to the Affiliated Partnerships, the Affiliated Partnerships shall promptly send such right, then Purchaser shall receive a credit against rent to the Balance in the amount of such prepaymentOperating Partnership.
(fc) All prorations Any apportionment estimated at the Closing shall be complete and finally adjusted as soon as practicable after the Closing. Any error in the calculation of apportionments shall be corrected subsequent to the Closing with appropriate credits to be given based upon corrected adjustments; provided, however, that all adjustments (except as to errors caused by misrepresentation) shall be deemed final no later than six upon the expiration of ninety (690) months days after the Closing or, if applicable, the Lease Expiration Date.
(gd) The provisions If on the Closing Date, any Property shall be affected by any special assessment for public improvements or otherwise which is or may become payable by the relevant Partnership in annual installments, of which the first installment is then a charge or lien or has been paid, then, for the purposes of this Article 11 shall survive Agreement, all the unpaid installments of such assessment, including those which are to become due and payable after the Closing. ARTICLE 12, shall be deemed to be due and payable and to be liens upon such Property, and shall be paid and discharged by the relevant Partnership at the Closing.
(e) Each Partnership shall be responsible for, and shall pay at or prior to Closing, all amounts due to the Closing Date for employees, salaries, accrued vacation pay, withholding and payroll taxes, and other benefits, and any management fee affecting the Property, or Properties, owned by such Partnership.
Appears in 1 contract
Sources: Agreement for Contribution of Real Estate and Related Property (Acc Corp)
Apportionments. (a) The following shall be apportioned between Seller and Purchaser on a per diem basis as of 11:59 p.m. the close of business on the day immediately preceding the Closing Date (the “"Apportionment Date”), provided 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 no payment shall be due in respect thereof on the Closing Date:"): ------------------
(i) Prepaid rents, fixed rents and additional rents payable pursuant to the Leases (including, without limitation, operating expense escalation payments, real estate taxestax escalation payments and percentage rent, payments if any, payable under the Leases) (collectively, "Rents") to be apportioned in lieu of ----- accordance with Section 5(b) below; ------------
(ii) Real estate taxes, sewer rents and taxes, water rates and chargescharges (to the extent not accounted for pursuant to clauses (i) and (iii) hereof or to the extent not billed to and payable directly by any Tenant), vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, taxes and charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s UnitReal Property (collectively, "Property Taxes"), on the -------------- basis of the respective periods for which each is assessed or imposedimposed or on the basis of meter readings, to be apportioned in accordance with paragraphs this Section 5; ---------
(biii) Charges (to the extent not accounted for pursuant to clauses (i) and (c) of Article 11 hereof;
(ii) fuelabove or to the extent not billed to and payable directly by any Tenant) for electricity, steam, gas and any other utilities (collectively, "Utilities") made by the utility companies servicing the Premises --------- to be apportioned in accordance with Section 5(e) hereof, and transferable ------------ utility deposits, if any, supplied but all amounts refundable under unassigned or unassignable utility agreements shall remain the property of Seller;
(iv) Fuel (to the Purchaser’s Unitextent not accounted for pursuant to clause (i), (ii) or (iii) hereof), if any, based on a reading Seller will endeavor to have completed within five (5) days prior to the Closing or Date or, if not so completed, as reasonably estimated by Seller’s 's supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a any. A letter dated within five (5) Business Days of the Closing Date from Seller’s 's fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iiiv) With respect to the Assumed Debt, all interest payable on the Note attributable to the month in which the Closing shall occur;
(vi) Administrative charges on the cash security deposits held pursuant to the Leases (to the extent permitted by law or by the terms of the applicable Lease);
(vii) prepaid fees for licenses and other permits assigned to Purchaser at the Closing;
(viii) any amounts prepaid or payable by Seller of the Property under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Sellerthe Contracts;
(ivix) all other operating expenses expenses, prepaid or payable, with respect to the Purchaser’s Unit;Premises; and
(vx) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County Borough of Manhattan.
(i) All Rents paid or payable for the billing period in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against the Property Closing Date occurs as set forth on a statement provided by Seller to Purchaser shall be prorated apportioned between Seller and Purchaser on an accrual a per-diem basis based upon as of the actual current tax bill Apportionment Date. In the event that such statement evidences any past due Rents owing by any tenant, for any billing period prior to the billing period in which the Closing date occurs ("Past Due Rents"), such Past Due Rents -------------- (other than Past Due Rents accrued under that certain lease dated as of July 5, 1995, as thereafter amended, between Seller, as Landlord, and Purchaser, as Tenant, demising a portion of the Premises (the "Hilfiger Lease")) shall be -------------- apportioned on the basis of their relative Percentage Interests the period for which the same is payable and if, as and when collected, as follows:
(as defined in the Declarationii) in the Property submitted Purchaser shall use its commercially reasonable efforts to collect Past Due Rent allocable to the Condominium. If the most recent tax bill received by Seller before period commencing January 1, 2000 and continuing up to and including the Closing Date (the "Collection ---------- Period") on behalf of Seller as Seller shall direct, using counsel selected by ------ Seller and at Seller's sole cost and expense. In the course of pursuing the collection of Past Due Rent in accordance with the provisions of the foregoing sentence, Purchaser shall seek any and all remedies against the debtors of such Past Due Rent which remain uncollected after Closing which may be requested by Seller, but Purchaser is not the actual current tax billobligated to bring eviction proceedings against a delinquent tenant, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill unless it decides to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then availabledo so in Purchaser's sole discretion. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and Any Rent received from any such tenant after the Closing Date shall be applied in the obligation following order of Purchaserpriority: (1) first, subject to the provisions payment of the Lease, current Rent and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (reimbursements then due for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, this amount to be apportioned between Purchaser and Seller as set forth in Section 5(b)(i) hereof; and (ii2) for second, to delinquent Rent and reimbursements arising prior to Closing and after Closing which shall be apportioned pro rata between --- ---- Seller and Purchaser on a "50/50" basis, to be applied to the calendar month immediately succeeding most recent pre- Closing arrears first, and then to the month next most recent pre-Closing arrears and continuing in such a manner until all arrears allocable to the Collection Period are paid in full, it being agreed by and between the parties hereto that Seller shall retain all rights to pursue arrears allocable to the period prior to the Collection Period, and, upon request of Seller, Purchaser shall cooperate with Seller with respect to the collection thereof, at Seller's sole cost and expense. Any sums received by Seller or Purchaser to which the other is entitled shall be held in trust, and the party receiving the sum due the other shall remit to the other any such sums received to which the other is entitled within five (5) business days after receipt thereof. The cost and expense of collecting same (including the allocable share of property management fees) shall be allocated between the parties in proportion to the amount of rent each party is entitled to receive pursuant to this Section 5.
(c) Any prepaid Rents shall be retained by Seller and the amount thereof shall be credited to Purchaser at Closing.
(d) Past Due Rent, if any, accrued under the Hilfiger Lease shall be credited to Seller at Closing.
(e) Seller expressly agrees that if Seller receives any amounts after the Closing Date which relate to the billing period in which the Closing Date occurs occurs, Seller shall apportion such amounts in accordance with the terms of this Section 5 and deliver to Purchaser the amount, if any, to which Purchaser is --------- entitled pursuant to the terms hereof within five (5) business days following receipt thereof.
