Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"): (i) Rentals, in accordance with Section 10.4(b) below. (ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon. (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading. (iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume. (v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months. (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty Corp)
Prorations. (a) Seller For purposes of determining the Purchase Price, personal property and Purchaser agree real property Taxes, fees with respect to adjustany Transferable Permits, as rents under any leases of 11:59 p.m. on real or personal property, or other similar expenses, that are not due or assessed until after the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, Effective Time but which are attributable in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and whole or in part to any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days period commencing prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Effective Time, and Purchaser any other amounts that by the terms of this Agreement are to be allocated between the Parties, will be charged and credited for all prorated as of the Proration Items relating Effective Time, with Seller liable to the extent such items relate to any period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figuresEffective Time, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation Buyer liable to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable extent such items relate to any period from and after the Proration Effective Time. After If the Closingactual amounts to be prorated are not known, Seller shall include an itemized estimate in the Closing Adjustment Statement based upon the most recent available rates, assessments, valuations, or other data, and the Parties shall adjust the amounts paid at Closing to reflect such prorations. Any prorations shall be made so as to avoid duplication of any amounts, and will cause be adjusted to properly take into account any amounts thereof used in determining the Purchase Price.
(b) The proration of all items under this Section 3.4 will be recalculated by Buyer within a reasonable period of time following the date upon which the actual amounts become available to Buyer. Buyer will notify Seller of such recalculated amounts, and will provide Seller with all documentation relating to such recalculations, including tax statements and other notices from third parties. The Parties will make such payments to each other as are necessary to reconcile any estimated amounts prorated as of the Effective Time with the final amounts to be paid or turned over prorated. Seller and Buyer agree to Purchaser furnish each other with such documents and other records as may be reasonably requested in order to confirm all Rental, if any, received by Seller after Closing and attributable proration calculations made pursuant to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertythis Section 3.4.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Algonquin Power & Utilities Corp.), Asset Purchase Agreement (Atmos Energy Corp)
Prorations. The following items shall be adjusted and apportioned between Sellers and Purchaser as follows:
(a) Seller All non-delinquent ad valorem real estate and personal property taxes, charges and assessments affecting the Properties shall be prorated on a per diem basis such that they are charged to Purchaser agree to adjust, as of 11:59 p.m. the Closing Date, disregarding any discount or penalty and on the day preceding basis of the fiscal year of the authority levying the same. If any of the same have not been finally assessed as of the Closing Date for the current fiscal year of the taxing authority, then the same shall be adjusted through the Closing Date based upon one hundred percent (100%) of the "PRORATION TIME"), most recently ascertainable taxes. There shall be a final reproration of the estimated real estate and personal property taxes promptly following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowissuance of final bills. Each party agrees to make such payments as shall be necessary to provide the appropriate credits resulting from such re-proration.
(iib) Cash Security Deposits All non-delinquent rent and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Sellerother income of the Properties, including, without limitation, electricityother periodic rentals, water additional rentals, escalation rentals, pass-throughs and other sums and charges and sewer chargespayable under the Leases (collectively, "Rents") collected as of the Closing Date shall be prorated on a per diem basis such that they are credited to Purchaser as of the Closing Date. If there are meters on Purchaser shall receive a credit for any Rents which have been prepaid as of the Real Property, Seller will cause readings of all said meters to be performed not more Closing Date. No later than five (5) days prior to the Closing Date, Sellers shall provide Purchaser with a statement of all delinquent Rents. Any Rents defined below, which are delinquent on the Closing Date and which are collected after the Closing (net of collection costs, if any) shall be applied as follows: (i) first to the month in which Closing occurred, (iii) second, to all periods after Closing until Rent due to Purchaser is paid current by the applicable Tenant, and (iii) third, to the receivables for the two calendar months immediately preceding the month of Closing. From and after the Closing Date Purchaser shall use commercially reasonable efforts to collect such Rent receivables in the ordinary course of business, but shall not be obligated to engage a collection agency, take legal action or to send any default notices. The obligation of Purchaser to remit delinquencies to Sellers in accordance with the terms of this Section 6(b) shall survive the Closing, delinquent Rents which are not collected by Purchaser on or before the date that is sixty (60) days after Closing shall be forfeited by Sellers and Sellers shall have no further right, title or interest in or to the same. To the extent any Seller receives any Rents after Closing, the same shall be held in trust for Purchaser and be applied in accordance with the terms of this Section 6(b).
(c) At Closing Purchaser shall receive a credit equal to the unapplied total of all security and other refundable tenant deposits then held by Sellers. One or more of the Sellers may participate in a program administered by Lease Term Insurance Group, LLC ("Lease Term Insurance") whereby tenants of a Property may pay a non-refundable fee in lieu of refundable security deposits. Such fees shall not be treated as security deposits and shall not be subject to proration, provided that, at Closing, Sellers shall credit the Purchase Price for an amount equal to the then balance of the Lease Term Insurance credit pool for each of the Properties.
(d) Charges of water, electricity, sewer rental, gas, telephone and all other utilities, and charges and income under all Assumed Contracts shall be prorated on a per diem adjustment shall be made for the days between the meter reading date and basis such that they are credited or charged to Purchaser, as applicable, as of the Closing Date based Date, disregarding any discount or penalty and on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate fiscal year or billing period of the authority, utility or other person levying or charging for the preceding year applied same and charged to the latest assessed valuation. If, subsequent Sellers for all periods prior to the Closing Date. If the consumption of any of the foregoing is measured by meters, real estate taxes then Sellers shall use commercially reasonable efforts to arrange to obtain a reading of each such meter prior to Closing and Sellers shall pay all charges thereunder through the date of any meter readings obtained prior to Closing. If actual amounts cannot be reasonably obtained as of the Closing, such charges and income under the Assumed Contracts shall be based on Sellers' and Purchaser's good faith estimates (based on past expenses) and shall be re-prorated when actual amounts can be ascertained but in any event no later than one hundred eighty (180) days after Closing. Payments in connection with the final adjustment shall be due within thirty (30) days of written notice
(e) Water or utility charges which are separately metered and billed to tenants at the Properties shall be reasonably estimated as of the Closing Date by reason of change in either assessment or rate or Sellers based on the average consumption for any other reason) such tenants for the Real Property two (2) previous monthly bills and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume Sellers shall be entitled to a credit equal to such estimate. Such estimate shall be subject to re-proration under subsection (d) above.
(f) At Closing, Purchaser shall receive a credit for any Vacant Units (as defined below) that are not in Rent Ready Condition (as defined below) as of the date that is three (3) Business Days prior to the Closing Date in an amount equal to Seven Hundred Fifty Dollars ($750) for each such unit. "Rent Ready Condition" shall mean a Vacant Unit that has been thoroughly cleaned and repainted since being vacated and contains the following: (1) a refrigerator-freezer unit in good condition and working order; (2) a dishwasher, garbage disposal, stove, oven, and microwave in good condition and working order; (3) plumbing, heating, air conditioning, and electrical systems in good condition and working order; (4) floors fully covered with a combination of tile, linoleum or carpet, and that since the unit was vacated (a) all expenses incurred or tile and linoleum has been replaced and/or thoroughly cleaned consistent with Seller's prior practices for vacant units to be incurred re-leased and (b) all carpeting has been replaced or steam cleaned by a professional third party vendor; and (5) blinds and/or drapes on all windows in connection with good condition and working order. "Vacant Unit" shall mean any real estate tax appeals that are pending residential apartment unit at the time of Closing. Seller will be charged and credited for the amounts of all Properties that is unoccupied as of the Proration Items relating to Closing Date and that was vacated by the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser tenant most recently occupying such unit at least three (3) Business Days prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statementi.e., once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser if a unit becomes vacant less than three (3) Business Days prior to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, it is not a "Vacant Unit" as to which Purchaser might be eligible to receive a credit). If requested by Purchaser, representatives of Sellers and Purchaser shall conduct a walk-through (the prorations will be made at Closing on the basis "Walk-Through") of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made Properties on or around the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation third (3rd) Business Day prior to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, Date in which event no proration will be made at order to determine the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions amount of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentalsuch credit, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, be given to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyPurchaser.
Appears in 2 contracts
Sources: Real Estate Purchase and Sale Agreement (Ares Real Estate Income Trust Inc.), Real Estate Purchase and Sale Agreement (Ares Real Estate Income Trust Inc.)
Prorations. 13.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be made for the days between the meter reading date and the prorated at Closing Date based on the most recent meter reading.
(iv) Amounts payable under ascertainable data. Seller shall pay at Closing the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable bills therefor for the calendar yearperiod to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax rate for the preceding year applied consulting agreements with respect to the latest assessed valuationProperties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. If, subsequent The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date, real estate taxes (by reason . All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of change in either assessment or rate or the Closing Date so that Seller shall be responsible for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser costs associated therewith prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, and Purchaser shall be signed by Purchaser responsible for any costs associated therewith arising from and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of after the Closing Date, the . All prorations will described in this Agreement (except prorations for real and personal property taxes which shall be made at Closing deemed final as prorated on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will ) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to utility bills. Seller will such prorations; provided, however, that such prorations shall be entitled deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all deposits presently in effect with the utility providers, prorations shall be deemed final and Purchaser will be obligated not subject to make its own arrangements for any deposits with the utility providersfurther post-closing adjustment. The provisions of this Section 10.4(a) will the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for twelve any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (12by legal action or otherwise) monthsthe collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser will receive shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the Closing Statement date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the prorated amount owner of said rights a license fee equal to One Hundred Dollars (as $100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the Proration Time) of all Rental previously paid state where such Property is located to prevent such unauthorized use or collected to recover any damages authorized by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertylaws.
Appears in 2 contracts
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 86), Sale Agreement (Balcor Colonial Storage Income Fund 86)
Prorations. Notwithstanding anything to the contrary in any CAPCO Agreement:
(a) Seller The Parties agree that all of the items normally prorated, including those listed below (but not including Income Taxes), relating to the business and Purchaser agree to adjust, operation of the DLC Nuclear Assets shall be prorated as of 11:59 p.m. on the day preceding DLC Nuclear Closing Date, with DLC liable to the extent such items relate to any time period prior to the DLC Nuclear Closing Date, and the applicable Specified FE Subsidiary liable to the extent such items relate to periods commencing with the DLC Nuclear Closing Date (measured in the "PRORATION TIME")same units used to compute the item in question, the following (collectively, the "PRORATION ITEMS"otherwise measured by calendar days):
(i) RentalsPersonal property, in accordance real estate and occupancy Taxes, assessments and other charges, if any, on or with Section 10.4(b) below.respect to the business and operation of the DLC Nuclear Assets;
(ii) Cash Security Deposits Rent, Taxes and all other items (including prepaid services or goods not included in Inventory) payable by or to a DLC under any prepaid rents, together with interest required to be paid thereon.of the DLC Nuclear Agreements;
(iii) Utility charges payable by SellerAny permit, includinglicense, without limitationregistration, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters compliance assurance fees or other fees with respect to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.any Transferable Permit;
(iv) Amounts payable under Sewer rents and charges for water, telephone, electricity and other utilities with respect to the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.DLC Nuclear Assets;
(v) Real estate taxes due Rent and Taxes payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for DLC under the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating Leases assigned to the period up to the Proration Time, applicable Specified FE Subsidiary; and
(vi) ANI and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ insurance premiums for utilities will be made if possible as the current year or other applicable policy period;
(vii) Impositions and fees payable to the Department of Energy and the NRC; and
(viii) Membership fees in respect of the Closing DateInstitute for Nuclear Power Operator, the Nuclear Energy Institute and similar organizations involved solely in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsnuclear matters.
(b) Purchaser will receive a credit In connection with the prorations referred to in Section 3.4 (a) above, in the event that actual figures are not available at the DLC Nuclear Closing Date, the proration shall be based upon the actual Taxes or other amounts accrued through the DLC Nuclear Closing Date or paid for the most recent year (or other appropriate period) for which actual Taxes or other amounts paid are available. Such prorated Taxes or other amounts shall be re-prorated and paid to the appropriate Party within sixty (60) days of the date that the previously unavailable actual figures become available. The prorations shall be based on the number of days in a year or other appropriate period (i) before the DLC Nuclear Closing Statement for the prorated amount Date and (as of the Proration Timeii) of all Rental previously paid to or collected by Seller and attributable to any period from including and after the Proration TimeDLC Nuclear Closing Date. After the Closing, Seller will cause The Parties agree to furnish each other with such documents and other records as may be paid or turned over reasonably requested in order to Purchaser confirm all Rental, if any, received by Seller after Closing adjustment and attributable proration calculations made pursuant to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertythis Section 3.4.
Appears in 2 contracts
Sources: Nuclear Generation Conveyance Agreement (Duquesne Light Co), Nuclear Generation Conveyance Agreement (Dqe Inc)
Prorations. (a) Seller All items of revenue and Purchaser agree expenses with respect to adjustthe Venture, the Facility Owners, the Operating Tenant, the Operating Subtenants and the Facilities shall be prorated as of 11:59 p.m. pm on the day preceding the Closing Date (the "PRORATION TIME"), “Apportionment Time”) to allocate between (x) the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser Joint Venture as it was constituted immediately prior to the Closing Date (collectively, the "CLOSING STATEMENT"“Original Company”) and (y) Purchaser (as 100% owner of the Joint Venture immediately following the Closing Date). The Original Company shall be entitled to all revenue and shall be responsible for all expenses for the period of time up to the Apportionment Time, and Purchaser shall be entitled to all revenue and shall be responsible for all expenses for the period of time after the Apportionment Time. Such adjustments shall be reflected on the Closing Statement (with such supporting documentation as the parties hereto may reasonably require being attached as exhibits to the Closing Statement, once agreed upon, ) and shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller increase or decrease (if as the prorations result in a net credit to Sellercase may be) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at taking into account the Closingparties respective interests in the Original Company. If the actual amounts of the Proration Items are not known as of the Closing Date, the All prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will shall be made on the basis of the actual figures, number of days in the year and a final cash settlement will be made between Seller and Purchasermonth in which the Closing occurs or in the period of computation. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will Any item which cannot be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as finally prorated on the Closing Date because of the Closing Date, unavailability of information shall be tentatively prorated on the basis of the best data then available and reprorated when the information is available but in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect each case with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this time frames set forth in Section 10.4(a8.04(b) will survive the Closing for twelve (12) monthsbelow.
(b) As soon as reasonably practicable after Closing, and in no event later than the six (6) month anniversary of Closing, Seller and Purchaser will receive a credit shall agree on the final determination of all prorations included on the Closing Statement for (the prorated amount (as “Proration True-Up Statement”), provided that with respect to property tax prorations, Seller and Purchaser shall agree on the final determination of all such prorations within sixty days after Purchaser’s receipt of the Proration Time) final tax bills for all relevant periods with respect to all of all Rental previously paid to the Facilities. The net amount due Original Company or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all RentalPurchaser, if any, received by Seller after reason of such adjustments to the Closing and attributable to any period from and after Statement as shown on the Proration Time. "RENTAL" as used herein includes fixed monthly rentalsTrue-Up Statement, additional rentals, percentage rentals, escalation rentals shall be paid in cash by the party obligated therefore within ten (which include each Tenant's proration share 10) days following the date of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyProration True-Up Statement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Sunrise Senior Living Inc), Purchase and Sale Agreement (Sunrise Senior Living Inc)
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) Seller cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and Purchaser agree to adjust, as of 11:59 p.m. assessment prorations shall be based on the day preceding the Closing Date (the "PRORATION TIME")latest available tax ▇▇▇▇. If after Close of Escrow either party receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, the following recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (510) days prior to the Closing Date, delinquency date shown on such tax ▇▇▇▇ Buyer and a per diem adjustment Seller shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied deliver to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason taxing authority their respective shares of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible , prorated as of the Closing Date, in which event no proration will Close of Escrow. All prorations shall be made at the Closing based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to utility bills. Seller will the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be entitled to all deposits presently in effect with the utility providerspaid by Seller, and Purchaser will be obligated to make its own arrangements Seller shall indemnify and hold Buyer harmless for any deposits with lease commission claims brought against the utility providersReal Property arising therefrom. The provisions All leasing commissions and tenant improvement costs for new Leases executed after the date of this Section 10.4(a) will survive Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as primary term of the Proration Time) of new Lease subject, in all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Leaseevents, to the extent prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the same exceeds any expense stop specified in such Leaseterms of this Agreement specifically become the obligation of Buyer), retroactive rentalsbrought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, all administrative chargesclaims, utility chargesdemands, tenant suits and judgments, of any kind or real propertynature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (G Reit Inc), Purchase and Sale Agreement (G Reit Inc)
Prorations. (a) Seller and Purchaser agree to adjust, 12.1. The following items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and credited against the balance of the cash due at Closing: i) rents (exclusive of delinquent rents, but including prepaid rents); ii) refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); iii) water and other utility charges; iv) fuels; v) prepaid operating expenses; vi) real and personal property taxes and assessments ("Taxes") prorated on a per diem adjustment "net" basis based on 105% of the most recent actual tax bills. The amount of the proration shall be made for calculated by (1) determining the days between net amount (the meter reading date "Net Amount") of (x) the amount of all Taxes accrued but not yet due and payable as of the Closing Date (based on the most recent meter reading.
actual bills), minus (ivy) Amounts the aggregate amount payable under by tenants of the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable Property for their respective shares of Taxes for the calendar yeartime period covered by the proration; (2) multiplying the Net Amount by 105%. If In addition, Seller shall give Purchaser a credit for the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis aggregate amount actually paid or deposited by tenants of the tax rate Property, as of the Closing, for their respective shares of Taxes for the preceding year applied to time period covered by the latest assessed valuation. If, subsequent to proration; vii) operating expenses which are reimbursable by the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) tenants for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (less any amount previously paid by the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, Tenants shall be signed by Purchaser credited to Seller; and Sellerviii) other similar items. The proration Assessments payable in installments which are due subsequent to the Closing Date shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on the basis final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All monies received after Closing by Purchaser from any tenant of the actual figuresProperty who is indebted under a lease for rent for any period prior to and including the Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of such monies to current rent and other charges shall be deemed a "Post-Closing Receipt" but only to the extent such pre-closing indebtedness has not been paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall set forth both current and a final cash settlement will be made between Seller and Purchaserdelinquent rent amounts on tenant bills in an effort to collect all amounts owing from tenants, including those which, upon collection, would constitute Post-Closing Receipts hereunder. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 2 contracts
Sources: Agreement of Sale (Balcor Pension Investors Vi), Agreement of Sale (Balcor Pension Investors Vi)
Prorations. The following items relating to the Assets and the ownership and operation of the Generating Assets will be allocated pro rata per diem for the tax year that includes the date of Closing, with Seller liable for such items to the extent they are allocable to the period prior to the date of the Closing and Purchaser liable for such items to the extent they are allocable to periods beginning with and subsequent to the Closing:
(a) Seller and Purchaser agree Property Taxes on or with respect to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowAssets.
(iib) Cash Security Deposits and any prepaid Rents, additional rents, together Taxes, to the extent normally adjusted in connection with interest required to be paid thereonsimilar transactions, and other items payable by Seller under the Real Property Leases and the Business Contracts.