(i) If any amount payable under any Lease, other than fixed rents, to be apportioned hereunder (including, without limitation, percentage rents, escalation payments, whether for taxes, utilities, other operating expenses or otherwise) has not been determined prior to the Closing Date, such payment shall be apportioned on a per diem basis (y) in a manner to be agreed upon in good faith by Seller and Purchaser before the Closing and (iiiz) for such other period if Seller and Purchaser are unable to reach an agreement pursuant to clause (if any) as Seller may elect in its sole discretion. If Seller exercises such righty), then Purchaser shall receive a credit against the Balance in based on the amount of such prepaymentpayment due during the previous year of the applicable Lease plus the rate of increase in such payment since such previous year. Such apportionments shall be adjusted within 120 days subsequent to the Closing Date and shall be set forth on the Final Closing Statement (as defined in Section ------- 5(k) hereof). To the extent that any apportionments based on the actual amounts ---- due may only be determined after the completion of the Final Closing Statement, then the parties agree that such apportionments shall be adjusted after the completion of the Final Closing Statement, but not later than ten (10) business days of such final determination under the Leases, and at such time Purchaser shall furnish Seller with statements in reasonable detail showing the calculation of such apportionments, rents and payments. Seller shall have the right to audit Purchaser's books and records with respect to such items being apportioned. Each of Seller and Purchaser will promptly remit to the other party any amount in excess of the amount to which it is entitled on account of operating expenses in accordance with the foregoing within five (5) business days after a final determination of operating expenses.
(f) All prorations Property Taxes shall be complete and final no later than six (6) months after apportioned on the basis of the fiscal period for which assessed. If the Closing or, if applicableDate 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 Lease Expiration Dateapportionment of such Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding year to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller or Purchaser, as the case may be, shall promptly make an appropriate payment to the other based on such recalculation.
(g) The provisions If there are water meters on 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 this Article 11 an actual reading done prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis 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, such apportionment shall survive be readjusted and Seller or Purchaser, as the case may be, shall promptly deliver to the other the amount determined to be due upon such readjustment.
(h) Utilities 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, such apportionment shall be readjusted and Seller or Purchaser, as the case may be, shall promptly deliver to the other the amount determined to be due upon such readjustment.
(i) At the Closing. ARTICLE 12, Seller shall receive a credit for the (i) amount of the Reserves (only if Purchaser has assumed the Assumed Debt), and (ii) the cost to Seller of all cleaning and other supplies in unopened cartons or packages located at the Premises based on invoices therefor.
(j) Purchaser shall have no right to receive any rental insurance proceeds which relate to the period prior to the Closing Date and, if any such proceeds are delivered to Purchaser, Purchaser shall, within five (5) business days following receipt thereof, pay the same to Seller.
(k) Purchaser agrees that it shall be responsible for the payment of (i) all Tenant Inducement Costs (as hereinafter defined) and leasing commissions which become due and payable (whether before or after the Closing Date) arising from, relating to or in connection with (A) any renewals, modifications, amendments or expansions of existing Leases or other supplementary agreements relating thereto entered into between the date hereof and the Closing Date (which either (X) are provided for in the existing Leases or other supplementary agreements relating thereto or (Y) have been consented to in writing by
Appears in 1 contract
Apportionments. 3.1 The following shall be apportioned with respect to the Premises between Seller and Purchaser concurrently with the execution and delivery hereof and the consummation of the transactions described in this Agreement (the "Closing"), as of midnight of the night preceding the date hereof (the "Closing Date"):
(a) Monthly base rents ("Base Rents") and "Additional Rents" (as hereinafter defined) and other amounts payable by "Tenants" (as hereinafter defined), if, as and when collected;
(b) real estate taxes, water charges, sewer rents and vault charges, if any, on the basis of the fiscal years, respectively, for which the same are assessed, except that if there is a water meter on the Premises, then apportionment of the metered water charges shall be made in accordance with Section 3.6; for purposes of this Agreement, taxes or assessments imposed by any business improvement district in which the Premises is located shall be treated as and included in real estate taxes;
(c) value of fuel stored at the Premises, at Seller's cost, including any taxes, on the basis of a statement from Seller's supplier;
(d) charges and payments under "Contracts" (as hereinafter defined) which are assigned to Purchaser pursuant to Section 12.1(d) hereof;
(e) any prepaid items of operating expenses relating to the Premises including annual permit and inspection fees;
(f) to the extent Purchaser has not arranged a transfer of accounts effective as of the Closing Date, utilities, including telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings;
(g) transferable deposits, if any, with telephone and other utility companies and any other persons or entities who supply goods or services in connection with the Premises, if assigned (at Purchaser's election) to Purchaser at the Closing, in which case the amounts of such deposits shall be credited in their entirety to Seller;
(h) Seller's share, if any, of all revenues from the operation of the Premises other than rents and Additional Rents (including parking charges, and telephone booth and vending machine revenues), if, as and when received;
(i) permitted administrative charges, if any, on those Tenants' security deposits transferred by Seller pursuant to Section 12.1(c);
(j) wages (including the related payroll taxes), vacation pay, pension and welfare benefits, and other fringe benefits of all persons employed at the Premises whose employment was not terminated at or prior to the Closing; to the extent applicable, such items shall be apportioned in accordance with any rules or procedures provided for under the "Union Contracts" (as hereinafter defined); and
(k) such other items as are customarily apportioned between Seller and purchasers of real properties of a type similar to the Premises and located in the City and County of New York.
3.2 [Intentionally Deleted]
(a) If on the Closing Date any Tenant is in arrears in the payment of Base Rent or Additional Rent, or has not paid the Base Rent payable by it for the month or the Additional Rent payable by it for the billing period in which the Closing occurs (whether or not such Tenant is in arrears for such month or billing period on the Closing Date), then any Base Rents and Additional Rents received by Purchaser or Seller from such Tenant (hereinafter, even if such Tenant is not in arrears, referred to as a "Delinquent Tenant") after the Closing shall be apportioned, paid, and applied, on a tenant-by-tenant basis, in the following order of priority:
(i) first, to Seller for application to past due Additional Rents for the item described as "Retro Electric" on the last page of the "Arrearages Schedule" (hereinafter defined) annexed hereto, which item represents electricity charges billed, due and unpaid for the calendar year 2000;
(ii) then, to Seller for application to past due Base Rents and to past due Additional Rents for electricity, in each case for the month preceding the month in which the Closing occurred, and as more fully shown on the Arrearages Schedule;
(iii) then, to apportionment between Seller and Purchaser for application to past due Base Rents and to past due Additional Rents for electricity, in each case for the month in which the Closing occurred;
(iv) then, to Purchaser for application to Base Rents and to Additional Rents for electricity due and unpaid for any month or months following the month in which the Closing occurred;
(v) then, to Seller for application to Base Rents and to Additional Rents for electricity due and unpaid for any month or months prior to the month preceding the month in which the Closing occurred, as more fully shown on the Arrearages Schedule;
(vi) then, to Seller for application to all other past due Additional Rents for the billing period preceding that in which the Closing occurred, as more fully shown on the Arrearages Schedule;
(vii) then, to apportionment between Seller and Purchaser for application to all other past due Additional Rents for the billing period in which the Closing occurred;
(viii) then, to Purchaser for application to all other past due Additional Rents for any billing period or periods following the billing period in which the Closing occurred;
(ix) then, to Seller for application to all other past due Additional Rents for any billing period or periods prior to the billing period preceding the billing period in which the Closing occurred, as more fully shown on the Arrearages Schedule.