(iiic) Utility The amount of rents, Taxes and charges payable by Sellerfor sewer, includingwater, without limitationtelephone, electricity, water charges electricity and sewer charges. If there are meters on other utilities relating to the Real PropertyProperty and the real property subject to the Real Property Leases.
(d) All other items (excluding other Taxes) normally adjusted in connection with similar transactions. Except as otherwise agreed by the parties, Seller will cause readings the net amount of all said meters to such prorations will be performed not more than five settled and paid as of date of the Closing. At least ninety (590) days prior to date of the Closing, Seller will provide Purchaser with a reasonably detailed schedule showing a calculation of the estimated prorations as if the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based were occurring on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearsuch date. If the Closing Date shall occur before the tax a real estate Tax rate is fixed, the apportionment of real estate taxes Taxes shall be based upon the basis of the tax Tax rate for the preceding year applied to the latest assessed valuationvaluation and such Taxes shall be reprorated upon the request of Seller, on the one hand, or Purchaser, on the other hand, made within sixty (60) days after the date that the actual amounts become available. If, subsequent Seller and Purchaser agree to furnish each other with such documents and other records as may be reasonably requested in order to confirm all adjustment and proration calculations made pursuant to this Section 1.06. To the extent required by any approval of the transfer of the FERC project licenses related to the Closing DateHydro Units, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by all annual charges accrued under such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known licenses as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Asset Purchase Agreement (Pp&l Inc), Asset Purchase Agreement (Pp&l Resources Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding On the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits all obligations and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items liabilities listed below relating to the period up to the Proration Time, and Purchaser Business and/or Assets will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known prorated as of the Closing Date, with Seller liable to Purchaser therefor to the extent such items relate to any time period up to and including the day prior to the Closing Date and Purchaser liable to Seller therefor to the extent such items relate to any time period commencing on or after the Closing Date: personal property, real estate, occupancy and water taxes, if any, on or with respect to the Business and/or Assets; rents, taxes and similar items payable by Seller under any Assigned Contract; the amount of any license or registration fees paid to a Governmental Authority with respect to any Permits which are being assigned or transferred hereunder; the amount of sewer rents and charges for water, telephone, electricity and other utilities and fuel; and any other items which are normally prorated in connection with similar transactions. Seller agrees to furnish Purchaser with such documents and other records as Purchaser reasonably requests in order for Purchaser to calculate all adjustments and prorations will pursuant to this Section 1.5. The amount of such prorations owed by Purchaser or Seller pursuant to this Section 1.5 shall be made at paid to Purchaser by Seller or to Seller by Purchaser, as the case may be, on the Closing Date and shall be treated as an adjustment to the Purchase Price paid by Purchaser to Seller on the Closing Date. If current payments with respect to items to be prorated pursuant to this Section 1.5 are not ascertainable on the Closing Date, such payments shall be prorated on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇most recently ascertainable ▇▇▇▇ for utilities will therefor and shall be reprorated between Seller and Purchaser within 30 days after the Closing Date and a cash settlement shall be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthspromptly thereafter on an item by item basis.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Asset Purchase Agreement (Chart House Enterprises Inc), Asset Purchase Agreement (Landrys Restaurants Inc)
Prorations. 3.2.1. The following shall be apportioned with respect to the Property as of the end of the Transition Period (as defined in Section 6.1.1), as if Purchaser were vested with title to the Property as of the end of the Transition Period.
(a) Seller and Purchaser agree to adjustrents, if any, as of 11:59 p.m. on the day preceding the Closing Date and when collected (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, term “rents” as used in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of this Agreement includes all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes payments due and payable for by Tenants under the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate Leases);
(b) taxes (by reason of change in either assessment or rate or including personal property taxes on the Personal Property) and assessments levied against the Property;
(c) payments under the Contracts;
(d) gas, electricity and other utility charges for any other reason) for the Real Property and Improvements should be determined which Seller is liable, if any, such charges to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made apportioned at Closing on the basis of the best evidence then availablemost recent meter reading occurring prior to Closing; thereafterand
(e) any other accrued or prepaid operating expenses for the Property and, when actual figures are receivedto the extent customarily prorated between a purchaser and a seller in the Commonwealth of Massachusetts, re-prorations will be made any other items pertaining to the Property.
3.2.2. Notwithstanding anything contained in the foregoing provisions:
(a) At Closing, Seller shall deliver to Purchaser any security deposits and prepaid rents (for periods on or after the basis end of the actual figures, Transition Period) under the Leases or credit to the account of Purchaser the unapplied amount of such security deposits and a final cash settlement will prepaid rents. All prepaid rents covering the period of time commencing on or after the end of the Transition Period shall be made between delivered by Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Purchaser on the Closing Date, or Purchaser may elect to receive a credit against the Purchase Price in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions amount of this Section 10.4(a) will survive the Closing for twelve (12) monthssuch prepaid rents.
(b) Purchaser will receive a credit on Any taxes paid at or prior to Closing shall be prorated based upon the Closing Statement amounts actually paid. If taxes and assessments for the prorated amount (as of the Proration Time) of all Rental previously current year have not been paid to or collected by Seller and attributable to any period from and after the Proration Time. After the before Closing, Seller will cause shall be charged at Closing an amount equal to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing that portion of such taxes and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (assessments which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, relates to the extent period before the same exceeds any expense stop specified in end of the Transition Period and Purchaser shall pay the taxes and assessments prior to their becoming delinquent. Any such Lease)apportionment made with respect to a tax year for which the tax rate or assessed valuation, retroactive rentalsor both, all administrative chargeshave not yet been fixed shall be based upon the most recent ascertainable, utility charges, tenant or real propertyand shall be re-prorated post-Closing once final taxes and assessments for such period have been determined.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Global Partners Lp)
Prorations. 12.1. Rents (aexclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); prepaid or accrued (as the case may be) Seller interest on the Existing Bond and Purchaser agree to adjustMortgage Documents, water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 5%; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment credited against the balance of the cash due at Closing. To the extent any escrows or bond repayment deposits established in connection with the Bonds or Existing Bond and Mortgage Documents are not refunded to Seller at Closing, the proceeds in said escrows shall be made for the days between the meter reading date assigned to Purchaser and the Closing Date based on amounts thereof shall be a credit to Seller at the most recent meter reading.
(iv) Amounts Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation Purchaser shall pay such Post-Closing Receipt to insurance premiumsSeller, and Seller's insurance policies will Purchaser shall use reasonable efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder, but shall not be assigned liable to PurchaserSeller for its failure to collect same. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in which event no proration will be made accordance with the terms hereof. Seller retains the right to conduct an audit, at the expense of Seller at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing with respect Receipts reconciliation statement and upon the verification of additional funds owing to utility bills. Seller, Purchaser shall pay to Seller will be entitled to all deposits presently in effect with the utility providerssaid additional Post-Closing Receipts, and in the event Seller's audit discovers additional Post-Closing Receipts greater than $5,000.00, Purchaser will be obligated to make its own arrangements for any deposits with shall pay the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 2 contracts
Sources: Agreement of Sale (Balcor Realty Investors 85 Series I), Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. The following adjustments to the Purchase Price shall be made between Seller and Purchaser:
(a) Seller and Purchaser agree to adjustThe following items, as applicable, shall be prorated between Purchaser and Seller on a per diem basis as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):Date:
(i) Rentalsall nondelinquent real estate taxes, installments of general and special assessments, homeowner's association dues, if any, and fire protection service charges, if any, due and payable in accordance with Section 10.4(b) below.the calendar year in which Closing occurs, based upon the most recent information available to Seller. If Closing shall occur before the tax rate or assessment for the current year is fixed, the initial proration of such taxes or assessments shall be based upon the latest available information. Thereafter, when the actual tax rate for such current year becomes known, Seller and Purchaser shall, outside of escrow and after Closing, re-prorate any such taxes or assessments to the extent that the actual rate thereof was different than the rate used for prorations made at Closing and shall pay, one to the other, any adjustment due as a result of such re-proration;
(ii) Cash Security Deposits current rents for the month in which the Closing occurs as actually paid, advance rentals, nonrefundable deposits and any prepaid rentsother charges, together with interest required to be paid thereon.if any, payable by Tenants under the Leases; and
(iii) Utility all charges payable by for fuel, water, sewer, electricity and other utility services furnished to the Property which are not metered to Tenants. Seller, includingto the extent the same is obtainable, without limitation, electricity, water charges and sewer chargesshall furnish meter readings for such utilities through the close of business on the day prior to the Closing. If there any such meter readings are meters on the Real Propertynot so obtainable, then Seller will cause shall provide meter readings as of all said meters to be performed a date not more than five thirty (530) days prior to the Closing Date, and a per diem adjustment the proration of utility charges shall initially be based upon such prior reading. Upon the taking of actual meter readings first after Closing, such proration shall be made for readjusted outside of escrow after Closing and Seller or Purchaser, as the days between case may be, shall promptly pay to the meter reading date and other the Closing Date based on the most recent meter readingamount determined to be so due upon such readjustment.
(ivb) Amounts payable under the Spectrasite Agreements All other items of accrued or prepaid income and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes expense shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known prorated as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereaftermost recent ascertainable amounts of or other reliable information for each item of income and expense. Seller and Purchaser shall duly cooperate with each other and the Title Company in making prorations, when actual figures are receivedadjustments and credits pursuant to this Section 10 and shall, re-prorations will be made on as requested by the basis Title Company, furnish to the Title Company such information as is in the possession of or obtainable by them to assist in making such prorations, adjustments or credits. In the event, for any reason beyond the reasonable control of the actual figuresparties hereto, information necessary to calculate any proration, adjustment or credit for any item required to be prorated, adjusted or credited under this Section 10 is not available prior to Closing, then such items shall be prorated, adjusted or credited outside of escrow after Closing as soon as such information is available, and a final cash settlement will be made between Seller and PurchaserPurchaser shall duly cooperate with each other in regard thereto and shall pay, one to the other, any amounts which may be owing as a result of any such subsequent proration, adjustment or credit. No In the event, at any time within six (6) months after Closing, errors shall be discovered in any prorations, adjustments or credits made pursuant to this Section 10, Seller and Purchaser shall correct such errors and shall pay, one to the other, any sums owning as a result of such correction.
(c) For purposes of all prorations will provided for in this Agreement, Seller shall be made in relation responsible for all days up to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, and Purchaser shall be responsible for all days including and after the Closing Date. Except as otherwise expressly provided in which event this Agreement, all prorations shall be final.
(d) Security deposits, including cleaning and pet deposits, and prepaid rent and any interest thereon, in the amounts set forth in the Leases (or if not set forth therein, as set forth on the Rent Roll) shall be credited to Purchaser at Closing.
(e) If on the Closing Date any Tenant is delinquent in the payment of rent, including any additional rent billed but unpaid at the time of Closing, the delinquent rent attributable to the period prior to the Closing shall remain the property of Seller and be paid to Seller if, as and when collected by Purchaser out of the funds received by Purchaser from such Tenant, and no proration will of such delinquent rent shall be made at Closing. For a period of one hundred eighty (180) days after Closing, Purchaser shall use reasonable efforts to attempt to collect and shall remit to Seller any such delinquent rents owing to Seller; provided, however, that (i) Purchaser shall be required only to periodically send bills to the Closing with respect Tenant(s) owing such delinquent rent and shall not be required to utility bills. Seller will be entitled to all deposits presently commence any litigation or undertake any other collection efforts in effect with regard thereto; and (ii) in the utility providers, and event Purchaser will be obligated to make its own arrangements collects rent from a person who owes rent for any deposits with period of time after Closing and for a period of time prior to Closing, all amounts collected from such person shall be applied first to the utility providers. The provisions amount of this Section 10.4(a) will survive rents owing by such person for the period of time after Closing for twelve (12) monthsand retained by Purchaser and only the excess, if any, shall be remitted to Seller.
(bf) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After Contemporaneously with the Closing, Seller will cause to be paid or turned over shall deliver to Purchaser at the offices of Seller's property manager all Rentaloriginals (including computer discs and tapes) of books and records of accounts, contracts, leases, leasing correspondence, receipts for deposits, bills and other papers that pertain to the Property, together with all advertising materials, booklets, keys and other items, if any, received used in the Property's operation, provided that Seller, at Seller's cost, may retain a copy of the foregoing items for tax reporting purposes. After the Closing and solely for the purposes of Section 10, Seller, upon at least five (5) days' prior written request to Purchaser, shall have the right to inspect the books and records for the Property located at the office of Purchaser and/or Purchaser's property manager to verify that Purchaser is remitting to Seller the proper amounts according to this Agreement and for any other purpose related to Seller's prior ownership of the Property.
(g) The cost of any tenant improvements paid or incurred by Seller after Closing for Leases approved by Purchaser and attributable to any period from and executed after the Proration Timedate of this Agreement shall be paid in full by Seller at or before Closing. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation Seller shall supply to Purchaser and maintenance costs Title Company paid invoices and expenses as provided final lien waivers for under the Lease, all such tenant improvement work to the extent performed on or prior to the same exceeds Closing Date. Any provision of this Agreement to the contrary notwithstanding, after the Effective Date, Seller shall not undertake any expense stop specified in tenant improvement work on any Unit without the prior written consent of Purchaser, such Lease)consent not to be unreasonably withheld, retroactive rentals, all administrative charges, utility charges, tenant conditioned or real propertydelayed.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Development Partners), Purchase and Sale Agreement (Development Partners Ii)
Prorations. Escrow Holder will prorate between the parties, in Cash, to the Close of Escrow, an amount calculated by multiplying the Total Sales Percentage by each of the following: (a) 2012 state, County, city and special district (if any) real property taxes, special taxes and assessments for the Project based on the latest information available to Escrow Holder (i.e., $4,205,805 real property taxes for the 2012 tax year calculated using the total assessed value provided in the 2012 First Pass Assessment (i.e., $25,953,750) and the effective tax rate for 2011), (b) rental payments, other revenues and expenses and (c) any other items Seller and Purchaser agree Buyer mutually instruct Escrow Holder to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prorate prior to the Closing Date, Close of Escrow. All rental payments and other tenant charges and additional rents received by Buyer from a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If tenant after the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied first to collection costs and then to the latest assessed valuationmost recently accrued obligation of such tenant. IfAfter application as set forth above, subsequent Buyer shall remit to Seller on the Final Adjustment Date (as defined below) that portion of rentals and other tenant charges and additional rents received after the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined Date attributable to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser periods prior to the Closing Date (month of Closing, and if attributable to the "CLOSING STATEMENT"). The Closing Statementmonth of Closing, once agreed uponSeller’s share thereof in accordance with the proration set forth above; provided, however, that any rent received from the United States of America, the Department of Homeland Security and Department of Justice, and Internal Revenue Service Department of Treasury, Bureau of Alcohol, Tobacco and Firearms shall be signed by Purchaser and Sellerdeemed to be payment for the prior month’s outstanding rent due. The proration In the event any prorations made under this Agreement shall prove to be incorrect for any reason, then any party shall be paid at Closing by Purchaser entitled to Seller (if an adjustment to correct the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to same. Any item which cannot be delivered by Purchaser in payment finally prorated because of the Purchase Price at the Closing. If the actual amounts unavailability of the Proration Items are not known as of the Closing Date, the prorations will information shall be made at Closing tentatively prorated on the basis of the best evidence data then available; thereafter, when actual figures are received, available and re-prorations will prorated when the information is available. If any items to be adjusted are not determinable at Closing (including, but not limited to, items set forth in this Article 5), the adjustment shall be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation subsequent to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing within thirty (30) days following the final determination of 2012 taxes and assessments for the Project (the “Final Adjustment Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers”). The provisions of this Section 10.4(a) will Article 5 and the obligations of Sellers and Buyer hereunder shall survive the Closing for twelve (12) monthsand shall not be deemed merged into any instrument delivered at Closing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Purchase Agreement (G REIT Liquidating Trust), Purchase Agreement (NNN 2002 Value Fund LLC)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits Non-delinquent real property taxes and any prepaid rentscurrent installments on any improvement assessment liens, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges ▇▇▇▇▇-▇▇▇▇ bond payments and sewer charges. If there are meters on similar assessments affecting the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to Property and any personal property taxes affecting the Closing Date, and a per diem adjustment Personal Property shall be made for the days between the meter reading date and the Closing Date prorated based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements available tax bills using a 30-day month and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar a 360-day year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of Any increase in real estate property taxes shall be upon the basis and assessments arising out of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason sale of change in either assessment or rate or for any other reason) for the Real Property to Buyer (or its assignee), or a sale or change in ownership after the sale to Buyer, and Improvements should be determined any supplemental real property taxes and assessments arising out of any construction pertaining to be higher or lower than those that are apportioned, a new computation the Real Property completed following the Close of Escrow shall be madepaid by Buyer when assessed, and Buyer shall indemnify Seller from and against all such taxes. Any supplemental real property taxes or private assessments arising out of any occurrence before the Close of Escrow shall be paid by Seller when assessed to the extent such taxes or assessments are attributable to any period before the Close of Escrow, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period shall indemnify Buyer from and after the Proration Timeagainst all such taxes and assessments. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of parties’ indemnification obligations under this Section 10.4(a) will shall survive the Closing for twelve (12) monthsClose of Escrow.
(b) Purchaser will receive a credit Non-delinquent rentals and other charges payable by tenants shall be prorated based on the Closing Statement for the prorated amount updated Rent Roll delivered pursuant to Section 5(c)(v). Rentals are delinquent when payment thereof is more than thirty (30) days past due as of the Proration TimeClose of Escrow. In addition, rentals from a tenant less than thirty (30) days past due will be considered delinquent if that tenant also has at least one month of all Rental previously rental more than thirty days past due (e.g. if a tenant has not paid its monthly rental for January of a year, and assuming a date after February 1 for the Close of Escrow, due to or the January delinquency the rental for the month of February also will be considered delinquent even though it is less than thirty ((30) days past due). Escrow Holder shall credit the amount of security deposits held by Seller as shown on the Rent Roll against the Purchase Price payable by Buyer. Rentals collected by Seller not shown on the updated Rent Roll and attributable delinquent rentals collected by Buyer as hereafter provided shall be prorated by the parties outside of escrow as of the Closing Date and paid to any period the entitled party as soon as practical from and after the Proration Timetime to time as collected. After the ClosingClose of Escrow Buyer shall use its commercially reasonable efforts to collect any delinquent rentals, but Buyer shall not be required to file suit or evict a tenant. If, after making diligent efforts to collect delinquent rentals from any tenant or tenants, or ninety (90) days after the Close of Escrow, whichever first occurs, Buyer elects not to file a legal action against such tenant or tenants, Buyer shall notify Seller, and Seller will cause may file a legal action or actions against such tenant or tenants for the delinquent rentals owing to Seller except that Seller shall not pursue an eviction remedy. Delinquent rentals collected by Buyer, net of the reasonable costs of collection (including attorney’s fees), shall be paid or turned over to Purchaser all Rentalapplied first against rent accruing for the month in which the Closing occurs, then against any other amounts owing Buyer, then against other amounts most overdue. Percentage rent, if applicable and if any, received for the rental period including Closing shall be prorated upon receipt, based upon the tenant’s sales for the portion of the lease year allocable to Seller’s and Buyer’s respective ownership of the Property.