(b) If any Base Rents or Additional Rents, or any portion of either thereof, received by Seller or Purchaser after the Closing are due and payable to the other party by reason of the above allocation, then the appropriate sum, less a proportionate share of any reasonable attorneys' fees and reasonable costs and expenses expended in connection with the collection thereof, shall be held in trust by the recipient party for the other party and promptly paid to such other party. If any payment shall be received by Seller or Purchaser after the Closing from a Delinquent Tenant, then the proceeds thereof shall be applied in accordance with the order of priority provided in Section 3.3(a) above, regardless of whether any other application may have been denoted thereon or in any accompanying written communication by such Tenant.
(a) If any Tenants are required to pay percentage rent, escalation or "pass-through" charges for real estate taxes, fuel, electricity, labor, porter's wage or other operating expenses, parking charges, c▇▇▇-▇▇-▇iving increases, common area maintenance charges, or other charges of a similar nature ("Additional Rents"), and any Additional Rents are received by Purchaser after the Closing Date, or by Seller before or after the Closing Date, from a Tenant other than a Delinquent Tenant, then such Additional Rents shall be applied as follows:
(i) first, to Seller for application to Additional Rents for the billing period preceding that in which the Closing occurred;
(ii) then, to apportionment between Seller and Purchaser for application to Additional Rents for the billing period in which the Closing occurred; and
(iii) then, to Purchaser for application to Additional Rents for the billing period or periods following the billing period in which the Closing occurred. Each party shall hold any Additional Rents so received by it in trust for the party so entitled thereto, and shall promptly remit to such party the amounts thereof which are payable to such party pursuant to such order of priority.
(b) With respect to any percentage rents and other Additional Rents for the calendar year in which the Closing occurs, if and to the extent the same are not determined, billed, or collected until after the end of such year, or, if applicable, until after the close of a lease year ending after the Closing Date, then (i) the same shall be apportioned and appropriate settlement between the parties made promptly after such determination, billing, and collection; and (ii) if any such percentage or other Additional Rents are ordinarily not billed to a Tenant until after the close of the calendar year in which the Closing occurs, or, if applicable, until after the close of a lease year ending after the Closing Date, then the same shall be billed by Purchaser after the end of such calendar year or lease year, as the case may be, as promptly as permitted under the applicable terms of such Tenant's Lease and Seller shall provide Purchaser with the information necessary to accomplish such billing (to the extent such information is not in Purchaser's possession). Notwithstanding anything in the preceding sentence to the contrary, if there shall be any unbilled Additional Rents attributable in whole or in part to any period prior to the Closing Date which may be billed to Tenants at any time after the Closing, then, if Seller so requests, the same shall be billed by Purchaser for Seller's account after the Closing promptly after such request by Seller.
(c) The following apportionment of percentage rents, if any, shall be made on the basis of a full calendar year or lease year, as the case may be, and on the basis of such rents having been earned ratably throughout such year. For example, if percentage rent for a lease shall be based upon the lease year July 1, 2000 through June 30, 2001, or any other lease year which includes and ends after the Closing Date, then the annual percentage rent attributable to such lease year shall be divided by 365 to determine the average percentage rent per diem, and Seller and Purchaser shall each be entitled to that portion of such annual percentage rent equal to the product obtained by multiplying such per diem rent by the number of days within such lease year that Seller and Purchaser, respectively, owned the Premises.
(a) After the Closing, Seller shall continue to have the right, in its own name, to bill, demand payment of, and collect rent and Additional Rent ▇▇▇earages owed to Seller by any Tenant on the Closing Date, or arrearages owed to Seller after the Closing Date in the case of any Additional Rents attributable to the period prior to the Closing Date and not billed until after the Closing Date, which right shall include the right to continue or commence legal actions or proceedings against any Tenant for the payment of such arrearages (provided, however, that Seller shall not commence or continue any legal action or proceeding to terminate a Tenant's tenancy), and delivery of the "Space Lease Assignment" (as hereinafter defined) shall not constitute a waiver by such Seller of such right. At no cost to Purchaser, or if Purchaser incurs any out-of-pocket cost with Seller's prior written consent, then Seller agrees to reimburse Purchaser for same, Purchaser agrees reasonably to cooperate with Seller, and Seller agrees reasonably to cooperate with Purchaser, after the Closing in connection with all efforts by Seller or Purchaser, respectively, to collect such past due rents and Additional Rents from any Tenant so in arrears. Such cooperation by each party ("cooperating party") at the request of the other ("requesting party") shall include (i) in the case of Purchaser as the cooperating party, adding such rent arrearages to Purchaser's bills to such Tenant for current rent obligations; (ii) testifying on behalf of the requesting party; (iii) delivering to the requesting party, upon request, any relevant books and records (including any rent or Additional Rent statements, receipted bills and copies of Tenant checks used in payment of such rent or Additional Rent); (iv) executing such consents or other documents as may be reasonably requested by the requesting party; and (v) taking such other reasonable actions as may be reasonably requested by the requesting party in order to assist such party in the collection of such rents and Additional Rents.
(b) Purchaser shall not waive, compromise, settle, release or discharge any claims against any Tenants for any past due rent or Additional Rent owed to Seller without the prior written consent of Seller.
(c) Purchaser shall furnish Seller with copies of all bills for rent or Additional Rent (to the extent such bills include items or amounts apportionable to Seller) rendered by Purchaser after the Closing with respect to the year (lease year or calendar year, as the case may be) in which the Closing occurs. Seller shall be given reasonable access by Purchaser after the Closing, on reasonable prior notice to Purchaser, to Purchaser's books and records with respect to the Premises in order to enable Seller to ascertain and verify rent collections and the like for purposes of determining Seller's rights to any apportionments to be paid to Seller after the Closing under this Section 3.
3.6 To the extent water charges and sewer rent are based on the water meters on the Premises, such items shall be apportioned on the basis of the most recent meter readings available as of the Closing Date, subject to reapportionment after the Closing when the next readings becomes available.
3.7 [Intentionally Deleted]
(a) In the event Seller shall in the past have made any overpayments with respect to real estate taxes or water or sewer charges or similar items, which overpayments were not otherwise adjusted hereunder, then, and in such event, any refunds with respect to such overpayments shall remain the sole and absolute property of Seller, and Purchaser hereby relinquishes all claims thereto. If and to the extent any overpayments of such items were apportioned at Closing, then the corresponding refunds shall be similarly apportioned. Any refunds arising from any such overpayment received by Purchaser after the Closing and payable to Seller pursuant to this Section shall be held by Purchaser in trust for Seller and remitted forthwith to Seller.
(b) Without limiting the generality of Section 3.8(a): all net real estate tax refunds and credits attributable to any tax year prior to the tax year in which the Closing occurs shall belong to and be the property of Seller; all net tax refunds and credits attributable to any tax year subsequent to the tax year in which the Closing occurs shall belong to and be the property of Purchaser; and all net tax refunds and credits attributable to the tax year in which the Closing occurs shall be apportioned between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Apportionment Date”), provided that according to the extent any respective portions of 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 no payment shall be due in respect thereof on the Closing Date:
year (i) real estate taxes, payments in lieu of taxes, sewer rents and taxes, water rates and charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unit, on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereof;
(ii) fuel, if any, supplied to the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller;
(iv) all other operating expenses with respect to the Purchaser’s Unit;
(v) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing DateDate and (ii) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned each tax refund or credit in accordance with clause (iiiSection 3.8(a) or (ivin this Section 3.8(b) of paragraph (a) abovedescribed, Seller there shall be apportioned between the parties and Purchaser acknowledge that deducted therefrom all reasonable expenses, including, without limitation, reasonable counsel fees and disbursements and reasonable consultant's fees, actually incurred in obtaining such expenses are for more than just the Purchaser’s Unit and, after the Closing, are refund. All tax refunds to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium either party after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) contemplated under this Section 3.8 shall be made net of any amounts due to Tenants on account of any such tax refunds, and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause jointly determine such amount(s) (if any) due Tenants and direct the Board Seller's tax protest or certiorari counsel to cooperate with deduct such amounts from the gross tax refund and to forward the same to the appropriate Tenant(s) prior to making any payment to Seller and or Purchaser in making these calculations(as the case may be).