(c) No later than two (2) business days before the Close of Escrow, the parties will prorate outside of escrow on an accrual basis all known deposits and operating expenses concerning the Property, refundable deposits held by Seller after any governmental agency or utility that will be assigned to Buyer at the Close of Escrow. If any of the foregoing cannot be apportioned at the Closing Date because of the unavailability of the amounts which are to be apportioned, such items shall be apportioned and attributable paid to any period from and the entitled party as soon as practicable after the Proration TimeClosing Date, but in no event later than ninety (90) days after the Closing Date. "RENTAL" as used herein includes fixed monthly rentalsSewer, additional rentalsgas, percentage rentalselectric, escalation rentals (which include each Tenant's proration share of building operation telephone and maintenance costs and expenses as provided for under the Leaseother utility charges, to the extent not reimbursed or paid directly by tenants, shall not be prorated but shall be paid by Seller to the same exceeds any expense stop specified utility company.
(d) Buyer and Seller shall take all steps necessary to effectuate the transfer of all utilities presently in such Lease)Seller’s name into Buyer’s name as of the Close of Escrow. Where necessary, retroactive rentals, all administrative charges, Buyer will post deposits with the utility charges, tenant or real propertycompanies.
(e) All prorations and adjustments shall be made as of 12:00 midnight on the day immediately preceding the Closing Date.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Prorations. 15.1 Rent, additional rent, water and other utility charges; fuels; operating expenses; real and personal property taxes (a) Seller adjusted for all tenants' liabilities, if any, for such items); and Purchaser agree to adjust, all other items of expense and income shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (the "PRORATION TIMEProration Date"). Seller shall be entitled to a credit for all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the following (collectivelyrespective utilities involved. Assessments, the "PRORATION ITEMS"):
(i) Rentalsexcluding regular ad valorem real estate taxes, payable in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there installments which are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days due prior to the Closing Date, and a per diem adjustment Date shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts paid by Seller. Assessments, excluding regular ad valorem real estate taxes, payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the most recent ascertainable data. If any ongoing real estate tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to contest has not been finalized as of the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) Purchaser and Seller agree that the tax bill existing prior to the conte▇▇ ▇hall be the most recent data for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be madetax year being contested, and Seller (i) Purchaser agrees to pay Purchaser any increase shown by re-prorate such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or amount as it relates to be incurred in connection with any the real estate tax appeals that are pending at proration for the time current tax year to the extent such tax contest is successful. All other prorations will be adjusted finally pursuant to Paragraph 15.4 below. Purchaser shall be credited with and Seller shall be charged with an amount equal to the sum of Closing(i) all Tenant security deposits and interest thereon required under the Leases, and (ii) the amount of any other credits due to Tenants as of the Closing Date in accordance with the terms of the Leases, including prepaid rent. Seller will shall be entitled to retain all Tenant security deposits, interest thereon, or other such credits due Tenants for which Purchaser receives credit and Seller is charged pursuant to this Paragraph. At the Closing, Seller shall give Purchaser credit for an amount, determined on an accrual basis, equal to the abatement of rent for any period on and credited for after the amounts Closing Date to which Tenants are entitled under Leases in effect on the Closing Date. Subject to the other terms of this Agreement, Purchaser shall assume the performance of all terms, covenants and conditions of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating Leases with respect to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Agreement of Sale (Balcor Equity Pension Investors Ii), Agreement of Sale (Balcor Equity Pension Investors Iii)
Prorations. The following adjustments to the Purchase Price paid hereunder shall be made between Seller and Purchaser and shall be prorated (as applicable) on a per diem basis as if Purchaser owned the Property for the entire day on the Closing Date:
(a) All real estate taxes and installments of special assessments due and payable with respect to the calendar year of Closing. All other installments of special assessments not yet due and payable shall be the responsibility of Purchaser. If at the time of Closing the tax rate or the assessed valuation for the current year has not yet been fixed, taxes shall be prorated based upon the tax rate and the assessed valuation established for the previous tax year; provided, however, that Seller and Purchaser agree that to adjustthe extent the actual taxes for the current year differ from the amount so apportioned at Closing, the parties hereto will make all necessary adjustments by appropriate payments between themselves following the Closing, and this provision shall survive Closing.
(b) Current rents, advance rentals and other income from the Property shall be prorated between Seller and Purchaser at Closing based upon such amounts actually collected by Seller as of 11:59 p.m. on the day preceding Closing Date. Rent which is unpaid or delinquent as of the Closing Date (shall not be prorated, but such unpaid or delinquent rent collected after the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
Closing Date shall be delivered as follows: (i) Rentalsif Seller collects any rent after the Closing Date, Seller shall deliver to Purchaser any such rent within fifteen (15) days after the receipt thereof and (ii) if Purchaser collects any unpaid or delinquent rent after the Closing Date, Purchaser shall deliver to Seller any such rent relating to the period prior to the Closing Date within fifteen (15) days after the receipt thereof. Seller and Purchaser agree that all rent received by Seller or Purchaser after the Closing Date shall be applied first to current rentals and then to delinquent rentals, if any, in accordance with inverse order of maturity provided any payments to Seller shall be net of costs of collection. Purchaser will make a good faith effort after Closing to collect all rents (including without limitation the Pass Through Expenses and percentage rents described in Section 10.4(b4.4(c) below) in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to institute any lawsuit or incur any expense to collect delinquent rents. Notwithstanding the foregoing provisions, Seller shall not be required to prorate any amounts collected by Seller after Closing from former tenants of the Property, it being understood and agreed that Seller may retain all amounts that Seller recovers from such former tenants.
(iic) Cash Security Deposits With respect to additional rent attributable to insurance, taxes, common area maintenance and any prepaid rentsother operating expenses which are passed through to tenants under the Leases (the “Pass Through Expenses”) and as of the Closing Date are not yet collected, together with interest required Purchaser shall, upon collection of such Pass Through Expenses, but subject to be paid thereon.
(iiithe same rules of application set forth in Section 4.4(b) Utility charges payable by Sellerabove, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, remit to Seller will cause readings an amount equal to that portion of all said meters to be performed not more than five (5) days Pass Through Expenses which accrued prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts . With respect to Pass Through Expenses which Purchaser has elected have not been billed to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known tenants as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇Purchaser shall ▇▇▇▇ each tenant for utilities will same in accordance with each such tenant’s Lease. Within one hundred fifty (150) days after the end of 2010, Seller shall, with Purchaser’s reasonable cooperation and contingent upon receipt of any information held by Purchaser and not in the possession of Seller and reasonably necessary to such obligation, prepare a reconciliation of Pass-Through Expenses. Within one hundred fifty (150) days after the end of the year in which Closing occurs, Purchaser shall, with Seller’s reasonable cooperation and contingent upon receipt of any information held by Seller and not in the possession of Purchaser and reasonably necessary to such obligation, prepare a reconciliation of Pass-Through Expenses. In the event that any reconciliation shows that either Seller or Purchaser is owed an adjusting payment, then the party owing such payment shall promptly remit the same.
(d) Charges under service agreements assumed by Purchaser, utility charges for which Seller is liable, and other operating expenses of the Property shall be made if possible prorated between Seller and Purchaser at Closing.
(e) Security deposits shall, at Seller’s option, either be transferred or credited to Purchaser at Closing. Refundable cash or other refundable deposits posted with utility companies or other entities in connection with the Property shall, at Seller’s option, either be assigned to Purchaser and credited to Seller at Closing, or Seller shall be entitled to receive and retain such refundable cash and deposits. Seller shall cause its lender and Wellstream International Limited (“Wellstream”) to execute such documents as may be required to cause the letter of credit to be transferred to Purchaser as soon as is reasonably practical following the Closing and Seller shall cause Wellstream to reduce the amount of its scheduled 2011 letter of credit reduction by Two Thousand Dollars ($2,000) such that it shall be reduced by Seventy-Three Thousand Dollars ($73,000) instead of Seventy-Five Thousand Dollars ($75,000).
(f) Purchaser 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 Closing) (A) as a result of any renewals or expansions of existing Leases, and (B) under any new Leases (including any amendments of existing Leases) in each instance to the extent entered into after the Effective Date of this Agreement which have been approved (or deemed approved) by Purchaser in accordance with the terms of this Agreement; and (ii) all Tenant Inducement Costs and leasing commissions which become due and payable under an existing lease for a right exercised after the Effective Date. Seller shall be responsible for all other Tenant Inducement Costs. If as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Date Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for shall have paid any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyTenant Inducement Costs
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Wells Core Office Income Reit Inc)
Prorations. (a) Seller Buyer presently occupies the Property as the sole tenant under a triple net Lease with Seller. As such, all taxes, utilities, and Purchaser agree to adjustcertain operating expenses associated with the Property are paid by Buyer, as tenant. As such, none of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment these expenses shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearprorated at Closing. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shallHowever, at Closing, assume the following adjustments will be made:
(1) Buyer will receive credit for the amount of all real property taxes paid by tenant to Seller for the year of Closing through Closing, and Buyer shall be responsible for, and take title to the Property subject to all real property taxes for the year of Closing;
(2) Although rent will be prorated as of Closing, the operating (triple net) expenses incurred (excepting real property taxes) will not be. Seller estimates that the operating (triple net) expenses (excepting real property taxes) paid by tenant through the month of Closing will closely approximate what Seller will have spent (or be obligated to pay) for the period from January 31, 2004 through to the Closing.
(3) Utilities will be incurred transferred to Buyer as of Closing; and
(4) If either party desires to have a reconciliation of the 2004 operating (triple net) expenses (excepting real property taxes) as of Closing, that party must notify the other in connection with writing within fifteen (15) days following Closing. Absent such notice, both parties will be deemed to have waived any right under the Lease to a reconciliation and to have accepted the allocation of expenses as described in subsection b above as final. In the event either party elects to have such a reconciliation, all operating (triple net) expenses (excepting real estate tax appeals that are pending at property taxes) will be reconciled as of the time date of Closing. Seller Following the reconciliation, if requested, Buyer will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser pay to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentalamount, if any, received that Seller has paid in excess of amounts paid by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for tenant under the Lease; Seller will pay to Buyer the amount, if any, that tenant has paid in excess of amounts actually due under the Lease; and the party requesting the reconciliation will pay to the extent other $1,000.00 unless the same exceeds any expense stop specified reconciliation results in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertythe requesting party receiving payment in excess of $2,000.00.
Appears in 1 contract
Sources: Contract to Buy and Sell Real Estate (Carrier Access Corp)
Prorations. Prorations between Seller and Purchaser shall be made within thirty (30) days of the Closing as follows:
(a) Seller All taxes and Purchaser agree to adjust, as of 11:59 p.m. assessments on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits Assets for all prior years and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges all current year taxes and sewer charges. If there assessments that are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If on or before the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change have been paid in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared full by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) on or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at before the Closing. If All general real estate, personal property and ad valorem taxes and assessments for the actual amounts of the Proration Items are not known current year only shall be prorated as of the Closing Date, the prorations will be made at Closing Date on the basis of the best evidence then available; thereaftermost recent available information, when actual figures are receivedas adjusted by any known changes relating to the period during which the Closing occurs, re-but without any adjustment resulting from the sale of the Assets under this Agreement.
(b) All charges for gas, electricity, water, telephone, sewer and other utilities shall be prorated as of the Closing Date on the basis of the most recent available information, as reasonably adjusted to account for known variances from usage that would not otherwise be reflected in such information. For purposes of calculating prorations, Purchaser shall be entitled to the income accruing to Seller and responsible for the Losses and expenses accruing to Seller for the entire day upon which the Closing occurs. All such prorations will shall be made on the basis of the actual figuresnumber of days of the month which shall have elapsed as of the day of the Closing and based upon a 365- day year. The amount of such prorations shall be subject to adjustment in cash after the Closing, as and a final cash settlement will be made between when more complete and accurate information becomes available. Seller and PurchaserPurchaser agree to cooperate and use commercially reasonable efforts to make such adjustments not later than sixty (60) days after the Closing Date (which cooperation may include any reasonable inspection of Seller’s books and records). No prorations will be made in relation At least three (3) Business Days prior to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will Seller shall deliver to Purchaser a tentative statement of prorations setting forth the preliminary determination of all items to be made at the Closing with respect prorated pursuant to utility bills. Seller will be entitled to this Section 2.06 and supported by all deposits presently in effect with the utility providers, and Purchaser will be obligated detail reasonably necessary to make its own arrangements for any deposits with the utility providerssuch determination. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid Prior to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Purchaser and Seller will cause shall use commercially reasonable efforts to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share agree on such statement of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyprorations.
Appears in 1 contract
Sources: Asset Purchase Agreement
Prorations. 15.1 Water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (a) i.e. adjusted for all tenants' liabilities, if any, for such items); tenant reimbursement obligations for operating expenses paid by Seller and Purchaser agree to adjust, as of 11:59 p.m. on for the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days period prior to the Closing Date, and a per diem adjustment shall be made ; unpaid operating expenses for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date prorated on a "net" basis, as set forth above; and all other items of expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing Date (the "CLOSING STATEMENTProration Date"). The Closing Statement, once agreed upon, Seller shall be signed entitled to a credit for all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser and Sellershall make its own replacement deposits for utilities as may be required by the respective utilities involved. The proration Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due prior to the Closing Date shall be paid at by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. If any ongoing real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the cont▇▇▇, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All other prorations will be made at final except as to delinquent rent referred to in Paragraph 15.2 below and as provided in Paragraph 15.3.
15.2 All basic rent paid following the Closing on the basis Date by any tenant of the best evidence then available; thereafterProperty who is indebted under a Lease for basic rent for any period prior to the Proration Date in an amount greater than the amount of all current basic rent and any delinquency accruing after the Closing Date owed by said tenant to Purchaser shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt byPurchaser of a Post-Closing Receipt, when actual figures are receivedPurchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its reasonable, re-prorations will be made on the basis of the actual figuresgood faith efforts, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned at no additional cost or expense to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the , to collect all amounts which, upon collection, would constitute Post-Closing DateReceipts hereunder, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and provided Purchaser will shall not be obligated to make its own arrangements for incur any deposits expense, terminate any Lease or institute eviction or legal proceedings to collect "post-closing receipts." Purchaser shall promptly deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the utility providersterms hereof. The Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller shall be responsible for preparing all 1996 operating expense reconciliation statements and shall pay to Tenants any amounts owed to Tenants for overcharges in 1996 or any previous year in accordance with the provisions of the respective Leases. This Paragraph 15.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) monthsand the delivery and recording of the Deed.
(b) Purchaser will receive a credit on 15.3 All refunds in connection with any ongoing real estate tax protests for the Property initiated by Seller prior to the Closing Statement for shall remain the prorated amount (as property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the Proration Time) of all Rental previously event any such refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees, at no cost or collected expense to Purchaser, to execute any documents reasonably requested by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in connection with such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertytax protests.
Appears in 1 contract
Prorations. (a) 5.4.1 The following shall be prorated between Seller and Purchaser agree to adjust, as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (on the "PRORATION TIME"), basis of the following (collectively, actual number of days elapsed over the "PRORATION ITEMS"applicable period):
(ia) RentalsAll real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges actually received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable security deposits (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date in accordance with Section 10.4(bthe terms of the respective Leases) belowto Purchaser on the Closing Date. Seller shall deliver to Purchaser at Closing any tenant security deposits which are held in the form of letters of credit. Rents which are delinquent as of the Closing Date shall not be prorated on the Closing Date. Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent Purchaser receives rents on or after the Closing Date, such payments shall be applied first toward the rents for the month in which the Closing occurs (and prorated between Purchaser and Seller accordingly), second, to the rents that shall then be due and payable to Purchaser for the period of time following the month in which Closing occurs, and third to any unpaid rents owed to Seller for the period of time prior to the month in which Closing occurs, with Seller’s share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser. Purchaser may not waive any delinquent rents or modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent, which consent may be given or withheld in Seller’s sole and absolute discretion. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to seek to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or declare a default under any Lease). With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Closing Date, Seller shall retain all rights relating thereto.
(iic) Cash Security Deposits All income and any prepaid rents, together with interest required operating expenses customarily apportioned between sellers and purchasers of real estate properties similar to be paid thereonthe Property and located in the same geographic area as the Property.
(iiid) Utility charges payable Charges and payments under Assumed Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the Assignment and Assumption of Contracts.
(e) Any fees or licenses prepaid by SellerSeller for which Purchaser will receive credit or benefit following Closing, including, without limitation, electricity, water charges and sewer charges. If there fees for licenses which are meters on the Real Property, Seller will cause readings of all said meters transferred to be performed not more than five (5) days prior to Purchaser at the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date annual permit and the Closing Date based on the most recent meter readinginspection fees.
(ivf) Amounts payable under the Spectrasite Agreements Utilities, including, without limitation, telephone, steam, electricity and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixedgas, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available; thereafter, when actual figures or if current meter readings are receivedavailable, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthssuch readings.
(bg) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assigned to Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After at the Closing, Seller will cause which shall be credited in their entirety to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals Seller.
(which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyh) Intentionally Deleted.
(i) Intentionally Deleted.
(j) Intentionally Deleted.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Prorations. (aA) Rents, including, without limitation, percentage rents, if any, and any additional charges and expenses payable by tenants under Leases, all as and when actually collected; real property taxes and assessments due and payable in the year in which the Closing occurs (without regard to the date levied, assessed or accrued and without regard to any fiscal year) (provided there shall be no proration of delinquent rents to Seller until such delinquent rents are collected); water, sewer and utility charges; amounts payable under any Service Contracts or other agreements or documents; annual permits and/or inspection fees (calculated on the basis of the period covered); maintenance charges and amounts payable under reciprocal easement agreements and other recorded documents; vending machine and paper recycling income; and any other income and expenses of the operation and maintenance of the Property (including, without limitation, expenses prepaid by Seller and Purchaser agree expenses already paid by Seller but which are being amortized over time by Seller and with respect to adjustwhich Seller shall receive a credit at Closing in the amount of the prepaid or unamortized portion thereof), shall all be prorated as of 11:59 p.m. on the day preceding immediately prior to Closing (i.e., Buyer is entitled to the income and responsible for the expenses of the day of Closing), on the basis of a 365-day year; provided, however, that any real estate taxes payable directly by tenants to the governing taxing authorities or reimbursable by tenants after Closing shall not be prorated. Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions, as provided in Section 7.2. All rents and other sums collected after the Closing Date (the "PRORATION TIME"shall be applied and paid as provided in this Section 8.5(a). If a tenant or other payor shall specifically designate a payment as being attributable to, the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required or if it is readily ascertainable that a payment received from a tenant or other payor is attributable to be paid thereon.