(e) At 3.9 If any of the items subject to apportionment under the foregoing provisions of this Section 3 cannot be apportioned at the Closing because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in computing apportionments at the Closing are discovered subsequent to the Closing, Seller then such item shall be reapportioned and such errors and omissions corrected as soon as practicable after the Closing Date and the proper party reimbursed. No party shall have the right to prepay require the fixed annual base rent payable under recomputation of a Closing apportionment or the Lease correction of an error or omission in a Closing apportionment unless such party (ia) for has obtained the period from previously unavailable information or has discovered the Closing Date error or omission, and (b) has given notice thereof to the end other party together with a copy of its good faith recomputation of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs apportionment and (iii) for such other 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 copies of such prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.all substantiating info
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between Seller and Purchaser at the Closing as of 11:59 p.m. on midnight of the day immediately preceding the Closing Date (the “Apportionment Date”), provided 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 no payment shall be due in respect thereof on the Closing Date:
(i) amounts payable by tenants (including fixed rents, percentage rents, additional rents and tax and operating expense escalation and pass-throughs), if, as and when received;
(ii) all ad valorem, real estate taxesand school taxes (no matter how levied or denominated) (based upon the maximum discounted rate), payments in lieu of taxeswater charges, sewer rents and taxes, water rates and vault charges, vault charges and taxesif any, business improvement district taxes and assessments and any other governmental taxestaxes in the nature thereof on the basis of the fiscal years, respectively, for which same have been assessed, but excluding any tangible or personal property taxes due on any personal property not being transferred pursuant to this Agreement;
(iii) charges and payments under transferable Contracts or assessments permitted renewals or replacements thereof which are transferred to Purchaser;
(collectivelyiv) any prepaid items, “Property Taxes”including, without limitation, fees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees;
(v) levied or assessed against the Purchaser’s Unitutilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the respective periods for which each is assessed most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or imposedif current meter readings are available, to be apportioned in accordance with paragraphs (b) and (c) on the basis of Article 11 hereofsuch readings;
(iivi) fueldeposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Premises if same are assigned to Purchaser at the Closing, which shall be credited in their entirety to Seller;
(vii) personal property taxes, if any, supplied to on the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days basis of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interestfiscal year for which assessed;
(iiiviii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, revenues from the operation of the Premises other than those Contracts which pursuant to Section 10.04 are to be terminated by Sellerrents of whatever kind or nature (including, without limitation, parking charges, and telephone booth and vending machine revenues), if, as and when received;
(ivix) all other operating expenses with respect taxes which are payable and which relate to operations of the Purchaser’s Unit;Premises, including, without limitation, business and occupancy taxes and sales tax, if any; and
(vx) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with between sellers and purchasers of real estate closings properties of commercial properties a type similar to the Premises and located in the City of Jacksonville, County of ▇▇▇▇▇ and State of Florida. Notwithstanding anything else contained herein, there shall be no apportionment for Seller's insurance because the Purchaser will not be assuming the same at the Closing and County in which Seller shall have the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in right to cancel the Purchaser’s Unitsame at the Closing.
(b) All Property Taxes assessed against If the Property Closing shall occur before a new real estate or personal property tax rate is fixed or tax bill is issued, the apportionment of taxes at the Closing shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent old tax rate or tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available preceding tax bill fiscal year applied to the latest assessed valuation, and shall reprorate . Promptly after the Property Taxes retroactively when the actual current new tax rate is fixed or tax bill is then availableissued, the apportionment of taxes shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing in accordance with Section 3(d). All Property Taxes such tax prorations shall be made based upon the tax which would be due assuming that the maximum discounted tax rate is employed.
(c) If there is a water meter on the Property accruing before Premises, Seller shall furnish a reading on the Closing Date, and the unfixed water charges and sewer rent, if any, based thereon for the intervening time shall be apportioned on the basis of such last reading.
(d) If any of the items subject to apportionment under the foregoing provisions of this Section 3 cannot be apportioned at the Closing because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in computing apportionments at the Closing are discovered subsequent to the Closing, then such item shall be reapportioned and such errors and omissions corrected as soon as practicable after the Closing Date and the proper party reimbursed, which obligation shall be survive the obligation Closing for a period of Sellerthree hundred sixty-five (365) days after the Closing Date as hereinafter provided. All Property Taxes on Neither party hereto shall have the Purchaser’s Unit accruing on right to require a recomputation of a Closing apportionment or a correction of an error or omission in a Closing apportionment unless within the aforestated three hundred sixty-five (365) day period one of the parties hereto (i) has obtained the previously unavailable information or has discovered the error or omission, and (ii) has given notice thereof to the other party, together with a copy of its good faith recomputation of the apportionment and copies of all substantiating information used in such recomputation. The failure of a party to obtain any previously unavailable information or discover an error or omission with respect to an item subject to apportionment hereunder and to give notice thereof as provided above within three hundred sixty-five (365) days after the Closing Date shall be the obligation deemed a waiver of Purchaser, subject its right to the provisions cause a recomputation or a correction of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller an error or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable omission with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and item after the Closing Date, such percentage . Notwithstanding any of the foregoing provisions of this Section 3(d) to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lotcontrary, Purchaser and Seller agree that the three hundred sixty-five (365) day limitation set forth in this Section 3(d) shall pay not apply to the Board monthly a sum equal to one twelfth (1/12parties' obligations under Section 3(b) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) obligations shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after survive the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculationsforever.
(e) At If, on the Closing Date, the Premises or any part thereof shall be affected by any governmental assessment or assessments (whether payable in a lump sum or payable in installments), then Seller shall be obligated to pay on or before the Closing such lump sum payment(s) or all installments of any such assessment(s).
(f) Seller shall have the responsibility to remit sales tax owing on all leases of the Premises for the periods prior to Closing except for amounts actually collected by Purchaser after Closing.
(g) Within ninety (90) days after the Closing, Seller shall provide to Seller a receipt from the Florida Department of Revenue showing that all sales taxes due in connection with the leases of the Premises for the periods prior to Closing have been paid in full or a certificate from the Florida Department of Revenue stating that no taxes, interest or penalties are due in connection with the leases of the Premises for the periods prior to Closing.
(h) Purchaser shall have the right responsibility to prepay remit sales tax owing on all leases of the fixed annual base rent payable under Premises for the Lease periods including and after Closing except for amounts actually collected by Seller after the Closing.
(i) There shall be no apportionment for the period from contract which is the Closing Date subject of the Notice of Commencement which is listed as a Permitted Encumbrance. Rather Seller shall remain responsible for this contract in full because it relates to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 Seller's business operations in the amount of such prepaymentpremises it occupies rather than to the Premises as a whole.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. on of the day immediately preceding the Closing Date (the “Apportionment Date”"ADJUSTMENT DATE"):
(a) fixed or base rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), provided that Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable 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 no payment shall be due in respect thereof on periods which expire after the Closing Date:, which have been received by Seller;
(ib) real estate taxes, payments special assessments (but only any installment relating to the period in lieu of taxeswhich the Adjustment Date occurs), water charges, sewer rents and taxes, water rates charges and vault charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unitif any, on the basis of the respective periods fiscal years (or applicable billing period if other than a fiscal year), respectively, for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and same have been assessed;
(c) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of Article 11 hereofthis Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereof;
(iid) fuelany prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(g) personal property taxes, if any, supplied to on the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days basis of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interestfiscal year for which assessed;
(iiih) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other revenues from the operation of the Property other than those Contracts which pursuant to Section 10.04 are to be terminated by SellerRents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(ivi) all other operating expenses with respect to the Purchaser’s Unit;New Lease Expenses as provided in Section 10.1.2; and
(vj) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with between sellers and purchasers of real estate closings properties of commercial properties a type similar to the Property and located in the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unitof Florida.
(b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Witter Dean Realty Income Partnership I Lp)
Apportionments. (a) A. The following shall be apportioned between Seller and Purchaser at the Closing with respect to the Premises as of 11:59 p.m. on of the day immediately preceding the Closing Date Date, and the net amount thereof either shall be paid by Purchaser to Seller or credited to Purchaser, as the case may be, at the Closing (the “Apportionment Date”)or thereafter, provided that pursuant 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 no payment shall be due in respect thereof on the Closing Date:terms hereof):
(i) real estate Real property taxes and assessments (or installments thereof), BID taxes, payments in lieu of taxes, sewer rents and taxes, water rates and charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises, except those required by Leases to be paid by a Tenant directly to the entity imposing same;
(collectivelyii) Water rates and charges, except those required by Leases to be paid by a Tenant directly to the entity imposing same;
(iii) Sewer taxes and rents, except those required by Leases to be paid by a Tenant directly to the entity imposing same (collectively with the items described in the immediately preceding clauses (i) and (ii), “Property Taxes”);
(iv) levied or assessed against the Purchaser’s UnitPermit, license and inspection fees, if any, on the basis of the respective periods fiscal year for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereof;
(ii) fuellevied, if any, supplied to the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made rights with respect thereto are transferred to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller;
(iv) all other operating expenses with respect to the Purchaser’s Unit;
(v) such other items with respect Fuel, if any, at the cost per gallon most recently charged to Seller as of the Closing Date, based on the supplier’s measurements thereof, plus sales taxes thereon, which measurements shall be given by Seller to Purchaser as close to the Closing Date as is reasonably practicable (but in no event more than two (2) Business Days prior to Closing), and which, absent manifest error, shall be conclusive and binding on the Seller and Purchaser’s Unit , except those required by Leases to be paid by a Tenant directly to the entity imposing same;
(vi) Deposits on account with any utility company servicing the Premises to the extent transferred to Purchaser shall not be apportioned, and Seller shall receive a credit in the full amount thereof (including accrued interest thereon, if any);
(vii) Rents (as are customarily apportioned hereinafter defined), if, as and when collected, in accordance with real estate closings of commercial properties Section 7(F) hereof;
(viii) Leasing Costs (as hereinafter defined), in the State accordance with Section 20(B) hereof;
(ix) Payments due under any Surviving Contracts;
(x) Wages and County fringe benefits (including, without limitation, vacation pay, sick days, health, welfare, pension and disability benefits) and other compensation payable to all Employees (other than and not including pension withdrawal liability, which is addressed in which the Property is locatedArticle 11 hereof); and
(vixi) charges for all electricity, steam and All other utility services consumed items customarily apportioned in connection with the Purchaser’s Unitsale of similar properties similarly located.
(b) All B. Apportionment of Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and made on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominiumfiscal year for which assessed. If the most recent Closing Date shall occur before an assessment is made or a tax bill received by Seller before rate is fixed with respect to Property Taxes for the tax period in which the Closing Date is occurs, apportionment for any item not yet fixed shall be made on the actual current tax bill, then Seller and Purchaser shall initially prorate basis of the Property Taxes as of the Apportionment Date by applying 100% of the tax Tax rate for the period covered by the most current available tax bill preceding year applied to the latest assessed valuation. After the tax rate for Property Taxes is finally fixed, Seller and Purchaser shall promptly make a recalculation of the apportionment of same after the Closing, and Seller or Purchaser, as the case may be, shall reprorate make an appropriate payment to the other based upon such recalculation.
C. Any unpaid amounts due in respect of Property Taxes retroactively when the actual current tax bill which Seller is then available. All Property Taxes on the Property accruing before obligated to pay and discharge, with interest and penalties thereon (if any) to the Closing Date shall may, at Seller’s option, be allowed to Purchaser out of the obligation balance of Seller. All the Purchase Price, provided that official bills therefor with interest and penalties thereon (if any) are furnished by Seller at the Closing and provided that the Title Insurer will omit same as exceptions from Purchaser’s title insurance policy, at no additional cost or expense to Purchaser.
D. If any refund of Property Taxes on the Purchaser’s Unit accruing on and is made after the Closing Date shall be the obligation of Purchaser, subject covering a period prior to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and and/or after the Closing Date Date, the same shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall applied first be applied to the unreimbursed thirdreasonable out-party of-pocket costs incurred by Seller or Purchaser Purchaser, as the case may be, in obtaining the refund, same and the balance, if any, shall of such refund shall, to the extent received by Purchaser, be paid to Seller (for to the extent that any portion thereof is attributable to the period prior to the Closing Date) Date and, unless to the extent received by Seller, be paid to Purchaser to the extent that any portion thereof is attributable to the period commencing on the Closing Date. Any payment to Seller pursuant to the immediately preceding sentence shall be net of any amount payable to a Tenant in accordance with its Lease (and any payment to Purchaser by Seller pursuant to the immediately preceding sentence shall include (without double counting) any amount payable to a Tenant in accordance with its Lease, and Purchaser shall promptly pay any such amounts received by Purchaser from Seller to the extent owing to such Tenant pursuant to its Lease. Purchaser hereby agrees to indemnify, defend and hold harmless Seller against any claims, losses, costs and expenses incurred by Seller to the extent resulting from Purchaser’s failure to remit such amount payable to such Tenant pursuant to its Lease promptly after receipt thereof from Seller by Purchaser (in which event such refunds including, without limitation, any reasonable attorneys’ fees, disbursements and court costs). Purchaser’s indemnification obligations hereunder shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after survive the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value and delivery of the Property Deed.
E. If there are meters measuring water consumption or sewer usage at the Property Taxes payable with respect (other than meters measuring water consumption or sewer usage for which a Tenant is obligated to pay under its Lease directly to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Datetaxing authority or utility), Seller shall be authorized attempt to continue obtain readings to prosecute such proceeding and shall be entitled a date not more than thirty (30) days prior to any abatement proceeds therefrom allocable to any period before the Closing Date, and apportionment for water rates and charges and sewer taxes and rents shall be made based on such reading. If such readings are not obtained (and if such readings are obtained, then with respect to any period between such reading and the Closing Date), water rates and charges and sewer taxes and rents, if any, shall be apportioned based upon the last meter readings, subject to reapportionment when readings for the relevant period are obtained after the Closing Date, and the parties shall, within five (5) business days following notice of the determination of such actual reading, make an appropriate payment to the other based upon such recalculation. Charges for all electricity, steam, gas and other utility services (collectively, “Utilities”) shall be billed to Seller’s account up to the Closing Date and, from and after the Closing 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 (which shall be made no more than thirty (30) days prior to the Closing Date). If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the parties shall, within five (5) business days following notice of the determination of such actual reading, readjust such apportionment and make an appropriate payment to the other based upon such recalculation. If any of the Tenants pay electric charges based on a submeter for their electric consumption, then Seller shall cause any such submeter to be read as close as possible to the Closing Date and upon completion of such reading, Seller shall b▇▇▇ each such Tenant electric charges, based on such reading. At the Closing, Seller shall provide the Purchaser with documentation as to any such readings and b▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoingfor submetered electric charges.