(iii) Utility charges payable by Sellera specific period of time or for a specific purpose, including, without limitation, electricityfor operating expenses or real estate tax payments which were not paid or were underpaid by such tenant or for reimbursement for work performed by Seller on the tenant's premises, water charges and sewer chargessuch payment shall be so applied. If there is no such designation or if not so readily ascertainable, any payment received after Closing shall be deemed a payment due after the Closing until the tenant or other payor is current in its post-Closing obligations, and then such payments shall be paid to Seller to the extent of any rent or other sums owing to Seller for periods prior to Closing. Buyer shall use reasonable efforts to collect such rents and other sums owing to Seller but shall not be required to initiate litigation or terminate any lease. Seller retains the right to collect any such rents and other sums from tenants and other payors after Closing; provided, however, that Seller shall have no right to evict any tenant or to exercise any other landlord-tenant remedy other than to sue for collection. Without intending to limit the generality of the ▇▇▇egoing, Buyer and Seller acknowledge and agree that certain rental payments by the tenants are meters collected monthly in arrears and, upon receipt of such payments after Closing, such sums shall be applied toward the period to which they properly pertain, and shall be prorated between Seller and Buyer, with the party receiving same promptly paying to the other party such other party's share thereof. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the calendar year in which the Closing occurs shall be prepared by Buyer with the cooperation of Seller within ninety (90) days following the end of such year in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(a). For those Leases in which tenants pay a proportionate share of taxes, insurance charges or other expenses over a base year amount or expense stop, the proration between the parties of the income received from tenants over such base year amount or expense stop shall be calculated based on the Real Propertytotal amount of such expenses for the Property incurred by both Seller and Buyer for the entire calendar year, rather than on the amount of such expenses actually incurred by each party for such year, in order to enable the parties to determine if the base year amount or expense stop for such year is exceeded. Such income as so calculated shall be prorated between the parties based on the number of days each party owned the Property during such year and otherwise in accordance with this Section 8.5(a). Buyer shall promptly reimburse Seller will cause readings for Seller's prorated share of all said meters to be performed not more than five expenses that are prepaid by Seller before Closing for which Buyer receives reimbursement from a third party after Closing. The amount of any cash security deposits held by Seller under Leases (5) days plus any interest thereon accrued prior to the Closing Datedate of Closing, and a per diem adjustment if required by law or contract) shall be made credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits). Seller shall receive credits at Closing for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts amount of any utility or other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied deposits with respect to the latest assessed valuation. If, subsequent Property to the Closing Date, real estate taxes (by reason of change in either assessment extent such deposits are assignable to Buyer and are so assigned or rate or for any other reason) for the Real Property and Improvements should be determined credited to Buyer at Closing. Buyer shall cause all utilities to be higher or lower than those that are apportioned, a new computation shall be made, transferred into Buyer's name and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending account at the time of Closing. At Closing, Seller will be charged shall transfer to Buyer all non-cash security deposits and credited deliver to Buyer all necessary consents to such transfers (or as soon as reasonably practicable after Closing, if the procedures for such transfer reasonably require a delay in transfer until after the Closing). Between the date of Closing and until such transfer takes place, Seller agrees to hold any such non-cash security deposit for the amounts benefit of all Buyer. Seller and Buyer hereby agree that if any of the Proration Items relating to the period up to the Proration Time, aforesaid prorations and Purchaser will credits cannot be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth calculated accurately on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (or in the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be case of rents or other charges that are paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) arrears or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing are otherwise not yet ascertainable or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known payable as of the Closing Date, then the prorations will same shall be made calculated as soon as reasonably practicable after the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the other party within thirty (30) days thereafter. Any amounts not paid within such thirty (30) day period shall bear interest from the date actually received by the payor until paid at the greater of (i) the rate of ten percent (10%) per annum or (ii) the prime rate (or base rate) reported from time to time in the "Money Rates" column or section of THE WALL STREET JOURNAL as being the base rate on corporate loans at larger United States money center commercial banks plus two (2) percent. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the payments received by such party from tenants and other payors from and after Closing on and to the basis manner in which such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice. Any tax refund received by Buyer or Seller after Closing (net of third party costs incurred in obtaining such refund) shall be paid to the party(ies) who previously paid or were responsible for such taxes, whether it be Seller, Buyer, or tenants under the Leases, and shall be prorated appropriately. The preceding sentence shall survive Closing.
(B) The cost of the best evidence then available; thereafterowner's policy of title insurance and all other title charges (including the cost of any extended coverage, when actual figures are received, reendorsements and reinsurance or co-prorations will be made on insurance charges) and the basis cost of the actual figures, Survey shall be paid one-half by Seller and a final cash settlement will one-half by Buyer. Seller and Buyer shall each pay one-half of the state deed tax in connection with recording the deed and all recording fees. Any closing escrow fees and other closing charges of the Title Company shall be made split equally between Seller and PurchaserBuyer. No prorations Buyer shall be solely responsible for any and all costs and expenses pertaining to its financing of the Property (although Buyer obtaining any financing is not a condition to its obligations hereunder), including, without limitation, loan title policies, lender's escrow and closing fees and all intangibles and mortgage taxes. The parties will execute and deliver any required transfer or other similar tax declarations to the appropriate governmental entity at Closing.
(C) The total annual percentage rent payable under each Lease for the lease year in which the Closing occurs shall be made in relation to insurance premiumsprorated between Seller and Buyer based solely on the respective number of days of ownership of the Property by Seller and Buyer during such year, regardless of what portion of sales occur during the different parts of such year. At Closing, the parties shall estimate the total percentage rent payable under each Lease for the applicable lease year based on the percentage rent paid under such Lease for the prior year, and Seller's insurance policies will not be assigned to PurchaserSeller shall receive a credit at Closing for its prorata share thereof. Final readings and Once the final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as amount of percentage rent is determined, the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providersparties shall reprorate, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. party owing the other shall promptly remit the amount owed no later than fifteen (15) days after the reproration is determined.
(D) The provisions of this Section 10.4(a) will 8.5 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Prorations. The Purchase Price set forth in Section 4 is subject to the following adjustments and prorations.
10.1 Plus an amount which will credit SELLER for lease payments which have been paid in advance for time periods following Closing (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIMEPrepaid Leases"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and 10.2 Minus the amounts which will credit BUYER for the following:
10.2.1 Any lease payments for which BUYER becomes obligated relating to any prepaid rents, together with interest required period of time prior to be paid thereonClosing.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the 10.2.2 Any advertising services delivered after Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter readingwhich SELLER has already billed or otherwise receives payment.
(iv) Amounts payable under the Spectrasite Agreements 10.2.3 All items of income and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items expense listed below relating to the period up to the Proration Time, and Purchaser Assets will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known prorated as of the Closing Date, with SELLER liable to the prorations will extent such items relate to any time period up to and including the Closing Date, and BUYER liable to the extent such items relate to periods on or subsequent to the Closing Date; including without limitation (a) personal property, real estate, occupancy and water taxes, if any, on or with respect to the Assets; (b) rents, taxes and other items payable by SELLER under any contract to be made at assigned to or assumed by BUYER; (c) the amount of sewer rents and charges for water, telephone, electricity and other utilities and fuel; (d) all rentals that are or would be payable or have accrued pursuant to "percentage rental" lease provisions with respect to periods after the Closing Date (for purposes of this Section 10.2.3, the Closing Date shall be the end of any such periods for accrual purposes); and (e) all items paid or payable on or after the Closing Date under any obligation specifically assumed to the extent not specifically referenced in clauses (a) - (d) above which are normally prorated in connection with similar transactions. A list of percentage leases with the date of expiration is attached hereto as Exhibit 10.2.3;
10.2.4 If current payments with respect to items to be prorated pursuant to this Section 10.2 are not ascertainable on or before the Closing Date, such payments shall be prorated on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇most recently ascertainable ▇▇▇▇ for utilities will therefor and shall be made if possible as of reprorated between SELLER and BUYER when the Closing Date, in which event no proration will be made at the Closing current bills with respect to utility bills. Seller will such items have been issued and a cash settlement shall be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(amade within thirty (30) will survive the Closing for twelve (12) monthsdays thereafter.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Prorations. At least two (a2) Seller and Purchaser agree to adjustbusiness days prior to, but calculated as of 11:59 p.m. on the Closing Date, all obligations and liabilities listed below relating to the Business and/or Assets will be prorated as of the Closing Date, with Sellers liable to Purchaser therefor to the extent such items relate to any time period up to and including the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment Purchaser liable to Sellers therefor to the extent such items relate to any time period commencing on or after the Closing Date: personal property, real estate, occupancy and water taxes, if any, on or with respect to the Business and/or Assets; rents, taxes and similar items payable by Sellers under any Assigned Contract; the amount of any license or registration fees with respect to any Permits which are being assigned or transferred hereunder; the amount of sewer rents and charges for water, telephone, electricity and other utilities and fuel; and any other items which are normally prorated in connection with similar transactions. Sellers agree to furnish Purchaser with such documents and other records as Purchaser reasonably requests in order for Purchaser to calculate all adjustments and prorations pursuant to this Section 1.5. The amount of such prorations owed by Purchaser or Sellers pursuant to this Section 1.5 shall be made for paid to Purchaser by Sellers or to Sellers by Purchaser, as the days between the meter reading date and case may be, on the Closing Date based and shall be treated as an adjustment to the Purchase Price paid by Purchaser to Sellers on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearClosing Date. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall current payments with respect to items to be upon the basis of the tax rate for the preceding year applied prorated pursuant to the latest assessed valuation. If, subsequent to this Section 1.5 are not ascertainable on the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation such payments shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing prorated on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇most recently ascertainable ▇▇▇▇ for utilities will therefor and shall be reprorated between Sellers and Purchaser within 30 days after the Closing Date and a cash settlement shall be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthspromptly thereafter on an item by item basis.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Prorations. A. Rents (aexclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; 1995 (if not paid) Seller and Purchaser agree to adjust, 1996 real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the day preceding Closing Date. Assessments of record payable in installments which are due subsequent to the Closing Date (shall be paid by Purchaser. If the "PRORATION TIME")amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The parties agree to re-prorate the proration items within forty-five (45) days after the date of Closing, except as to delinquent rent referred to in Paragraph 12B below.
B. All sums paid following the Closing Date by any tenant of the Property who is indebted under a lease for any period prior to and including the Closing Date after the payment to Purchaser of all then current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (collectively10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. For a period of sixty days following Closing, Purchaser shall send monthly collection notices to tenants residing at the "PRORATION ITEMS"):
(i) RentalsProperty owing Post-Closing Receipts. Within 90 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 60 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits the terms hereof. At Seller's expense, Seller retains the right to conduct an audit, at reasonable times and any prepaid rentsupon reasonable notice, together with interest required of Purchaser's books and records to be paid thereon.
(iii) Utility charges payable by verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, including, without limitation, electricity, water charges and sewer chargesPurchaser shall pay to Seller said additional Post-Closing Receipts. If there are meters on Seller shall deliver to Purchaser any sums received by Seller after the Real Property, Seller will cause readings Closing Date which relate to the period of all said meters to be performed not more than five (5) days time prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearalong with an accounting identifying any such sums. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions Paragraph 12B of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyDeed.
Appears in 1 contract
Sources: Sale Agreement (Balcor Realty Investors 86 Series I)
Prorations. Real estate taxes, expenses of operation and any other similar items shall be adjusted ratably as of the time of closing. Taxes for the year of Closing shall be prorated as of the Closing Date. Current rents collected from Tenants under Leases shall be prorated for the month during which the Closing occurs (athe term “rents” as used in this Agreement includes all payments due and payable by Tenants under the Leases). Real estate taxes for the calendar year of Closing shall be prorated as of the Closing Date. Unpaid and delinquent rent collected by Seller and Purchaser after the Closing Date will be delivered as follows: (i) if Seller collects any unpaid or delinquent rent for the Property, Seller will, within fifteen (15) days after the receipt thereof, deliver to Purchaser any such rent which Purchaser is entitled to hereunder relating to the date of Closing and any period thereafter, and (ii) if Purchaser collects any unpaid or delinquent rent from the Property, Purchaser will, within fifteen (15) days after the receipt thereof, deliver to Seller any such rent which Seller is entitled to hereunder relating to the period prior to the date of Closing. Seller and Purchaser agree that all rent received by Seller or Purchaser will be applied first to adjustrents that became due and payable during the calendar month of Closing, and second, to those which were due and payable after Closing, and third, to those which were due and payable prior to Closing. Purchaser will use commercially reasonable efforts after Closing to collect all unpaid and delinquent rents in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to institute any lawsuit or other collection procedures to collect such unpaid or delinquent rents. In the event that there shall be any rents or other charges under any Leases which, although relating to a period prior to Closing, do not become due and payable until after Closing or are paid prior to Closing but are subject to adjustment after Closing (e.g., such as year end operating and common area expense reimbursements and the like), then any rents or charges of such type received by Purchaser or its agents or Seller or its agents subsequent to Closing will, to the extent applicable to a period extending through the Closing, be prorated between Seller and Purchaser as of 11:59 p.m. Closing and Seller’s portion thereof will be remitted promptly to Seller by Purchaser without reduction for any costs of collection or processing. At Closing, Purchaser will be entitled to a credit against the Purchase Price for all cash security deposits held pursuant to any of the Leases (and any pre-paid rent thereunder if not then earned by Seller) and Seller shall deliver to Purchaser any non-cash security deposits thereunder, if any. Payments of accounts for water, sewer, electricity, telephone and all other utilities currently in the name of Seller (or its managing agent) shall be placed in the name of Purchaser on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required Seller shall arrange for final meter readings and metered services to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters conducted on the Real Property, Closing Date. Seller will cause readings of shall be responsible to pay in full all said meters bills for such utility charges related to be performed not more than five (5) days any period prior to the Closing Date, Date and a per diem adjustment Purchaser shall be made for the days between the meter reading date responsible to pay all utility charges related to any period on and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date. With respect to utilities which are not metered, real estate taxes (by reason of change in either assessment or rate or charges for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation such service shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known prorated as of the Closing Date, based on charges for the prorations will previous billing period, and Purchaser and Seller shall receive credits or charges, as appropriate, with such amounts to be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on prorated promptly after the basis final bills are issued. Seller shall cooperate with Purchaser to effect the transfer of the actual figures, and a final cash settlement will be made between utility accounts from Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings Expenses pertaining to Service Agreements that Purchaser elects to assume and final ▇▇▇▇▇▇▇▇ for utilities will personal property taxes (if applicable) and any other expenses relating to the Property shall be made if possible prorated between the parties as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Real Estate Purchase Contract (Nuveen Global Cities REIT, Inc.)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits “Proration Items”): real estate and any prepaid rents, together with interest personal property taxes and assessments which are required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year or fiscal year. If , as the same may be applicable in accordance with the period used by the applicable taxing authority, in which the Closing Date shall occur before occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the tax rate is fixed, terms of (c) below) and operating expenses payable by the apportionment of real estate taxes shall be upon the basis owner of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of ClosingProperty. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be mutually and reasonably prepared by Seller and submitted to Purchaser at least two (2) days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). Purchaser and Seller hereby agree to use good faith efforts to finalize the Closing Statement in accordance with the provisions of this Agreement. The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter(hereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event no proration will be made at the Closing with respect to such utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller within nine (9) months following the Closing. The provisions of this Section 10.4(a10.4 (excluding subsection (e) which is governed by Section 3.2(a) above) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Closing Time) of all Rental Rentals previously paid to or collected by Seller and attributable to any period from and after following the Proration Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all RentalRentals, if any, received by Seller after Closing and properly attributable to any period from and after following the Proration Closing Time. "RENTAL" “Rentals” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration ’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to Seller or its successor by tenants under the Tenant Leases or from other occupants or users of the Property), excluding specific tenant ▇▇▇▇▇▇▇▇ which are governed by Section 10.4(d) below. Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. All sums collected by Purchaser from and after Closing within ninety (90) days of the Closing Date from each Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time governed by Section 10.4(c) below and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to current amounts owed by such Tenant to Purchaser and then to prior delinquencies owed by such Tenant to Seller. Seller shall have no right to any Delinquent Rentals collected by Purchaser after the expiration of ninety (90) days after the Closing Date; provided, however, that the foregoing limitation on Delinquent Rentals shall not apply to Seller’s right to collect tax expenses in the amount of $191,736.18 and Northrop Grumman’s share of the Above Ground Storage Tank in the amount of $57,911.47, both due and owing from Northrop Grumman as of the date of the Closing (collectively, the “NG Pre-Closing Payables”) which NG Pre-Closing Payables shall remain Seller’s right to collect from Northrop Grumman so long as Hincs Interests Limited Partnership is the manager under the Management Agreement and thereafter Purchaser agrees to use commercially reasonable good faith efforts to obtain the NG Pre-Closing Payables from Northrop Grumman for delivery to Seller. Any sums collected by Purchaser and due Seller will be promptly remitted to Seller. Notwithstanding the foregoing, however, after the Closing Date Seller shall have no right, other than with respect to the NG Taxes, to collect Delinquent Rentals, amounts owed for Operating Expense Recoveries and ▇▇▇▇▇▇▇▇ for tenant work orders directly from Tenants.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Wells Real Estate Investment Trust Ii Inc)
Prorations. (a) Seller The Parties will each execute and Purchaser agree deliver to adjustEscrow Agent for the Closing a closing statement setting forth the Purchase Price and all closing credits, prorations, charges, costs and adjustments contemplated by this Agreement. All prorations will be calculated as of 11:59 p.m. on the day preceding the Closing Date (by Escrow Agent, based upon the "PRORATION TIME")latest available information, the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits income and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made expense for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts being allocated to Buyer. Buyer will receive a credit for any rent paid or payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable by Tenant for the calendar year. If period beginning with and including the Closing Date shall occur before through and including the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis last day of the tax rate for the preceding year applied month in which Closing occurs. All other credits and charges to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property Buyer and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known similarly prorated as of the Closing Date. Real estate taxes and assessments, if not the sole responsibility of Tenant under the Lease, will be prorated on an accrual basis and, if actual amounts are not available, will be based upon the current valuation and latest available tax rates or assessments. All pre-paid or abated rents or deposit amounts (including any tax or expense escrows and any security deposits) held by Seller under the Leases, if any, will be paid to Buyer in the form of a credit against the Purchase Price. If after Closing either Party receives any rents or other amounts that properly belong to the other Party based up on the Closing prorations, such amounts will be immediately remitted to such other Party.
(b) If after Closing either Party discovers any errors, or receives additional information, indicating that the prorations were inaccurate, such Party will promptly notify the other and the Parties will correctly re-prorate the amounts in question. No such correction will be required later than twelve (12) months after the Closing Date unless prior to such date the Party seeking the correction has given a written notice to the other Party specifying the nature and basis for such correction; provided, however, that if a correction is sought because current tax or assessment bills for the Property were not available as of Closing, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing correction period with respect to utility the closing proration of such taxes or assessments will if needed continue beyond such 12-month period until thirty (30) days after Buyer’s receipt of the applicable bills. Seller In the event of any re-proration under this Section, the Party owing funds will within thirty (30) days after determination remit to the other Party the amount shown to be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providersdue. The provisions of this Section 10.4(a) will 12 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Prorations. At the Closing, prorations between the applicable Seller, on the one hand, and Buyer, on the other hand, shall be made for each Property as follows:
(a) All general ad valorem taxes, special assessments and other taxes or charges of a similar nature imposed by any Governmental Authority against a CLP Managed Property, or by any applicable property owners association, utility district or any other body (collectively, the “Impositions”) against the CLP Managed Properties for all prior years and all current year Impositions that are due and payable on or before the Closing Date, together with all payroll taxes, sales taxes, license taxes, liquor taxes and use taxes that are due and payable with respect to the CLP Managed Properties on or before the Closing Date, shall have been paid by the applicable Seller on or before the Closing Date, subject to proration as follows: Buyer shall be responsible for the payment to each applicable Seller of the amount of Impositions that relate to the period on and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding after the Closing Date (and the "PRORATION TIME"Sellers shall be responsible for the payment of such Impositions relating to the period prior to the Closing Date). To the extent that Impositions for CLP Managed Properties for the current year have accrued but are not yet due and payable, such amounts shall be paid by Buyer following the Closing Date, and Buyer shall receive a credit against the Purchase Price for the amount thereof that is attributable to the period prior to Closing, such pro ration to be based on the most recent available information, as adjusted by any known changes relating to the period during which the Closing occurs, and shall be subject to true-up pursuant to Section 6.5(l). Sellers and Buyer acknowledge that with respect to each CLP Leased Property, the following (collectivelyTenant under the Lease for such CLP Leased Property is responsible to pay all Impositions with respect to such CLP Leased Property, the "PRORATION ITEMS"):
(i) Rentals, in accordance with and therefore shall not be subject to proration under this Section 10.4(b) below6.5.
(iib) Cash Security Deposits All charges for gas, electricity, water, telephone, sewer and other utilities for the CLP Managed Properties shall be prorated on the basis of the most recent available information, as reasonably adjusted to account for known variances from usage that would not otherwise be reflected in such information. Sellers shall receive a credit for, and shall assign to Buyer, all deposits made by Sellers at the CLP Managed Properties for any prepaid rentsutility services; Sellers shall request that the companies and municipalities furnishing utility services to the CLP Managed Properties make termination readings on the morning of the Closing Date, together or on a date as soon thereafter as practicable, and submit final statements for utility services, which shall be reconciled pursuant to the Statement of Adjustments. Sellers and Buyer acknowledge that with interest required respect to each CLP Leased Property, the Tenant under the Lease for such CLP Leased Property is responsible to pay all such utility charges with respect to such CLP Leased Property, and therefore shall not be paid thereonsubject to proration under this Section 6.5.
(iiic) Utility With respect to the CLP Managed Properties, all membership dues for the month in which the Closing occurs or for any subsequent period after Closing, all items of expense under Approved Contracts, and all membership fees, charges, handicap fees, driving range fees, golf club storage fees, locker fees, trail fees and other income items that have accrued to the accounts of members or customers of the CLP Managed Properties but that have not been invoiced as of the Closing Date, shall be prorated as of the Closing Date.
(d) All prepaid membership dues, fees or charges, handicap fees, driving range fees, golf club storage fees, locker fees, trail fees and other charges payable collected by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on Seller or the Real Property, Seller will cause readings Manager with respect to the CLP Managed Properties shall be prorated as of the Closing Date.
(e) Buyer shall receive a credit in the amount of all said meters deposits received by Sellers or Manager for Bookings to be performed not more than five take place after the Closing with respect to the CLP Managed Properties (5and shall assume all liability arising after Closing with respect thereto).
(f) days Buyer shall receive a credit for all gift certificates, rain checks, or other instruments redeemable for goods or services at the CLP Managed Properties and sold or issued on or after the date that is twelve (12) months prior to the Closing Date, and a per diem adjustment shall be made for to the days between the meter reading date and extent they have neither been redeemed nor expired as of the Closing Date based on the most recent meter readingDate.
(ivg) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not Buyer shall receive a credit for any cash security deposit held by Sellers pursuant to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis any of the tax rate for the preceding year applied Leases, to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (extent such security deposit or any portion thereof has not been retained by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser Sellers prior to the Closing Date pursuant to the terms of the applicable Lease, and Buyer shall thereafter be responsible for the return of such deposit in accordance with the applicable lease; Seller shall receive a credit for any cash security deposit held by Ground Lessors pursuant to any of the Ground Leases, to the extent such security deposit or any portion thereof has not been retained by the Ground Lessors prior to the Closing Date pursuant to the terms of the applicable Ground Lease.
(h) All other items of income or expense with respect to the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, CLP Managed Properties shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known prorated as of the Closing Date, with all such items of income and expense that relate to the prorations will be made at Closing on Date and the basis period after the Closing Date being credited and/or charged, as applicable, to the Buyer’s account. Without limiting the generality of the best evidence then available; thereafterpreceding sentence, when actual figures are received, re-prorations will be made on the basis of the actual figures, (i) income received by Sellers and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final accounts receivable that represent ▇▇▇▇▇▇▇▇ for utilities will goods and services to be made if possible as of rendered on or after the Closing DateDate shall be for the account of Buyers, (ii) pre-paid expenses which relate to goods or services to be provided to the CLP Managed Properties in which event no proration will be made at the ordinary course of business on or after the Closing with respect to utility bills. Seller will Date shall be entitled to all deposits presently in effect with the utility providersborne by Buyers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a(iii) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Leaserefunds, to the extent relating to the period prior to the Closing, shall be for the account of the applicable Seller.
(i) Buyer and Seller acknowledge and agree that the balance of all tax and insurance escrow accounts described in the Leases and Management Agreements and held by Seller (the “Escrow Accounts”) and the balance of all Prepaid Annual Membership Dues (as defined in the Leases and/or Management Agreements) held by Seller shall be transferred and assigned by Seller to Buyer at the Closing (or alternatively, Buyer shall receive a credit to/reduction of the Purchase Price in the amount of such Escrow Accounts and Prepaid Annual Membership Dues) and Buyer shall thereafter be responsible for same exceeds any expense stop specified in accordance with the applicable Lease or Management Agreement.
(j) Buyer and Seller acknowledge and agree that the balance of all cap ex reserve accounts at the Properties (the “Reserves”) are set forth on Schedule 10.1(v)(A) as of the date of such Leasereport. Buyer shall receive a credit against the Purchase Price in the amount of the balance of such Reserves in place on the day prior to the Closing Date (which amount includes an uncommitted contingency component which is being credited against the Seller’s obligation to credit Buyer an amount equal to the Arrowhead Tap Fee pursuant to Section 5.2(c)), retroactive rentalsand Buyer shall thereafter be responsible for same in accordance with the applicable Lease or Management Agreement, all administrative chargesincluding the obligation to establish new reserve accounts as may be required. Seller shall retain ownership of the Reserve accounts which are not included in the Property. Prior to Closing, utility charges, tenant deposits into and withdrawals from the Reserves shall be made in the ordinary course of business in accordance with the terms of the applicable Lease or real propertyManagement Agreement.
(k) XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Lifestyle Properties Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by SellerRents, including, without limitation, electricitypercentage rents, water if any, and any additional charges and sewer charges. If there are meters expenses payable under tenant leases, all as and when actually collected (whether such collection occurs prior to, on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to or after the Closing Date); real property taxes and assessments; water, sewer and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and utility charges; amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
any service contracts; annual permits and/or inspection fees (v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon calculated on the basis of the tax rate for period covered); and any other expenses of the preceding year applied operation and maintenance of the Property (including, without limitation, those expenses listed on SCHEDULE 5 attached hereto already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the unamortized portion thereof), together with tenant improvement costs, leasing commissions, as provided in Section 7.2 above, shall all be prorated as of 12:01 a.m. on the date the Deed is recorded, on the basis of a 365-day year. Any sums collected by Buyer from tenants after the Closing shall be promptly paid to Seller to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason extent of change in either assessment or rate or for any rents and other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, sums which were delinquent at Closing, assume after first applying all expenses incurred such amounts collected to current obligations. Buyer shall use reasonable efforts to collect such delinquent rents but shall not be obligated to expend any sums, commence any litigation, terminate any lease or threaten to terminate any lease to do so. Seller retains the rights to collect any such delinquent rents from tenants after Closing provided that Seller shall not commence any legal or equitable proceedings in the nature of an unlawful detainer, eviction or other proceeding which would have the effect of interfering with any tenant's quiet enjoyment of its leased premises or result in a lien or encumbrance on such leased premises. The amount of any security deposits under tenant leases shall be credited against the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property, in which case all such deposits for which Seller receives credit shall remain in place for the benefit of Buyer and Seller shall execute and deliver such documents as shall be necessary to assign such deposits to Buyer. Buyer shall cause all utilities to be incurred in connection with any real estate tax appeals that are pending transferred into Buyer's name and account at the time of Closing. Seller will be charged and credited for the amounts of all Buyer hereby agree that if any of the Proration Items relating to the period up to the Proration Time, aforesaid prorations and Purchaser will credits cannot be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth calculated accurately on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, then the prorations will same shall be made at calculated as soon as reasonably practicable after the Closing Date and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay said sum to the other party. Seller and Buyer shall jointly prepare and approve a preliminary Closing Statement on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis leases and other sources of the actual figuresincome and expenses, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation shall deliver such computation to insurance premiums, and Seller's insurance policies will not be assigned the Title Company prior to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on The parties shall pay the Closing Statement for the prorated amount (closing costs below as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyfollows:
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Pacific Gulf Properties Inc)
Prorations. 13.1. ▇▇▇ts (a) Seller exclusive of delinquent rents, but including prepaid rents); security deposits which are refundable under the leases; escrow and/or impounds held by the Lender (which will be assigned to Purchaser and Purchaser agree credited to adjust, Seller); interest on the First Note; water and other utility charges; fuels; operating expenses; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding later of the Closing Date or the actual date of the closing of this transaction (the "PRORATION TIMEProration Date"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior credited to the Closing Date, and a per diem adjustment shall be made for balance of the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 13.2 below.
13.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for any period prior to and including the Closing Date shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Purchaser shall pay to Seller and Purchaseran amount equal to the amount such Post-Closing Receipt exceeds the amount currently due by the tenant paying such Post-Closing Receipt under its lease. No prorations will be made in relation Purchaser shall use its best efforts to insurance premiumscollect all amounts which, and Seller's insurance policies will upon collection, would constitute Post-Closing Receipts hereunder provided, however, that Purchaser shall not be assigned required to Purchaserinstigate litigation to collect Post-Closing Receipts. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 13.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree to adjust, The following shall all be prorated as of 11:59 p.m. 12:01 a.m. on the date of Closing, on the basis of a 365-day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
year: (i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Sellerand all other income from the Property, if any, including, without limitation, electricityany additional charges, water charges prepaid rent, if any, and any other expenses payable under the Leases, if any, all as and when actually collected (whether such collection occurs prior to, on, or after the Closing Date); (ii) real property taxes and assessments for the year in which the Closing occurs, (iii) water, sewer and utility charges. If there are meters , (iv) amounts payable under any service contracts for the month in which the Closing occurs and prior months, (v) annual permits and/or inspection fees (calculated on the Real basis of the period covered), and (vi) any other expenses relating to the operation and maintenance of the Property. For three (3) months following the Closing, Buyer shall include all rent arrearages, if any, on Buyer's monthly invoices or billings to tenants ▇▇▇ ▇▇omptly deliver to Seller will cause readings of all said meters any such rent arrearages that relate to be performed not more than five (5) days periods prior to the Closing if and when collected by Buyer; PROVIDED, HOWEVER, that Rents received by Buyer after the Closing Date shall be first applied to Rents accruing after the Closing Date, and a per diem adjustment then to Rents accruing prior thereto. Buyer shall be made under no obligation to recover for the days between benefit of Seller any unpaid Rents owing by tenants for periods prior to Closing Date. Seller shall have the meter reading right before the Closing, to take such action as Seller deems appropriate to recover any unpaid Rents for periods prior to the date of Closing, and after the Closing Date based on date of Closing, Seller may pursue any and all remedies available to Seller in law or equity to recover unpaid Rents for periods prior to the most recent meter reading.
(iv) Amounts payable date of Closing. The amount of any security or other deposits as actually collected, IF ANY, or similar fees paid by tenants under the Spectrasite Agreements and amounts payable Leases, as to the extent actually collected, shall be credited against the cash portion of the Purchase Price; accordingly, Seller shall retain the deposit and/or similar fees paid by tenants under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due Leases, as actually collected, and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes Buyer shall be upon the basis responsible for handling all security deposits of the tax rate for tenants of the preceding year applied to Property in accordance with the latest assessed valuationLeases and applicable law. IfSeller shall retain all utility deposits, subsequent to if any. Seller and Buyer hereby agree that if any of the aforesaid prorations cannot be calculated accurately on the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for then the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation same shall be madecalculated within thirty (30) days after the Closing Date, or as soon as sufficient information is available to permit the parties to accurately calculate such proration(s), and Seller agrees to either party owing the other party a sum of money based on such subsequent proration(s) shall pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating said sum to the period up to other party within ten (10) days after such calculation is made; PROVIDED, HOWEVER, that the Proration Time, tax prorations and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations assessments referenced in Section (ii) herein shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known final as of the Closing Date. Notwithstanding anything to the contrary contained herein, to the prorations will be made at Closing on the basis extent any of the best evidence then available; thereafter, when actual figures foregoing Property-level expenses are received, re-prorations will be made on the basis responsibility of Tenant pursuant to the terms of the actual figuresCitiCorp Lease, and a final cash settlement will then such expense items shall NOT be made prorated --- between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made Buyer at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on Seller shall pay the premium for the Title Policy without extended coverage or endorsement and without any additional premium to delete the so-called "survey exception," if any. Buyer shall pay the premiums for any endorsements to the Title Policy which Buyer requests. Escrow fees shall be split evenly between Buyer and Seller each paying half. Recording charges, transfer taxes and any other expenses of the escrow for the sale shall be paid by Buyer. All costs and charges described in this paragraph shall be paid at Closing. Any bills received after the Closing Statement and not previously prorated in escrow shall be divided as provided herein, and shall be paid promptly upon receipt of a bill therefor. Seller shal▇ ▇▇y for the prorated amount (as costs of the Proration Time) of Survey. Buyer shall pay any and all Rental previously paid to or collected by Seller and attributable taxes related to any period from and after change in use of the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyProperty.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Prorations. (a) Seller Rents and Purchaser agree to adjustany additional charges and expenses payable by Tenants under Leases; real property taxes and assessments; water, sewer and utility charges; amounts payable under any Service Contracts (other than Terminated Contracts); annual permits and/or inspection fees (calculated on the basis of the period covered); and any other income or expenses of the operation and maintenance of the Property shall all be prorated as of 11:59 p.m. on the day date immediately preceding the Closing Date (i.e., Purchaser is entitled to the "PRORATION TIME"income and responsible for the expenses of the day of Closing), on the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, basis of a 365-day year and otherwise in accordance with this Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required 10.5. Seller shall deliver draft prorations to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than Purchaser at least five (5) days Business Days before Closing Date.
(b) Purchaser shall receive a credit at Closing for all rents, including estimated payments for operating expenses and real estate taxes, collected by Seller prior to the Closing Date, and a per diem adjustment allocable to the period after Closing. No credit shall be made given the Seller for the days between the meter reading date accrued and the unpaid rent or any other non-current sums due from tenants except as provided in this Section 10.5(b). All rent or other sums collected or received by Seller after Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon promptly remitted to Purchaser to be applied and distributed in accordance with this Section 10.5(b). All rent received by Purchaser after Closing shall be applied first to current rentals and then to delinquent rentals in the basis inverse order of maturity. Purchaser shall use reasonable efforts to collect rents and other sums owing to Seller in the usual course of Purchaser’s operation of the tax rate for Property, provided, however, that Purchaser shall not be required to pursue or institute any action to evict any tenant or any other collection proceedings to collect delinquent rentals. Seller shall have no right to contact Tenants or collect any such rents and other sums from Tenants after Closing and Seller shall have no right to cause any such Tenant to be evicted or to exercise any other landlord remedy against such Tenant after Closing. In the preceding year applied event Seller receives rents from Tenants applicable to the latest assessed valuation. If, subsequent to periods after the Closing Date, real estate taxes (by reason Seller shall immediately forward the full amount of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined such rents to Purchaser to be higher or lower than those applied by Purchaser in accordance with this Section 10.5(b).
(c) At Closing, (i) Seller shall credit Purchaser with the amount of any cash security deposits actually held by Seller pursuant to the Leases (to the extent such security deposits are not applied against delinquent rents in accordance with the Leases). Any taxes that are apportioned, a new computation payable in the year in which the Closing occurs (“Current Tax Year”) shall be made, prorated between Purchaser and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred based upon the number of days in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser Current Tax Year prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, which shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit allocated to Seller) or by Seller and the number of days in the Current Tax Year on and after the Closing Date (which shall be allocated to Purchaser Purchaser). Fees and charges under the Service Contracts (if other than the prorations result Terminated Contracts) in respect of the most recent billing period which includes the Closing Date (“Current Billing Period”) shall be prorated on a net credit per diem basis based upon the number of days in the Current Billing Period prior to the Closing Date (which shall be allocated to Seller) and the number of days in the Current Billing Period on and after the Closing Date (which shall be allocated to Purchaser) and assuming that all fees and charges are incurred uniformly during the Current Billing Period. Calculations hereunder shall be based upon the most recent statement rendered to Seller by increasing the applicable service provider and, after an actual statement covering the Current Billing Period is received, a copy shall be delivered to Purchaser or reducing Seller, as applicable, and the cash apportionment of such charges hereunder shall be recomputed if necessary.
(d) Seller and Purchaser hereby agree that if any of the aforesaid prorations and credits cannot reasonably be calculated accurately on the Closing Date or in the case of rents or other charges received from Tenants, such amount have not been collected, then the same shall be calculated as soon as reasonably practicable after the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the other party within sixty (60) days thereafter. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the payments received or expenses incurred by such party from Tenants from and after Closing and to the manner in which such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice.
(e) Not more than sixty (60) days after the Closing, Seller and Purchaser shall make a final calculation of the real estate taxes, operating expenses and all other prorations or adjustments for the Property, including any adjustments for rent or escalation payments payable under the Leases in connection therewith. If such calculation discloses that Seller has collected more in estimated payments from Tenants for rents, operating expenses and taxes than it is entitled to retain after the final reconciliations are completed, Seller shall pay such excess to Purchaser for refund to the tenants, and if Seller has collected less in estimated payments than it is entitled to receive after the final reconciliations are completed, Purchaser shall pay such amounts to Seller when and as collected from the tenants. No insurance policies of the Seller are to be delivered by Purchaser in payment assigned or otherwise transferred to the Purchaser, and no apportionment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will premiums therefor shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providersmade. The provisions of this Section 10.4(a) will 10.5 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Prorations. (a) Seller For the purpose of this Section 7.5, all references to Transferor shall mean collectively Transferor and Purchaser agree to adjusteach of the Record Title Holders.