(c) Property Taxes for F. To the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by extent that Seller or Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and receives Rents after the Closing Date, such percentage to the same shall be the Percentage Interest attributable to held in trust by Seller or Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax billcase may be, and shall be credited by applied in the Board with the amount order of any excess payments. In the event of any conflict between priority set forth in this provision 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 governSection 7(F).
(di) With respect to The following terms shall be as defined herein: “Base Rents”: fixed rent, and other amounts apportioned in accordance with clause of a fixed nature (iii) which may include, without limitation, electric inclusion and supplemental water, HVAC and condenser water charges paid or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not payable by Purchaser, but by the Board on behalf Tenants); “Overage Rents”: a percentage of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as Tenant’s business during a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge specified annual or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other period (if any) sometimes referred to as Seller may elect “percentage rent”), so-called “escalation rent”, and additional rent based upon increases in its sole discretion. If Seller exercises such rightor otherwise attributable to real estate and BID taxes, then Purchaser operating expenses, utility costs, a cost of living index or p▇▇▇▇▇’▇ wages or otherwise, but which shall receive a credit against the Balance in the amount of such prepayment.
no event include Reimbursable Payments (f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.as hereinafter defined); “Reimbursable Payments”:
Appears in 1 contract
Sources: Sale Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Apportionments. (a) 3.1 The following shall be apportioned between Seller and Purchaser at the Closing, as of 11:59 p.m. on midnight of the day immediately night preceding the Closing Date on the basis of the actual number of days of the relevant period and a year of three hundred sixty five (the “Apportionment Date”)365) days:
(a) prepaid rents, provided that Additional Rents and other amounts payable by Tenants, if, as and when received;
(b) to the extent not payable directly by any such amount to be apportioned is the obligation of Seller as tenant Tenants under the Leasetheir Leases, the apportionment shall occur as of the date Seller ceases to be required to pay the same under the Lease and no payment shall be due in respect thereof on the Closing Date:
(i) real estate taxes, payments in lieu of personal property taxes, water charges, sewer rents and taxes, water rates and vault charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unitif any, on the basis of the respective periods fiscal years, respectively, for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and the same have been assessed;
(c) the value of Article 11 hereoffuel stored at the Properties, at Seller’s cost (including, without limitation, any taxes), on the basis of a statement from Seller’s supplier;
(d) charges and payments under Contracts that are transferred to, and assumed by, Purchaser;
(e) any prepaid items relating to the Properties (including, without limitation, fees for Licenses that are transferred to Purchaser at the Closing and annual inspection fees);
(f) utilities (including, without limitation, telephone, steam, electricity and gas), either:
(i) to the extent that current meter readings are available, on the basis of such readings; or
(ii) fuelto the extent that current meter readings are unavailable, on the basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available;
(g) transferable deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Properties, if same are assigned to Purchaser at the Closing, which deposits shall be credited in their entirety to Seller;
(h) annual permit, license and inspection fees, if any, supplied to on the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewithbasis of the fiscal year for which levied, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as rights thereunder are transferable to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iiii) any amounts prepaid itemized supplies on hand in unopened cartons or payable under all Contracts which have been entered into by other containers, at Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller;’s cost plus applicable sales taxes; and
(ivj) all other operating expenses with respect as to the Purchaser’s Unit;
(v) each Property, such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with between sellers and purchasers of real estate closings properties of commercial properties a type similar to the Properties and located in the State city and County in which state where the Property is located; and
(vi) charges for all electricity. In addition to the foregoing apportionments, steam and other utility services consumed Purchaser shall be credited with the Net Tenant Incentive Reimbursement, determined as set forth in the Purchaser’s UnitSection 3.7 below.
(b) All Property Taxes assessed against 3.2 If the Property Closing shall occur before a new real estate or personal property tax rate is fixed, then the apportionment of taxes at the Closing shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and made initially on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed, any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party shall be reimbursed.
3.3 If, on the Closing Date, any Tenant is in arrears in the payment of rent, or has not paid the rent payable by it for the month in which the Closing occurs (whether or not it is in arrears for such month on the Closing Date), any rents received by Purchaser or Seller from such Tenant after the Closing shall be paid and applied in the following order of priority:
(a) first, to Seller and Purchaser (to be allocated between them as provided in Section 3.1), to the extent of all rent due and payable by such Tenant for the month in which the Closing occurs;
(b) next, to Purchaser, to the extent of all rent due and payable by such Tenant for the month after the month in which the Closing occurs;
(c) next, to Seller, to the extent of all rent due and payable by such Tenant for the month prior to the month in which the Closing occurs;
(d) next, to Purchaser, to the extent of all rent due and payable by such Tenant for the month or months after the month provided for in Section 3.3(b) above; and
(e) last, to Seller, to the extent of all rent due and payable by such Tenant for the period prior to the month provided for in Section 3.3(c) above. If rents, or any portion thereof, received by Seller or Purchaser after the Closing are due and payable to the other party by reason of this Section 3.3, the appropriate sum, less a proportionate share of any reasonable attorneys’ fees and costs and expenses expended in connection with the collection thereof, shall be promptly paid to the other party.
3.4 Purchaser shall promptly pay to Seller, out of the first “pass-through” charges for real estate taxes, operating expenses and/or other charges of a similar nature (“Additional Rents”) received from each Tenant, the amount of all Additional Rents that are due and payable by such Tenant with respect to any period prior to the Closing Date (whether or not such Additional Rents first became due and payable on or after the Closing Date), less a proportionate share of any reasonable attorneys’ fees and costs and expenses of collection thereof. Notwithstanding anything provided herein to the contrary, if it shall be determined by any court or arbitrator of competent jurisdiction that any Additional Rents charged to any Tenants prior to the Closing Date were in excess of what Seller was entitled to charge such Tenants, then, as between Seller and Purchaser, Seller shall be responsible for reimbursing such Tenants for any such overcharges, and Purchaser shall have no liability as a result of any such overcharges. Each of the parties shall cooperate with the other in all reasonable respects in connection with the preparation and distribution to the Tenants of reconciliation statements for Additional Rents due for the 2004 calendar year (if such statements are not prepared and distributed by Seller prior to the Closing) and for the 2005 calendar year, and each party shall promptly deliver to the other party true and complete copies of all of such reconciliation statements issued thereby.