7.5.1 Rentals, revenues, and other income, if any, from the Property, taxes, assessments, improvement bonds, service or other contract fees, utility costs, and other expenses affecting the Property shall be prorated between Transferee and Transferor as of 11:59 p.m. the Closing Date; provided, however, that Transferor shall receive a credit at the Closing in an amount equal to the rentals that are delinquent as of the Closing Date, but only to the extent that such delinquent rentals are due and owing from Tenants occupying a portion of the Property on the day preceding Closing Date; and provided further, that Transferee shall be entitled to any and all payments subsequently received in satisfaction of such delinquent rentals, notwithstanding the fact that such rentals are attributable to a period prior to Closing. For purposes of calculating prorations, Transferee shall be deemed to be title holder of the Property, and therefore entitled to the income and responsible for the expenses, after 12:01 a.m. on the Closing Date. After the Closing, Transferor shall have no right to proceed in any manner or make any claim against Tenants for rents that were delinquent as of the Closing Date, except to the extent that any such person no longer occupies any portion of the Property. All non-delinquent real estate taxes or assessments on the Property shall be prorated based on the actual current tax ▇▇▇▇, but if such tax ▇▇▇▇ has not yet been received by Transferor by the Closing Date (or if supplemental taxes are assessed after the "PRORATION TIME")Closing for the period prior to the Closing, the following (collectivelyparties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Transferor shall have borne all real property taxes, including all supplemental taxes, allocable to the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days period prior to the Closing Dateand Transferee shall bear all real property taxes, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixedincluding all supplemental taxes, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating allocable to the period from and after the Proration TimeClosing. The estimated Closing prorations shall be set forth on a preliminary closing statement If any expenses attributable to be prepared by Seller the Property and submitted allocable to Purchaser the period prior to the Closing Date (are discovered or billed after the "CLOSING STATEMENT"). The Closing StatementClosing, once agreed upon, the parties shall be signed by Purchaser and Seller. The proration shall be paid at make any necessary adjustment after the Closing by Purchaser cash payment to Seller (if the prorations result in a net credit party entitled thereto so that Transferor shall have borne all expenses allocable to Seller) or by Seller the period prior to Purchaser (if the prorations result in a net credit Closing and Transferee shall bear all expenses allocable to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at period from and after the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will 7.5 shall survive the Closing for twelve (12) monthsClosing.
7.5.2 Fifteen (b15) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid Business Days prior to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause Escrow Agent shall deliver to be paid or turned over each of the parties for their review and approval a preliminary closing statement (the "PRELIMINARY CLOSING STATEMENT") setting forth (i) the proration amounts allocable to Purchaser all Rental, if any, received by Seller after Closing and attributable each of the parties pursuant to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertythis Section
Appears in 1 contract
Sources: Acquisition and Contribution Agreement (Apartment Investment & Management Co)
Prorations. 7.1 Real property taxes shall be prorated as of Closing based upon a three hundred sixty-five (a365) day year. At Closing, Purchaser shall be given a credit for all such taxes and assessments which occur prior to Closing but which are not yet due. All payments and installments due through the Closing Date on bonds, special taxes, or assessments shall be paid by Seller.
7.2 All rents and charges due under leases of the Property shall be prorated as of Closing based upon figures supplied to the Escrow Holder by Seller and reasonably approved by Purchaser. If, at Closing, there are any past due rents or charges owed by tenants with respect to periods prior thereto, Purchaser shall not pay to Seller, in addition to the Purchase Price, the amount of such delinquencies; but Purchaser shall thereafter account to Seller for any sums received from such tenants. If Seller receives any prepaid rents or other charges from tenants applicable to periods after Closing, then Purchaser shall be credited through escrow with such rents and charges or, if received after Closing, such amounts shall be paid promptly to Purchaser.
7.3 Purchaser shall be credited through escrow with the amount of any refundable or nonrefundable tenant security deposits and any other refundable or nonrefundable tenant deposits or fees previously received by Seller or on behalf of Seller that have not been, as of Closing, expended or applied to tenant obligations pursuant to the leases, including, without limitation, cleaning deposits. "Credit check" fees shall not be considered to be a tenant deposit or fee.
7.4 Water, electricity, gas, and other utility payments or charges shall not be adjusted through escrow if readings can be made at Closing by the utility companies. Purchaser agrees to open accounts with the respective utilities and to cooperate with Seller in requesting readings on Closing. In the event that appropriate readings cannot possibly be obtained as of Closing, then adjustments shall be made by Purchaser and Seller through escrow on the basis of estimates from the latest bills available.
7.5 All other expense and income associated with the Property shall be adjusted through escrow, based upon figures supplied by Seller and reasonably approved by Purchaser. Seller and Purchaser agree shall each provide preliminary figures to adjust, as of 11:59 p.m. on the day preceding the Closing Date other no later than five (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i5) Rentals, in accordance with Section 10.4(b) belowdays prior to Closing.
(ii) Cash Security Deposits 7.6 Seller shall assume and any prepaid rentspay all debts, together with interest required charges, claims, damages, and liabilities attributable to be paid thereonleases or the operation of the Property accruing and/or arising prior to Closing and shall hold Purchaser harmless therefrom and indemnify and defend against same, except liabilities expressly assumed in writing by Purchaser, including, without limitation, obligations of landlord under the tenant leases.
(iii) Utility charges payable 7.7 Purchaser shall assume and pay all debts, charges, claims, damages, and liabilities attributable to leases or the operation of the Property accruing and/or arising after Closing and shall hold Seller harmless therefrom and indemnify and defend against same, except liabilities expressly retained in writing by Seller, including, without limitation, electricityobligations of landlord under the tenant leases.
7.8 Within ninety (90) days after Closing, water charges Purchaser and sewer Seller shall reconcile the actual amount of revenues or liabilities upon receipt or payment thereof, to the extent those items were prorated or credited at Closing based upon estimates.
7.9 To the extent in Seller's possession, Seller shall furnish to Purchaser with the documents identified on Exhibit "B" and in accordance with Section 5 above, a certified listing of all rental deposits and move-in fees of whatever nature, including redecoration, cleaning, and processing charges. If there are meters on the Real PropertyAll such deposits, fees, and move-in charges shall be transferred to Purchaser at Closing. Prior to Closing, Seller will cause readings shall deliver to Purchaser the original of all said meters to be performed not more than five (5) days prior to the Closing Date, each written lease and other rental agreement and a per diem adjustment shall be made for written description of each oral lease or rental agreement which affects the days between real estate or improvements, including all amendments and modifications thereof and options to renew or extend the meter reading date and the Closing Date based on the most recent meter readingterm thereof.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date 7.10 Seller shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all or personal property, transfer, excise, or sales taxes or any similar taxes due as a result of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all sale of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsProperty.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller 7.11 Mortgage and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentalother reserves, if any, received by shall be assigned to Purchaser at Closing. Purchaser shall not reimburse Seller after Closing and attributable for such reserves assigned to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyPurchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Maxus Realty Trust Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”): real estate and personal property taxes and assessments for the year in which Closing occurs, periodic fees or assessments under declarations, reciprocal easement agreements or similar agreements to which the Property is subject, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with amounts payable or paid under any Service Contracts assumed by Purchaser, collected Rentals (subject to the terms of Section 10.4(b) below.
(ii) Cash Security Deposits accrued interest under the Mortgage Loan and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges operating expenses payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters the owner of the Property (on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. Ifa 365 day year, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closingactual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld, delayed or conditioned) at least two (2) Business Days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event (that is, as to any utility account, if such a final billing as of the Closing Time is then available) no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providersproviders (and if so requested in writing by Purchaser, Seller will provide reasonable and good faith assistance to Purchaser in establishing new utility accounts, at no cost or liability to Seller). A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before the later of twenty (20) days after Closing and March 15, 2015 (the "Final Reconciliation Date"); provided that such reconciliation, as it relates to real estate taxes, shall be made within thirty (30) days following the issuance of the tax bills for each Real Property. The provisions of this Section 10.4(a10.4 (excluding subsection (e) which is governed by Section 3.2 above), will survive the Closing until the Final Reconciliation Date (and such period reasonably necessary thereafter for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause payment owing under this sentence to be paid made), and in the event any items subject to proration hereunder are discovered on or turned over before the Final Reconciliation Date to Purchaser all Rentalbe in error so as to result in a monetary adjustment of greater than $500, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified shall be promptly prorated by the parties in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyaccordance with the terms of this Section 10.4.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. All real property taxes, personal property ---------- taxes, ad valorem obligations and similar Taxes imposed on a ---------- periodic basis, in each case levied with respect to the Rooftop Assets, other than conveyance taxes provided for in Section 2.5, for a taxable period which includes (abut does not end on) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMSApportioned Obligations"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days apportioned between the meter reading date Seller and Purchaser as of the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment number of real estate taxes shall be upon the basis days of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the taxable period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser occurring prior to the Closing Date (the "CLOSING STATEMENTPre-Closing Tax Period") and the number of days of such taxable period occurring on or after the Closing Date (the "Post-Closing Tax Period"). The Closing Statement, once agreed upon, Seller shall be signed by Purchaser and Sellerliable for the proportionate amount of such Taxes that is attributable to the Pre-Closing Tax Period. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known As soon as of practical after the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and PurchaserPurchaser shall present a statement for reimbursement for such Taxes with respect to which each is entitled to reimbursement under this Section 15.4(a), together with such supporting evidence as is reasonably necessary to calculate the proration amount. No prorations will The proration amount shall be made in relation paid by the party owing it to insurance premiumsthe other within ten (10) days after delivery of such statement. Thereafter, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇Seller shall notify Purchaser upon receipt of any ▇▇▇▇ for utilities will be such Taxes relating to the Rooftop Assets, part or all of which are attributable to the Post- Closing Tax Period, and shall promptly deliver such ▇▇▇▇ to Purchaser who shall pay the same to the appropriate Taxing authority, provided that if such ▇▇▇▇ covers the Pre-Closing Tax Period, Seller shall also remit to Purchaser prior to the due date of assessment payment the proportionate amount of such ▇▇▇▇ that is attributable to the Pre-Closing Tax Period. In the event that either Seller or Purchaser shall thereafter make a payment for which it is entitled to reimbursement under this Section 15.4(a), the other party shall make such reimbursement promptly but in no event later than thirty (30) days after the presentation of a statement setting forth the amount of reimbursement to which the presenting party is entitled along with such supporting evidence as is reasonably necessary to calculate the amount of reimbursement. Any payment required under this Section and not made if possible as within ten (10) days of delivery of the Closing Date, in which event no proration will be made statement shall bear interest at the Closing with respect rate per annum determined, from time to utility bills. Seller will be entitled to all deposits presently in effect with time, under the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a6621(a)(2) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include Code for each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyday until paid.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pinnacle Holdings Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by SellerRents, including, without limitation, electricitypercentage rents, water if any, and any additional charges and expenses payable under tenant leases, all as and when actually collected (whether such collection occurs prior to, on or after the Closing Date); real property taxes and assessments; water, sewer and utility charges; amounts payable under any service contracts; annual permits and/or inspection fees (calculated on the basis of the period covered); and any other expenses of the operation and maintenance of the Property (including, without limitation, expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the unamortized portion thereof), shall all be prorated as of 12:01 a.m. on the date the Deeds are recorded on the basis of a 365-day year. Seller shall receive a credit at Closing for the tenant improvements and leasing commissions described in Section 7.2. Any sums collected by Buyer from tenants after the Closing shall be promptly paid to current rents and then to Seller to the extent of any remaining rents and other sums which were delinquent at Closing. Buyer shall use reasonable efforts to collect such delinquent rents but shall have no obligation to commence a legal proceeding to collect such sums. If there are meters on Buyer has not been able to collect any delinquent rents within ninety (90) days after the Real PropertyClosing, Seller will cause readings may bring legal actions to collect such rents, provided Seller shall have no right to terminate any tenant's lease. The amount of all said meters any security deposits under tenant leases shall be credited against the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to be performed not more than five (5) days the Property. Seller shall use reasonable efforts to obtain a utility reading immediately prior to the Closing Date, and a per diem adjustment . Buyer shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined cause all utilities to be higher or lower than those that are apportioned, a new computation shall be made, transferred into Buyer's name and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending account at the time of Closing. Seller will be charged and credited for the amounts of all Buyer hereby agree that if any of the Proration Items relating to the period up to the Proration Time, aforesaid prorations and Purchaser will credits cannot be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth calculated accurately on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, then the prorations will same shall be made at calculated as soon as reasonably practicable after the Closing Date and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay said sum to the basis other party.
(b) For the properties located in Arizona, Seller shall pay for the premium for a standard coverage title policy. Buyer shall pay for (i) the additional premium for extended coverage and (ii) the cost of all endorsements. The escrow fees and recording costs shall be equally borne by both Buyer and Seller. For the property located in New Mexico, Seller shall pay for the title insurance policy. Buyer shall pay for (i) the cost of all endorsements and the costs of deleting the standard preprinted exceptions, (ii) all recording costs and (iii) the environmental audit and any other inspections. The escrow fees shall be equally borne by both Buyer and Seller. For the property located in Texas, Seller shall pay for (i) the title insurance premium, and (ii) the cost of recording the deed. Buyer shall pay for the cost of all endorsements. The escrow fees shall be equally borne by both Buyer and Seller. For the properties located in Colorado, Buyer shall pay for (i) all recording costs, (ii) the documentary fees and (iii) the costs of all endorsements and extended title coverage. Seller shall pay for the premium for basic title coverage. The escrow fees shall be equally borne by both Buyer and Seller. All other costs associated with the closing of the best evidence then available; thereafter, when actual figures are received, re-prorations will transaction contemplated herein shall be made on paid in accordance with the basis local custom of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, county in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. Property is located.
(c) The provisions of this Section 10.4(a) will 8.5 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Agreement of Purchase and Sale (American Industrial Properties Reit Inc)
Prorations. (a) Seller At the Closing, all Taxes related to the Owned Real Property (and Purchaser agree the Leased Real Property to adjustthe extent such Taxes are the responsibility of the tenant under the relevant Lease) (“Real Estate Taxes”) shall be pro rated as follows: (i) with respect to Real Property located in Wisconsin, on a calendar year basis, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
Date; and (ii) Cash Security Deposits with respect to Real Property located in Iowa, (A) Seller shall be responsible for the Real Estate Taxes billed in (or around) September 2009 and any prepaid rentsall prior Tax bills, together with interest required to and (B) the Real Estate Taxes billed in (or around) March 2010 shall be paid thereon.prorated and adjusted between the parties, based upon their respective ownership during the first six (6) months of 2009; and
(iiib) Utility charges payable by SellerSeller shall be responsible for all special assessment installments related to the Owned Real Property (and the Leased Real Property to the extent such special assessment installments are the responsibility of the tenant under the relevant Lease), including, without limitation, electricity, water charges and sewer charges. If there which are meters billed (even if not yet due) on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days or prior to the Closing Date, and a per diem adjustment Buyer shall be made for pay all special assessment installments related to the days between the meter reading date Owned Real Property (and the Leased Real Property to the extent such special assessment installments are the responsibility of the tenant under the relevant Lease) first billed after the Closing Date based on the most recent meter readingDate.
(ivc) Amounts payable Personal property Taxes allocable to the personal property to be purchased under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts this Agreement which Purchaser has elected not are billed or are to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes be billed in 2009 shall be upon prorated and adjusted between the basis of the tax rate for the preceding year applied to the latest assessed valuation. Ifparties, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statementcalendar year basis, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date.
(d) All rent payments, common area maintenance (CAM) charges, utility bills and other similar charges related to the prorations will Acquired Real Property shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible prorated as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(be) Purchaser will receive a credit on All payroll Taxes and other similar Liabilities related to the Closing Statement for Representatives of the Company Group shall also be prorated amount (as of the Proration TimeClosing.
(f) of all Rental previously paid to or collected by Seller and attributable With respect to any period from and after the Proration Time. After items to be prorated, including, without limitation, Taxes, that have not been billed as of the Closing, Seller will cause agreed upon estimates shall be used in prorations, and such estimates shall be deemed to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to conclusive.
(g) Notwithstanding any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentalsother provisions hereof, all administrative chargesamounts that are the responsibility of, utility chargesor otherwise allocated to, tenant Seller under this Section 2.13 shall reduce the Purchase Price at Closing either directly or real propertyas a reduction in the calculation of the Net Equity Amount.
Appears in 1 contract
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits and, if applicable under the laws of the State of North Carolina, interest thereon (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes, operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereaftermost recent ascertainable data. In addition, when actual figures are receivedsubject to the provisions of Paragraph 25 below, re-prorations will be made on Purchaser shall give Seller a credit at closing for all escrows, reserves and holdbacks held by the basis of lender under the actual figuresLoan Documents, which escrows, reserves and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not holdbacks shall be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities All prorations will be made if possible final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the Closing Date by any tenant of the Property who is indebted under a lease for basic rent for any period prior to and including the Closing Date, after the payment to Purchaser of all current basic rent, shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in which event no proration will be made at full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
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Prorations. (a) Seller and Purchaser agree to adjust, The following prorations shall be made as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters occurs on the Real Property, Seller will cause readings basis of all said meters to be performed not more than five a 365- day year. At least two (52) business days prior to the Closing Date, Escrow Holder shall deliver to Seller and Buyer a per diem adjustment tentative proration schedule setting forth a preliminary determination.
5.2.1 Rentals, prepaid rentals and prepaid payments (and all accrued interest thereon, if any) (collectively, "Rent") shall be made prorated on the basis that Buyer shall receive a credit for the days between the meter reading date and all Rent which Seller has actually received before the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating allocable to the period up to after the Proration Time, Closing and Purchaser will be charged and credited for all security deposits held by Seller. Buyer shall not receive a credit for any Rent Seller has not received as of the Proration Items relating Closing which is allocable to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If Buyer shall collect any such Rent after the actual amounts of Closing, Buyer shall promptly pay the Proration Items are not known same to Seller (provided that all rent collected by Buyer after Closing shall be first applied to unpaid rent accruing after the Closing Date).
5.2.2 Real estate taxes and assessments shall be prorated as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent tax statement for the Property.
5.2.3 Any adjustments or prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible finally determined or agreed upon as of the Closing Date shall be paid by Buyer to Seller, or by Seller to Buyer, as the case may be, from time to time in cash as soon as practicable following the receipt or determination of the information necessary to make the adjustments after the Closing Date.
5.2.4 Without limiting the generality of Section 5.2.3, after the adjustments with tenants under the Leases at the end of the calendar year in which event no proration will be made at the Closing occurs (or other applicable period) for taxes, assessments, maintenance charges and operating expenses (collectively, "CAM Charges"), Buyer shall prepare and present to Seller a calculation of the re-proration of taxes, assessments, CAM Charges and those operating expenses to which the CAM Charges relate, based on the actual amount of such items charged to or received by the parties for the year or other applicable fiscal period. The parties shall make the appropriate adjusting payment between them within thirty (30) days after presentment to Seller of Buyer's calculation. In addition, Seller shall provide Buyer with respect a credit for any unpaid tenant improvement expenses that are the landlord's obligation under Leases (other than New Documents and other than the $38,200 tenant improvement expense under the Lease with the University of Phoenix), and a credit for any free rent granted to utility billstenants under Leases other than New Documents (other than the one month of free rent granted to the University of Phoenix for the month of March 2000). Seller will be entitled represents to all deposits presently in effect Buyer that Seller shall not dissolve or otherwise cease conducting business within one year after Closing and shall maintain sufficient assets to enable it to reasonably comply with the utility providers, its obligations under this paragraph and Purchaser will be obligated to make satisfy its own arrangements for any deposits with the utility providers. The provisions other indemnification obligations under this Agreement.
5.2.5 For a period of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on months following the Closing Statement for Date, Buyer and Buyer's successors and assigns shall make available to Seller, and Seller shall make available to Buyer and Buyer's successors and assigns, and their respective employees, agents and representatives, all books and records maintained with respect to the prorated amount (as Property which relate to any of the Proration Time) of all Rental previously paid items to be prorated or collected by Seller and attributable to any period from and after the Proration Time. After allocated under this Agreement in connection with the Closing, Seller will cause to which books and records shall be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing made available for inspection and attributable to any period from copying upon reasonable notice during ordinary business hours. Any such inspection shall be at reasonable intervals and after at the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenantinspecting party's proration share of building operation sole cost and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyexpense.
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Prorations. All revenues, income, receivables, costs, expenses and payables of the Property shall be apportioned equitably between the parties as of Closing on the basis of the actual number of days in a particular month, and with respect to the items enumerated below where a particular manner of apportion- ment is provided, then apportionment of such item shall be made in such manner. The obligation to make apportionments shall survive Closing. Without limitation, the following items shall be so apportioned:
(ai) Seller Monthly rents and Purchaser agree to adjustpercentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as of 11:59 p.m. on and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the day preceding collection thereof in good faith after the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest but Purchaser shall not be required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer chargeslitigate or declare a default in any Tenant Lease). If there are meters To the extent Purchaser receives amounts on the Real Property, Seller will cause readings account of all said meters to be performed not more than five (5) days prior to Tenant Leases on or after the Closing Date, and a per diem adjustment such payments shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which applied first toward then current rent owed to Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with the applicable Tenant Lease for which such payments are received, and any real estate tax appeals that are pending at excess monies received shall be applied toward the time payment of Closingany delinquent rents, with Seller's share thereof being promptly delivered to Seller. Purchaser may not waive any delinquent rents nor modify a Tenant Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive its share of charges or amounts without first obtaining Seller's written consent. Seller will hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be charged require to litigate or declare a default in any Lease). With respect to delinquent rents and credited for the any other amounts or other rights of all any kind respecting tenants who are no longer tenants of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Property as of the Closing Date, Seller shall retain all rights relating thereto.
(ii) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the prorations will earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Seller and Purchaser if current tax rates differ from the latest previous tax rates as soon as the same are known. Seller agrees that to the extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, the Seller or the Purchaser at any time subsequent to Closing but with reference to any period prior thereto during Seller's ownership thereof, Seller shall promptly pay to Purchaser an amount equal to such additional assessments or levies. Similarly, if tax refunds become payable for periods during Seller's ownership of the Property, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Seller) shall be promptly paid over to Seller. In the event that any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installment due after the Closing Date). In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made at or lease entered into on or after the Closing Date.
(iii) Transferable annual permits, licenses, and/or inspection fees, if any, on the basis of the best evidence then available; thereafterduration of the same;
(iv) Security Deposits, when actual figures are receivedplus accrued interest, re-prorations will if any, payable thereon to tenants, and any other deposits and prepaid rent, shall be made credited (or assigned) to Purchaser;
(v) Utility charges levied against Seller or the Property, and Purchaser shall transfer all such utility services to its name and account immediately upon Closing;
(vi) Service Contracts on the basis of the actual figures, charge or premium for the period involved;
(vii) Tenant improvements and a final cash settlement will be made between Seller leasing commissions in accordance with Paragraphs 7(a) and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months7(b).
(bviii) Purchaser will receive a credit on All other operating expenses incurred in the Closing Statement for the prorated amount (as management and operation of the Proration Time) Property. No insurance policies shall be assigned hereunder, and accordingly there shall be no proration of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyinsurance premiums.
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Prorations. (a) 5.4.1 The following shall be prorated between Seller and Purchaser agree to adjust, as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (on the "PRORATION TIME"basis of the actual number of days elapsed over the applicable period regardless when payable):
(a) All real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges if, as and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date) to Purchaser on the Closing Date. As to any tenant security deposits held in the form of letters of credit or other financial instruments (the “Non-Cash Security Deposits”), Seller shall (i) deliver to Purchaser at Closing such original Non-Cash Security Deposits, and (ii) execute and deliver at Closing such other instruments as the issuer of such Non-Cash Security Deposits shall reasonably require in order to cause the named beneficiary under such Non-Cash Security Deposits to be changed to Purchaser; provided that such instruments do not impose any liability on Seller. Purchaser will not receive a credit against the Purchase Price for the Non-Cash Security Deposits. Rents which are delinquent as of the Closing Date shall not be prorated on the Closing Date. Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent Purchaser receives rents on or after the Closing Date, such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents that shall then be due and payable to Purchaser, and third to any delinquent rents owed to Seller, with Seller’s share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser. Purchaser may not waive any delinquent rents nor modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent, which consent may be given or withheld in Seller’s sole and absolute discretion. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant; provided, however, that Seller shall not be entitled to exercise such right until the expiration of the six (6) month period following the Closing. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall ▇▇▇▇ and attempt to collect such delinquent rent in the ordinary course of business, but shall not be obligated to engage a collection agency or take legal action to collect any delinquencies. With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Closing Date, Seller shall retain all rights relating thereto. Any rents received by Seller applicable to the period after the Closing shall be promptly remitted to Purchaser.
(c) If any tenant of the Property is obligated to pay percentage rent based upon the calendar year or lease year in which the Closing Date occurs (the “Percentage Rent Year”), Purchaser shall, within thirty (30) days after receipt of such payment with respect to the Percentage Rent Year, remit to Seller that portion which is equal to the number of days which elapsed between the commencement date of the Percentage Rent Year for each such tenant and the Closing Date, divided by the total number of days in such Percentage Rent Year. If Seller has received payments of percentage rent based on any Percentage Rent Year in which the date of Closing occurs, in excess of Seller’s share as calculated as set forth above in this Section 5.4.1(c), it shall promptly pay such excess to Purchaser. In the event that the Leases require the reconciliation of additional rent “pass-throughs” to the landlord for common area maintenance charges, real estate taxes or other operating expenses (collectively, the "PRORATION ITEMS"):
(i) Rentals“Expenses”), Purchaser shall perform all of the obligations of the landlord under the Leases with respect to such reconciliations for the year of Closing as and when required by the terms of the Leases and provide Seller with the results of such reconciliations no later March 31st of the calendar year succeeding the Closing Date. If such results reflect the underpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall ▇▇▇▇ the appropriate amounts to such tenants in accordance with the terms of their leases and remit to Seller its prorata share of the amount collected from the tenants within thirty (30) days of Purchaser’s collection of the same. If such results reflect the overpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall deliver to Seller an invoice from Purchaser together with evidence reasonably satisfactory to Seller indicating that such sums are due to such tenants. Seller shall pay Purchaser Seller’s prorata share of the amounts due to such tenants within thirty (30) days of Purchaser’s demand, provided that Seller shall have no obligation to reimburse Purchaser for any sums not invoiced on or before July 1st of the calendar year succeeding the Closing Date. Notwithstanding the foregoing, if, as of the Closing, Seller has received additional rent payments in excess of the amount that the tenants would be required to pay, based on the actual Expenses as of the Closing, Purchaser shall receive a credit in the amount of such excess. The provisions of this Section 10.4(b5.4.2(c) belowshall survive the Closing.
(iid) Cash Security Deposits All operating expenses customarily apportioned between sellers and any prepaid rents, together with interest required purchasers of real estate properties similar to be paid thereonthe Property and located in the same geographic area as the Property.
(iiie) Utility charges payable by SellerCharges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the Assignment and Assumption of Contracts.
(f) Any prepaid items, including, without limitation, electricityfees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees.
(g) Utilities, water charges including, without limitation, telephone, steam, electricity and sewer charges. If there are meters gas, on the Real 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.
(h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assignable and are assigned to Purchaser at the Closing, which shall be credited in their entirety to Seller.
(i) Personal property taxes, if any, on the basis of the fiscal year for which assessed.
(j) Permitted administrative charges, if any, on those tenants’ security deposits transferred by Seller pursuant to the Assignment and Assumption of Leases.
(k) Taxes payable by Seller relating to operations of the Property, including, without limitation, business and occupancy taxes and sales taxes, if any.
(l) Such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the same geographic area as the Property subject to Section 7.2.3(a) hereof.
(m) Notwithstanding anything to the contrary contained herein, Seller will cause readings shall remain responsible for refunding to the tenants of all said meters the Property (including any former tenants of the Property), such tenants’ prorata shares of the real estate tax refund received by Seller and arising out of the tax certiorari proceedings for calendar years 2003 through 2006. This provision shall survive the Closing.
(a) Intentionally deleted.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be performed not more than five apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that (5i) days prior with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one hundred eightieth (180th) day after the Closing Date and (ii) with respect to the items required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one (1) year anniversary of the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before a real estate or personal property tax rate or assessment is fixed for the tax rate is fixedyear in which the Closing occurs, the apportionment of real estate taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. If, subsequent to Promptly after the Closing Date, real estate taxes (by reason of change in either assessment or new tax rate or for any other reason) for assessment is fixed, the Real Property and Improvements should be determined to be higher apportionment of taxes or lower than those that are apportioned, a new computation assessments shall be made, recomputed and Seller agrees to pay Purchaser any increase shown by discrepancy resulting from such recomputation and vice versa. Purchaser shallany errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing.
5.4.3 Items to be prorated at Closing, assume all the Closing shall include a credit to Seller for costs and expenses incurred or to be incurred by Seller in connection with any real estate tax appeals that new Leases or modifications to any existing Leases entered into after the date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of this Agreement, but only to the extent such costs and expenses are pending approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) or disclosed to Purchaser in writing or in the proposed lease at least three (3) Business Days prior to the time of Closingdate hereof. Seller will shall be charged responsible for all brokerage and credited leasing commissions and tenant improvement costs for the amounts initial term of all of the Proration Items relating Leases entered into prior to the period up date of this Agreement and for any extension, renewal or expansion of any such Lease exercised prior to the Proration Timedate of this Agreement, provided in all such instances, the term of such Lease, extension, renewal or expansion and Purchaser will be charged and credited for all the regularly scheduled payment of the Proration Items relating rent commences prior to the period date of this Agreement (collectively, “Seller Leasing Costs”). Purchaser shall be responsible for and expressly assumes the obligation to pay all brokerage and leasing commissions, tenant improvement costs and other costs and expenses including attorney’s fees other than the Seller Leasing Costs for any new leases entered into from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement date of this Agreement and any extension, renewal or expansion of any existing Lease exercised or entered into from and after the date of this Agreement including, without limitation amounts owed under the Brokerage Agreements, provided in all such instances, the term of such Lease, extension, or expansion or the regularly scheduled payment of rent commences from and after the date of this Agreement, provided such new leases or extensions or expansions are approved or deemed approved by Purchaser pursuant to be prepared by Seller Section 7.2.3(a) of this Agreement and submitted provided such brokerage and leasing commissions, tenant improvement costs and other costs are disclosed to Purchaser prior in writing, in the applicable lease or other agreement delivered to Purchaser at the time Purchaser approves (or is deemed to have approved) such new leases, or any such Lease extensions, renewals or expansions (collectively, “Purchaser Leasing Costs”). If at the Closing Date (the "CLOSING STATEMENT"). The Closing StatementSeller has paid any Purchaser Leasing Costs, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net at the Closing shall include an appropriate credit to Seller) or by . If at the Closing there remain unpaid Seller Leasing Costs, Purchaser shall expressly assume the responsibility to Purchaser (if pay such unpaid Seller Leasing Costs, and the prorations result in a net at the Closing shall include an appropriate credit to Purchaser.
5.4.4 As provided in Section 11.1.2, Seller shall be responsible for paying all fees, costs or commissions owing to the Broker (as defined in Section 11.1.2) with regard to the transactions contemplated by increasing or reducing this Agreement.
5.4.5 At Closing, the cash to Purchaser shall be delivered by Purchaser in payment of receive a credit against the Purchase Price at in the Closing. If the actual amounts amount of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. $2,600,000.
5.4.6 The provisions of this Section 10.4(a) will 5.4 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIMEProration Time"), the following (collectively, the "PRORATION ITEMSProration Items"):
(i) RentalsRents, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits In the event that there shall be any expenses attributable to the operation, maintenance or ownership of the Property that are not paid directly by the Tenant under the Lease ("Other Proration Items"), then Seller will be responsible for the amounts thereof relating to the period up to and including the Closing Date, and Purchaser will be responsible for the amounts thereof relating to the period after the Closing Date. Accordingly, to the extent that Seller prepaid for any prepaid rents, together with interest required Other Proration Items that are attributable to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Propertyperiod after the Closing Date, Seller will cause readings of all said meters receive a credit therefor at Closing. Conversely, at Closing, to be performed the extent that Seller has not more than five (5) days yet paid for any Other Proration Items that are attributable to the period on or prior to the Closing Date, then Purchaser shall receive a credit for such Other Proration Items and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes pay such expenses when due, or, if past-due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of within seven (7) days after Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENTClosing Statement"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration prorations shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental (as defined below in this paragraph) previously paid to or collected by Seller and attributable to any period from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTALRental" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses and real estate taxes as provided for under the Lease, to the extent the same exceeds any expense stop specified in such the Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty or office park association dues, and other sums and charges payable by the Tenant under the Lease. Rental is "Delinquent" when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by the Tenant. Seller reserves the right to pursue a collection action against the Tenant for Delinquent Rental; provided, however, in no event may Seller seek to terminate the Lease or Tenant’s occupancy thereunder or threaten to do so. All sums collected by Purchaser from and after Closing from the Tenant will be applied first to amounts due from the Tenant for the month of Closing, then to current amounts due subsequent to Closing, then to amounts owed by the Tenant to Seller. Purchaser and Seller shall promptly remit to the other any sums received by either party that are due to the other pursuant to this Section 10.4(b).
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Griffin Capital Essential Asset REIT II, Inc.)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding Closing Date, and credited against the balance of the cash due at Closing. Assessments payable in installments which are due subsequent to the Closing Date (shall be paid by Purchaser. If the "PRORATION TIME")amount of any of the items to be prorated is not then ascertainable, the following (collectively, adjustments thereof shall be on the "PRORATION ITEMS"):
(i) Rentals, basis of the most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in accordance with Section 10.4(b) Paragraph 12.2 below.
(ii) Cash Security Deposits and 12.2. All basic rent paid following the Closing Date by any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on tenant of the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days Property who is indebted under a lease for basic rent for any period prior to and including the Closing Date shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. All rent payments received from tenants following the Closing Date shall be applied first against such tenant's current rent obligation accruing from and after the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not then applied to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for delinquent rents as provided in the preceding year applied to the latest assessed valuationsentence. If, subsequent to Within 120 days after the Closing Date, real estate taxes (by reason Purchaser shall deliver to Seller a reconciliation statement of change in either assessment or rate or for any other reason) for Post-Closing Receipts through the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and first 90 days after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The and shall deliver to Seller any Post-Closing StatementReceipts, once agreed uponless reasonable collection costs, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by if any, to Purchaser to procure such Post-Closing Receipts owing to Seller (if and not previously delivered to Seller in accordance with the prorations result in a net credit terms hereof. Upon delivery to Seller) or by Seller to Purchaser (if of the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in Post-Closing Receipts reconciliation statement and payment of any Post-Closing Receipts due to Seller from receipts through the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of first 90 days following the Closing Date, Purchaser shall have no further obligation to Seller for payment of any Post-Closing Receipts. Seller retains the prorations will be made right to conduct an audit, at Closing on reasonable times and upon reasonable notice, of Purchaser's books and records to verify the basis accuracy of the best evidence then available; thereafterPost-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, when actual figures are received, rePurchaser shall pay to Seller said additional Post-prorations will be made on Closing Receipts and the basis cost of performing Seller's audit if such additional funds owed to the Seller exceed 25% of the actual figures, and a final cash settlement will be made between Seller and Purchasertotal Post-Closing Receipts previously paid to Seller. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. (a) Seller 5.4.1 The following shall be prorated between the Sellers and Purchaser agree to adjust, as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (on the "PRORATION TIME"basis of the actual number of days elapsed over the applicable period regardless when payable):
(a) All real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Sellers be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges if, as and when received. Sellers shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date) to Purchaser on the Closing Date. As to any tenant security deposits held in the form of letters of credit or other financial instruments (the “Non-Cash Security Deposits”), the applicable Seller shall (i) deliver to Purchaser at Closing such original Non-Cash Security Deposits, and (ii) execute and deliver at Closing such other instruments as the issuer of such Non-Cash Security Deposits shall reasonably require in order to cause the named beneficiary under such Non-Cash Security Deposits to be changed to Purchaser; provided that such instruments do not impose any liability on Sellers. Purchaser will not receive a credit against the Purchase Price for the Non-Cash Security Deposits. Rents which are delinquent as of the Closing Date shall not be prorated on the Closing Date. Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent Purchaser receives rents on or after the Closing Date, such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents that shall then be due and payable to Purchaser, and third to any delinquent rents owed to the applicable Seller, with such Seller’s share thereof being held by Purchaser in trust for such Seller and promptly delivered to such Seller by Purchaser. Purchaser may not waive any delinquent rents nor modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which the applicable Seller is entitled to receive a share of charges or amounts without first obtaining such Seller’s written consent, which consent may be given or withheld in such Seller’s sole and absolute discretion. Sellers hereby reserve the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to a Seller (but shall not be entitled to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant; provided, however, that Sellers shall not be entitled to exercise such right until the expiration of the six (6) month period following the Closing. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Sellers of such right, and such right shall survive the Closing. Purchaser shall ▇▇▇▇ and attempt to collect such delinquent rent in the ordinary course of business, but shall not be obligated to engage a collection agency or take legal action to collect any delinquencies. With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Closing Date, Sellers shall retain all rights relating thereto. Any rents received by Sellers applicable to the period after the Closing shall be promptly remitted to Purchaser.
(c) If any tenant of the Property is obligated to pay percentage rent based upon the calendar year or lease year in which the Closing Date occurs (the “Percentage Rent Year”), Purchaser shall, within thirty (30) days after receipt of such payment with respect to the Percentage Rent Year, remit to the applicable Seller that portion which is equal to the number of days which elapsed between the commencement date of the Percentage Rent Year for each such tenant and the Closing Date, divided by the total number of days in such Percentage Rent Year. If a Seller has received payments of percentage rent based on any Percentage Rent Year in which the date of Closing occurs, in excess of such Seller’s share as calculated as set forth above in this Section 5.4.1(c), it shall promptly pay such excess to Purchaser. In the event that the Leases require the reconciliation of additional rent “pass-throughs” to the landlord for common area maintenance charges, real estate taxes or other operating expenses (collectively, the "PRORATION ITEMS"):
(i) Rentals“Expenses”), Purchaser shall perform all of the obligations of the landlord under the Leases with respect to such reconciliations for the year of Closing as and when required by the terms of the Leases and provide the applicable Seller with the results of such reconciliations no later March 31st of the calendar year succeeding the Closing Date. If such results reflect the underpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall ▇▇▇▇ the appropriate amounts to such tenants in accordance with the terms of their leases and remit to the applicable Seller its prorata share of the amount collected from the tenants within thirty (30) days of Purchaser’s collection of the same. If such results reflect the overpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall deliver to the applicable Seller an invoice from Purchaser together with evidence reasonably satisfactory to such Seller indicating that such sums are due to such tenants. The applicable Seller shall pay Purchaser such Seller’s prorata share of the amounts due to such tenants within thirty (30) days of Purchaser’s demand, provided that such Seller shall have no obligation to reimburse Purchaser for any sums not invoiced on or before July 1st of the calendar year succeeding the Closing Date. Notwithstanding the foregoing, if, as of the Closing, a Seller has received additional rent payments in excess of the amount that the tenants would be required to pay, based on the actual Expenses as of the Closing, Purchaser shall receive a credit in the amount of such excess. The provisions of this Section 10.4(b5.4.2(c) belowshall survive the Closing.