3.5 After the Closing, Seller shall continue to have the right, in its own name, to demand payment of, and to collect, rent and/or Additional Rent arrearages owed to Seller by any Tenant, which right shall include the right to commence and/or continue legal actions or proceedings against any Tenant for the payment of any such arrearages, provided, however, that Seller shall not commence or continue any legal action or proceeding to terminate a Tenant’s tenancy. Seller’s delivery of the Lease Assignment to Purchaser at Closing shall not constitute a waiver by Seller of such right. Purchaser shall cooperate with Seller in all reasonable respects in connection with Seller’s efforts to collect such rents and/or Additional Rents, and shall reprorate take all reasonable steps, whether before or after the Property Taxes retroactively when Closing Date, as may be necessary or desirable in order to carry out the actual intention of the foregoing, including, without limitation:
(a) adding any such arrearages to Purchaser’s bills to such Tenant for current tax bill is then availablerental obligations;
(b) delivering to Seller, upon demand, any relevant books and records (including, without limitation, any rent and/or Additional Rent statements, receipted bills and copies of Tenant checks used in payment of rent and/or Additional Rent);
(c) executing and delivering to Seller any and all reasonably required consents or other documents;
(d) testifying on behalf of Seller at any legal actions or proceedings in which collection of such rents and/or Additional Rents has become an issue; and
(e) performing any other reasonable act that shall be necessary or desirable in furtherance of Seller’s collection of such rents and/or Additional Rents. All Property Taxes on Purchaser shall not be obligated to incur any out-of-pocket cost or expense in connection with such cooperation, provided, however, that, if any such action requested in writing by Seller shall entail such cost and/or expense, then:
(i) Purchaser shall notify Seller of such cost and/or expense in writing (including Purchaser’s reasonable estimate of the Property accruing before amount thereof) prior to taking such action;
(ii) Purchaser shall nonetheless take such action if Seller notifies Purchaser that Seller will reimburse Purchaser for the reasonable, out-of-pocket cost and/or expense thereof; and
(iii) Seller shall reimburse Purchaser for such reasonable, out-of-pocket costs and/or expenses promptly after Seller’s receipt of a reasonable detailed invoice in connection therewith. If any such Tenant, in response to Seller’s legal actions or proceedings to recover any such rent and/or Additional Rent arrearages, commences its own legal action against Seller, or files a counterclaim to Seller’s legal action or proceeding, and such Tenant’s legal action or counterclaim names Purchaser as a defendant and relates to the issues raised in Seller’s legal action or proceeding, then, in such event, Seller shall indemnify, hold harmless and defend Purchaser with counsel of Seller’s choice and reasonably acceptable to Purchaser with respect to any such legal action or counterclaim. Purchaser shall not waive, compromise, settle, release, or discharge any claims against any Tenants for any past due rents and/or Additional Rent accrued prior to the Closing Date without Seller’s prior written consent.
3.6 If any of the items subject to apportionment under the foregoing provisions of this Article 3 cannot be apportioned at the Closing because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in computing apportionments at the Closing are discovered subsequent to the Closing, then such item shall be reapportioned, such errors and omissions shall be corrected and the obligation proper party shall be reimbursed as soon as practicable after the Closing. Neither party shall have the right to require a recomputation of Sellera Closing apportionment, or the correction of an error or omission in a Closing apportionment, unless one of the parties:
(a) has obtained the previously unavailable information or has discovered the error or omission; and
(b) has given notice thereof to the other party, together with a copy of its good faith recomputation of the apportionment and copies of all substantiating information used in such recomputation. All Property Taxes on the Purchaser’s Unit accruing on The failure of a party to obtain any previously unavailable information or discover an error or omission with respect to an item subject to apportionment hereunder and to give notice thereof as provided above after the Closing Date shall be deemed a waiver of its right to cause a recomputation or a correction of an error or omission with respect to such item after the obligation of Closing Date.
3.7 Seller has informed Purchaser, subject and Purchaser confirms its understanding, that, pursuant to the provisions of the LeaseFourth Amendment to Lease dated as of September 30, 2004, by and among Seller, as landlord, and Novo Nordisk Pharmaceuticals, Inc., as tenant, Seller is obligated to:
(a) reimburse Novo Nordisk Pharmaceuticals, Inc., for all Property Taxes or a portion of the cost and expense of renovating the premises formerly occupied by D▇▇▇▇ ▇▇▇▇▇▇ LLP; and
(b) after the earlier day to occur of June 30, 2005 or the date upon which ZS Associates, Inc., shall vacate and surrender its premises in the 100 College Road Building:
(i) reimburse Novo Nordisk Pharmaceuticals, Inc., for all or a portion of the cost and expense of renovating the premises surrendered by ZS Associates, Inc.;
(ii) allow Novo Nordisk Pharmaceuticals, Inc., to use and occupy the premises surrendered by ZS Associates, Inc., for three months rent free; and
(iii) construct a doorway from the fitness facility located on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value floor of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as north wing of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and 1▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance the outside of the foregoing.Building and install a key card operated access control system on such door and on the existing door from the cafeteria facility to the outside of the Building. Purchaser hereby acknowledges that its assumption of the Leases at Closing will include, but not be limited to, the foregoing reimbursement, rent credit and construction obligations. In exchange therefor, Seller shall allow to Purchaser an apportionment credit at closing, pursuant to Section 3.1 above, in an amount (the “Net Tenant Incentive Reimbursement”) equal to the difference between:
(cx) Property Taxes for the fiscal year in One Million Ninety-Five Thousand Nine Hundred Twenty-Six ($1,095,926) Dollars, which the Closing occurs will reflect amounts payable for the Property as parties agree is a whole and not for each Unit. In light reasonable estimate of the foregoing, the amount aggregate cost and expense to be paid incurred by Purchaser as an apportionment hereunder shall be a percentage of in connection with such reimbursements, credit and construction work, without discount or interest factor; less
(y) if, between the Property Taxes accruing on date hereof and after the Closing Date, Seller shall reimburse Novo Nordisk Pharmaceuticals, Inc., in whole or in part, for a reimbursable cost or expense as described above in this Section 3.7, allow a rent credit so described to Novo Nordisk Pharmaceuticals, Inc. and/or construct such percentage to be doorway, the Percentage Interest attributable amount so reimbursed, credited and/or expended for such construction, as substantiated to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) reasonable satisfaction at or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and . The provisions of this Section 3.7 shall survive the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) 3.8 The provisions of this Article 11 3 (including, without limitation, the provision for one party to give notice to the other under Section 3.6 requesting any correction or recomputation of a closing apportionment) shall survive the Closing. ARTICLE 12Closing for a period of one year, except that the respective rights and obligations of the parties under Sections 3.4 and 3.5 shall survive the Closing for the period expiring one year after the respective items of rent and/or Additional Rent referred to therein shall become due and payable and, thereafter, during the pendency of any action brought by Seller during such period against the applicable Tenant.
Appears in 1 contract
Apportionments. (a) 3.1 The following shall be apportioned with respect to each Property between the Seller of such Property and Purchaser at the Closing as of 11:59 p.m. P.M. on the day immediately preceding the Closing Date (the “Apportionment Date”)December 31, provided 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 no payment shall be due in respect thereof on the Closing Date1995:
(ia) prepaid rents and Additional Rents (hereinafter defined) and other amounts payable by Tenants (hereinafter defined), if, as and when received and, in the case of the 700 ▇▇▇▇▇ ▇▇▇▇▇ Ground Lease, ground rent;
(b) real estate taxes, payments in lieu of personal property taxes, water charges, sewer rents and taxes, water rates and vault charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unitif any, on the basis of the respective applicable periods for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and the same have been assessed; 11
(c) value of Article 11 hereoffuel stored on the Properties, at Sellers' cost, including any taxes, on the basis of a statement from Sellers' supplier;
(iid) fuelcharges and payments under Contracts which are transferred to Purchaser or permitted renewals or replacements thereof;
(e) any prepaid items of operating expense relating to the Properties, including fees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees;
(f) utilities, including telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings;
(g) transferable deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Properties, if same are assigned to Purchaser at the Closing, which shall be credited in their entirety to Sellers;
(h) personal property taxes, if any, supplied to on the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days basis of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interestapplicable periods for which assessed;
(iiii) any amounts prepaid or payable under Sellers' share, if any, of all Contracts which have been entered into by Seller, revenues from the operation of the Properties other than rents and Additional Rents (including parking charges, and telephone booth and vending machine revenues), if, as and when received;
(j) permitted administrative charges, if any, on those Contracts which tenants' security deposits (if any) transferred by Sellers pursuant to Section 10.04 are to be terminated by Seller;11.1(f); and
(ivk) all other operating expenses with respect as to the Purchaser’s Unit;
(v) each Property, such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with between sellers and purchasers of real estate closings properties of commercial properties a type similar to the Properties and located in the State city and County in which state where the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against 3.2 If the Property Closing shall occur before a new real estate or personal property tax rate is fixed, the apportionment of taxes at the Closing shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the old tax rate for the period covered by the most current available tax bill preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall reprorate be promptly corrected and the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes proper party reimbursed.
3.3 If on the Property accruing before the Closing Date shall be any Tenant is in arrears in the obligation payment of Seller. All Property Taxes base rent or has not paid the base rent payable by it for the month in which the Closing occurs (whether or not it 12 is in arrears for such month on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of PurchaserDate), subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made any rents received by Purchaser or Sellers from such Tenant after the Closing shall first be applied first to all rent due and payable by such Tenant for the month in which the Closing occurs, then to the unreimbursed third-party costs incurred month prior to the month in which the Closing occurs, then to all rent due and payable by Seller such Tenant for the period from and after the month in which the Closing occurs, and then to the period prior to the month preceding the month in which the Closing occurs. If rents or any portion thereof received by Sellers or Purchaser after the Closing are due and payable to the other party by reason of this allocation, the appropriate sum, less a proportionate share of any reasonable attorneys' fees and costs and expenses expended in obtaining connection with the refund, and the balance, if anycollection thereof, shall be promptly paid to Seller the other party.
3.4 If any tenants are required to pay percentage rent, escalation charges for real estate taxes, parking charges, operating expenses and maintenance escalation rents or charges, cost-of-living increases or other charges of a similar nature ("Additional Rents") and any Additional Rents are collected by Purchaser from a tenant after the Closing Date, then (i) if and to the extent that the tenant has specified that any payment of such Additional Rents so collected is to be applied for the a particular item of Additional Rent with respect to a period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds payment shall be allocated applied as specified by the tenant and (ii) in all other cases, the Additional Rents or any other sums so collected shall be applied first to Seller), allocated to Purchaser pay all sums then due and Seller based on their Percentage Interests (payable by such tenant for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding subsequent to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees then Purchaser shall promptly pay to cooperate as reasonably requested the applicable Seller out of any remaining balance of such Additional Rents the amount of all Additional Rents which are due and payable by such tenant with Seller and respect to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which period prior to the Closing occurs will reflect amounts Date (whether or not such Additional Rents first became due and payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and or after the Closing Date), such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as less a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount proportionate share of any excess payments. In the event reasonable attorneys' fees and costs and expenses of any conflict between this provision 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 governcollection thereof.
(d) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.
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Apportionments. (a) The following Except as expressly set forth herein to the contrary in this Section 21, all items of income and expense at the Property shall be apportioned between Seller ▇▇▇▇▇ and Purchaser Fourmall on a per diem basis in the manner specified in clause (f) below. To the extent that all information, bills and invoices are not available at Closing to allow for the apportionment of any items of income and expense, ▇▇▇▇▇ and Fourmall agree to reconcile the apportionments within thirty (30) days after Closing and re-reconcile the apportionments within ninety (90) days after Closing (based upon preliminary financial information provided by ▇▇▇▇▇'▇ independent accountant) or such later time pursuant to clause (c) below.
(b) The following items shall be apportioned as of 11:59 p.m. on PM of the day immediately preceding the Closing Date (the “Apportionment Date”), provided 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 no payment shall be due in respect thereof on the Closing Date:
(i) real estate taxes1. Fixed rents, payments in lieu of taxesadditional rents, sewer percentage rents and taxesall other sums and credits due or payable under the Tenant Leases, water rates as and chargeswhen collected, vault charges and taxes, business improvement district subject to the provisions of clause (g) of this Section 21;
2. Real estate taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against on the Purchaser’s UnitPremises, on the basis of the respective periods fiscal year for which each is assessed the same are levied, imposed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereof;
(ii) fuel, if any, supplied to the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller;
(iv) all other operating expenses with respect to the Purchaser’s Unit;
(v) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaserassessed, subject to the provisions of clause (e) of this Section;
3. Charges for water, sewer rents, electricity, steam, gas and telephone at the LeasePremises, and all Property Taxes on which are not metered or otherwise charged directly to Tenants under the Verizon Units accruing on and after Tenant Leases; provided that if the Closing Date shall be the obligation consumption of Seller. Any refunds any of Property Taxes made after such utilities is measured by meters, ▇▇▇▇▇ Parties at the Closing shall first be applied to furnish a current reading of each meter; and further provided that if there is not a meter or if the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (current ▇▇▇▇ for the period any of such utilities has not been issued prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds charges therefor shall be allocated to Seller), allocated to Purchaser and Seller based adjusted at the Closing on their Percentage Interests (the basis of the charges for the prior period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement for which bills were issued and shall be continuing as of further adjusted when the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes bills for the fiscal year in which current period are issued;
4. Fuel at the Closing occurs will reflect amounts payable for the Property Premises, if any, at such Owner LLC's cost therefor (as a whole and not for each Unitdetermined by such Owner LLC's fuel supplier);
5. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount Amounts paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.transferable Operating Agreements;
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Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. on of the day immediately preceding the Closing Date (the “Apportionment "Adjustment Date”"):
(a) fixed or base rents ("Rents") which have been prepaid, security deposits referred to in Section 8(e), provided that Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable 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 no payment shall be due in respect thereof on periods which expire after the Closing Date:, which have been received by Seller;
(ib) real estate taxes, payments special assessments (but only any installment relating to the period in lieu of taxeswhich the Adjustment Date occurs), water charges, sewer rents and taxes, water rates charges and vault charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unitif any, on the basis of the respective periods fiscal years (or applicable billing period if other than a fiscal year), respectively, for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and same have been assessed;
(c) value of Article 11 hereofprepaid fuel belonging to the Seller stored on the Property, at the Seller's cost, including any taxes, on the basis of a statement from the Seller's suppliers;
(iid) fuelcharges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on Schedule 3 hereto or permitted renewals or replacements thereof;
(e) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(f) utilities, to the extent required by Section 3.4;
(g) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(h) personal property taxes, if any, supplied to on the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days basis of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interestfiscal year for which assessed;
(iiii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other revenues from the operation of the Property other than those Contracts which pursuant to Section 10.04 are to be terminated by SellerRents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(ivj) all other operating expenses with respect to the Purchaser’s UnitNew Lease Expenses as provided in Section 10.1.2;
(vk) all rent, charges, additional rent or expenses or other charges under the Ground Leases; and
(l) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with between sellers and purchasers of real estate closings properties of commercial properties in the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect a type similar to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Datelocated in Los Angeles County, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoingCalifornia.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision 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) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed annual base rent payable under the Lease (i) for the period from the Closing Date to the end of the month in which the Closing Date occurs, (ii) for the calendar month immediately succeeding the month in which the Closing Date occurs and (iii) for such other 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 prepayment.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Article 11 shall survive the Closing. ARTICLE 12.
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Sources: Purchase and Sale Agreement (Dean Witter Realty Yield Plus Ii Lp)