(iid) Cash Security Deposits All operating expenses customarily apportioned between sellers and any prepaid rents, together with interest required purchasers of real estate properties similar to be paid thereonthe Property and located in the same geographic area as the Property.
(iiie) Utility charges payable by SellerCharges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the Assignment and Assumption of Contracts.
(f) Any prepaid items, including, without limitation, electricityfees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees.
(g) Utilities, water charges including, without limitation, telephone, steam, electricity and sewer charges. If there are meters gas, on the Real 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.
(h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assignable and are assigned to Purchaser at the Closing, which shall be credited in their entirety to the applicable Seller.
(i) Personal property taxes, if any, on the basis of the fiscal year for which assessed.
(j) Permitted administrative charges, if any, on those tenants’ security deposits transferred by Sellers pursuant to the Assignment and Assumption of Leases.
(k) Taxes payable by Sellers relating to operations of the Property, Seller will cause readings including, without limitation, business and occupancy taxes and sales taxes, if any.
(l) Such other items as are customarily apportioned between sellers and purchasers of all said meters real properties of a type similar to the Property and located in the same geographic area as the Property.
(a) Intentionally deleted.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be performed not more than five apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that (5i) days prior with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one hundred eightieth (180th) day after the Closing Date and (ii) with respect to the items required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one (1) year anniversary of the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before a real estate or personal property tax rate or assessment is fixed for the tax rate is fixedyear in which the Closing occurs, the apportionment of real estate taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. If, subsequent to Promptly after the Closing Date, real estate taxes (by reason of change in either assessment or new tax rate or for any other reason) for assessment is fixed, the Real Property and Improvements should be determined to be higher apportionment of taxes or lower than those that are apportioned, a new computation assessments shall be made, recomputed and Seller agrees to pay Purchaser any increase shown by discrepancy resulting from such recomputation and vice versa. Purchaser shallany errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing.
5.4.3 Items to be prorated at Closing, assume all the Closing shall include a credit to Sellers for costs and expenses incurred or to be incurred by Sellers in connection with any real estate tax appeals that new Leases or modifications to any existing Leases entered into after the date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of this Agreement, but only to the extent such costs and expenses are pending approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) or disclosed to Purchaser in writing or in the proposed lease at least three (3) Business Days prior to the time expiration of Closingthe Due Diligence Period. Seller will Sellers shall be charged responsible for those leasing costs set forth on Exhibit E and credited all other brokerage and leasing commissions and tenant improvement costs for the amounts initial term of all of the Proration Items relating Leases entered into prior to the period up date of this Agreement and for any extension, renewal or expansion of any such Lease exercised prior to the Proration Timedate of this Agreement, provided in all such instances, the term of such Lease, extension, renewal or expansion and Purchaser will be charged and credited for all the regularly scheduled payment of the Proration Items relating rent commences prior to the period date of this Agreement (collectively, “Seller Leasing Costs”). Purchaser shall be responsible for and expressly assumes the obligation to pay all brokerage and leasing commissions, tenant improvement costs and other costs and expenses including attorney’s fees other than the Seller Leasing Costs for any new leases entered into from and after the Proration Timedate of this Agreement and any extension, renewal or expansion of any existing Lease exercised or entered into from and after the date of this Agreement including, without limitation amounts owed under the Brokerage Agreements, provided in all such instances, the term of such Lease, extension, or expansion or the regularly scheduled payment of rent commences from and after the date of this Agreement, provided such new leases or extensions or expansions are approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) of this Agreement and provided such brokerage and leasing commissions, tenant improvement costs and other costs are disclosed to Purchaser in writing, in the applicable lease or other agreement delivered to Purchaser at the time Purchaser approves (or is deemed to have approved) such new leases, or any such Lease extensions, renewals or expansions (collectively, “Purchaser Leasing Costs”). If at the Closing any Seller has paid any Purchaser Leasing Costs, the prorations at the Closing shall include an appropriate credit to Sellers. If at the Closing there remain unpaid Seller Leasing Costs, Purchaser shall expressly assume the responsibility to pay such unpaid Seller Leasing Costs, and the prorations at the Closing shall include an appropriate credit to Purchaser. The estimated Closing prorations shall be Seller Leasing Costs set forth on a preliminary closing statement Exhibit E include the estimated cost of tenant improvement work to be prepared performed by or on behalf of the landlord pursuant to those certain contracts, each dated December 1, 2011 between One/Two Seller and submitted to Purchaser prior to the Closing Date Pacific Builders Inc. (the "CLOSING STATEMENT"). The Closing Statement“Existing Construction Contracts”) for improvements in and around the respective premises occupied by ▇▇▇▇, once agreed upon▇▇▇▇▇▇▇ and Associates, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateDental Community Management, the prorations will be made at Closing on the basis of the best evidence then available; thereafter▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, when actual figures are received, re-prorations will be made on the basis of the actual figuresFamily Legacy Trust, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the “Current Work”). Buyer acknowledges that Seller is currently negotiating additional contracts (the “Prospective Construction Contracts” and together with the Existing Construction Contracts, collectively, the “Construction Contracts”) for utilities will work to be made if possible performed in and around the respective premises occupied by Goranson, Bain, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.C., LiquidAgents, LLC, and Lifeway Financial Corporation (the “Prospective Work” and together with the Current Work, collectively, the “TI Work”), the estimated cost of which is also reflected in the Seller Leasing Costs set forth on Exhibit E. Notwithstanding anything to the contrary herein (including, without limitation Section 7.2.2) Buyer hereby approves the Prospective Construction Contracts to be entered into by Seller prior to the Closing. If any of the TI Work is not completed prior to the Closing, Buyer shall be entitled to a credit at Closing in the amount of the unpaid remaining TI Work pursuant to this Section 5.4.3, and Purchaser shall assume the applicable Construction Contract(s) as of the Closing Date.
5.4.4 As provided in Section 11.1.2, Sellers shall be responsible for paying all fees, costs or commissions owing to the Broker (as defined in which event no proration will be made at Section 11.1.2) with regard to the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. transactions contemplated by this Agreement.
5.4.5 The provisions of this Section 10.4(a) will 5.4 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Contract of Sale (KBS Real Estate Investment Trust III, Inc.)
Prorations. (a) Seller For purposes of determining the Purchase Price, personal property and Purchaser agree real property Taxes, fees with respect to adjustany Transferable Permits, as rents under any leases of 11:59 p.m. on real or personal property, or other similar expenses, that are not due or assessed until after the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, Effective Time but which are attributable in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and whole or in part to any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days period commencing prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Effective Time, and Purchaser any other amounts that by the terms of this Agreement are to be allocated between the Parties, will be charged and credited for all prorated as of the Proration Items relating Effective Time, with Seller liable to the extent such items relate to any period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figuresEffective Time, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation Buyer liable to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable extent such items relate to any period from and after the Proration Effective Time. After If the Closingactual amounts to be prorated are not known, Seller shall include an itemized estimate in the Closing Adjustment Statement based upon the most recent available rates, assessments, valuations, or other data, and the Parties shall adjust the amounts paid at Closing to reflect such prorations. Any prorations shall be made so as to avoid duplication of any amounts, and will cause be adjusted to properly take into account any amounts thereof used in determining the Purchase Price.
(b) The proration of all items under this Section 3.4 will be recalculated by Buyer within a reasonable period of time following the date upon which the actual amounts become available to Buyer. Buyer will notify Seller of such recalculated amounts, and will provide Seller with all documentation relating to such recalculations, including tax statements and other notices from third parties. The Parties will make such payments to each other as are necessary to reconcile any estimated amounts prorated as of the Effective Time with the final amounts to be paid or turned over prorated. Seller and ▇▇▇▇▇ agree to Purchaser furnish each other with such documents and other records as may be reasonably requested in order to confirm all Rental, if any, received by Seller after Closing and attributable proration calculations made pursuant to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertythis Section 3.4.
Appears in 1 contract
Sources: Asset Purchase Agreement
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”): real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with Section 10.4(bcollected Rentals (subject to the terms of Section10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents), together with interest required to be paid thereon.
(iii) Utility charges expenses under the Permitted Exceptions, expenses under Service Contracts assumed by Purchaser at Closing payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real owner of the Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Dateexpenses related to, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixedpayment obligations included in, the apportionment of real estate taxes shall be upon Outparcel Obligations, and payment rights included in the Outparcel Rights (in each case, on the basis of the tax rate for the preceding year applied to the latest assessed valuation. Ifa 365 day year, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closingactual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) at least two (2) Business Days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made made, if possible possible, as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before December 15, 2021 (herein, the “Final Proration Date”). The provisions of this Section 10.4(a10.4 (excluding subsection (e) which is governed by Section 3.2 above) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on until the Closing Statement for Final Proration Date has occurred, and in the prorated amount (as of the Proration Time) of all Rental previously paid event any items subject to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, hereunder are discovered prior to the extent Final Proration Date, the same exceeds any expense stop specified shall be promptly prorated by the parties in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyaccordance with the terms of this Section 10.4.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (HGR Liquidating Trust)
Prorations. 5.2.1 Rentals (a) Seller including fixed monthly rentals and Purchaser agree to adjustother periodic rentals, as of 11:59 p.m. on additional rentals, operating cost pass- throughs and other sums and charges payable by the day preceding the Closing Date (the "PRORATION TIME"tenants), the following prepaid rentals and prepaid payments (collectively, "Rent") shall, subject to the "PRORATION ITEMS"):
(i) Rentalsfurther provisions hereof, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters prorated on the Real Propertybasis that Buyer shall receive a credit for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing and for all security deposits paid to the landlord under the Leases as referenced in the Leases, less only the amount thereof, if any, Seller will cause readings shall have applied pursuant to one or more Leases (in which event Seller shall provide Buyer with a written explanation of all said meters the application of same). Seller shall not receive a credit for any Rent Seller has not received as of the Closing which is allocable to be performed not more than five (5) days the period prior to the Closing Date, and a per diem adjustment Closing. If Buyer shall be made for the days between the meter reading date and collect any such Rent after the Closing Date based on (Buyer shall exert good faith efforts to collect such Rent), Buyer shall promptly pay the most recent meter readingsame to Seller.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) 5.2.2 Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon prorated as of the Closing on the basis of the tax rate for the preceding year applied most recent assessed valuation of and rates and multiplier applicable to the latest assessed valuation. If, subsequent to Property.
5.2.3 Utilities shall be read at the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property Date and Improvements should be determined to be higher or lower than those that are apportioned, a new computation Seller shall be made, responsible for payment of such utilities. Buyer shall establish new utility accounts and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to shall be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited responsible for all of the Proration Items relating to the period utilities from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared Closing.
5.2.4 Common area and maintenance charges, property taxes, insurance and other operating cost pass-throughs payable by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment tenants of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Project which accrue as of the Closing Date, but which are not then due and payable (collectively, the prorations will "Operating Expenses"), shall not be made at Closing on the basis prorated, except as herein provided. Buyer shall receive and retain any Operating Expenses paid by tenants of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made Project on or after the basis Closing Date and Seller shall receive and retain any Operating Expenses paid by tenants of the actual figuresProject prior to the Closing Date; provided, and a final cash settlement will however, that any monthly or periodic deposits or payments of estimated Operating Expenses with respect to the month in which the Closing occurs received by Seller prior to the Closing Date or by Buyer on or after the Closing Date shall be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible prorated as of the Closing Date, in which event no proration will be made at the . Buyer and Seller shall cooperate within thirty (30) days after Closing to reconcile actual Operating Expenses collected by Seller from Project tenants prior to Closing with actual Operating Expenses paid by Seller with respect to utility bills. such period, so that if there are any rebates owing to Project tenants for the period of Seller's ownership, Seller will shall be charged therefor, and if the Project tenants owe the landlord any additional amounts for Operating Expenses with respect to the period of Seller's ownership, and actually pay such amounts to Buyer (Buyer agrees to exert good faith efforts to collect the same), Seller shall be entitled to all deposits presently receive such amounts from Buyer. Any prorations under this Agreement shall be based upon the actual number of days in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsapplicable period.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Prorations. 13.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits and, if applicable under the laws of the State of Georgia, interest thereon (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes, operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment credited against the balance of the cash due at Closing. If real estate tax bills for the year 1997 are not available, real estate taxes for the year 1997 shall be made for the days between the meter reading date and the Closing Date prorated based on the most recent meter reading.
(iv) Amounts 105% of 1996 taxes. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
13.2. All basic rent paid following the basis Closing Date by any tenant of the actual figures, Property who is indebted under a lease for basic rent for any period prior to and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of including the Closing Date, after the payment to Purchaser of all current basic rent, shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in which event no proration will be made at full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. (a) Seller and Purchaser agree to adjust, as prepare a proration schedule of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than adjustments five (5) business days prior to Closing. For purposes of calculating prorations, Purchaser shall be deemed to be in title to the Property, and therefore entitled to the income therefrom and responsible for the expenses thereof, for the entire day upon which the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearoccurs. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by All such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis number of days of the actual figures, year and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible month that shall have elapsed as of the Closing Date. If post-Closing adjustments are required under this Article 7, the amount of such prorations shall be adjusted in which event cash after Closing, as and when complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use their good faith and diligent efforts to make such adjustments no proration will be made at later than two hundred and seventy (270) days after Closing with respect to taxes and assessments and no later than thirty (30) days after the Closing with respect to utility billsother prorated amounts, or as soon as is reasonably practicable if and to the extent that the required final proration information is not available within such period. Seller Items of income and expense for the period prior to the Closing Date will be entitled to all deposits presently in effect with for the utility providers, account of Seller and Purchaser items of income and expense for the period on and after the Closing Date will be obligated for the account of Purchaser, all as determined by the accrual method of accounting, subject to make its own arrangements for any deposits with the utility providersprovisions hereof. Bills received after Closing that relate to expenses incurred, services performed or other amounts allocable to the period prior to the Closing Date shall be paid by Seller. Any amounts not so paid by Seller may be set off against amounts (if any) otherwise due Seller hereunder. The provisions obligations of the parties pursuant to this Section 10.4(a) will 7.1, including Sections 7.1.1 through 7.1.5, shall survive the Closing for twelve (12) monthsand shall not merge into any documents of conveyance delivered at Closing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Real Estate Contract (Industrial Property Trust Inc.)
Prorations. 12.1. All Rents (a) Seller exclusive of delinquent rents, but including prepaid rents), expenses, taxes, water and sewer rents, or similar charges of fees, are to be adjusted as of midnight of the day of Closing. Real and personal property taxes, general and special, are to be adjusted according to the certificate of taxes issued by the taxing authority, and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowshall assume charges therefor accruing from and after Closing.
(ii) Cash Security Deposits 12.2. All contracts and any prepaid rentsagreements relative to the operation, together with interest required servicing and/or maintenance of the Property to be paid thereon.
assigned to Purchaser or terminated (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on to the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to extent the term extends beyond the Closing Date, and a per diem adjustment ) shall be made for the days adjusted between the meter reading date and parties as of midnight of the Closing Date based on the most recent meter readingday of Closing.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa12.3. Purchaser shallshall have no obligation to collect any past-due rents except that Purchaser shall use commercially reasonable efforts to collect delinquent rents and promptly reimburse Seller for such past-due rents when, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time as and if collected,net of Closingcosts of collection. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period Monies received from and delinquent tenants after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser shall be applied as follows: (1) first, pro rata to Purchaser and Seller for the month the Closing takes place; (2) second, to Purchaser in an amount equal to all rentals due from such tenants accruing after Closing; (3) third, to costs of collection; and (4) fourth, to Seller (if the prorations result in a net credit an amount equal to Seller) or any remaining unpaid rental arrearages owed by such tenants to Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date.
12.4. At Closing, Seller shall deliver to Purchaser, or make appropriate adjustments for, all tenant security deposits and the prorations will be like, together with statutory or contractual interest owed to tenants, together with a detailed statement of the security deposits and all such accrued interest held for the account of each tenant. Purchaser shall receipt for the same and shall indemnify, defend and save Seller harmless from and against any claims relating to Purchaser's application or holding of such deposits and interest, which Seller has delivered or for which an adjustment has been made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period Closing,from and after the Proration TimeClosing. After the ClosingSeller shall indemnify, Seller will cause to be paid or turned over to defend and save Purchaser all Rental, if any, received by Seller after Closing and attributable to any period harmless from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenantagainst any claims relating to Seller's proration share application or holding of building operation such deposits and maintenance costs and expenses as provided for under the Lease, interest prior to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyClosing.
Appears in 1 contract
Prorations. All revenues, income, receiv ables, costs, ex▇▇▇▇▇s and payables of the Property shall be apportioned equitably between the parties as of Closing on the basis of the actual number of days in a particular month, and with respect to the items enumerated below where a particular manner of apportionment is provided, then apportionment of such item shall be made in such manner. The obligation to make apportionments shall survive Closing. Without limitation, the following items shall be so apportioned:
(ai) Seller Monthly rents and Purchaser agree to adjustpercentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as of 11:59 p.m. on and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the day preceding collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Tenant Lease). To the "PRORATION TIME")extent Purchaser receives amounts on account of Tenant Leases on or after the Closing Date, such payments shall be applied (except as to the following (collectivelylease with the County of Los Angeles) first toward then current rent owed to Purchaser in connection with the applicable Tenant Lease for which such payments are received, and any excess monies received shall be applied toward the "PRORATION ITEMS"):
(i) Rentalspayment of any delinquent rents, with Seller's share thereof being promptly delivered to Seller. With respect to the Tenant Lease with the County of Los Angeles, however, first payments collected by Purchaser shall be delivered to Seller until all arrearages and delinquencies have been satisfied. Notwithstanding any of the foregoing, in accordance the event that Purchaser within six (6) months after Closing alters the financial terms of any Tenant Lease of 2,500 square feet or less pursuant to which Seller is owed delinquent rents or charges, then, with Section 10.4(brespect to rents or charges under such Tenant Lease that are first received by Purchaser after the alteration of the financial terms by Purchaser, such payments shall be payable first as follows: (x) below.
first to Seller for the delinquent rents or charges which are attributable to the two (ii2) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days month period just prior to the Closing Date, and a per diem adjustment shall be made (y) second to Purchaser for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts any then outstanding rental obligations which Purchaser has elected not to assume.
(v) Real estate taxes first become due and payable for the calendar year. If on or after the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied and (z) third to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or Seller for any other reason) for the Real Property and Improvements should be determined to be higher remaining delinquent rents or lower than those that charges which are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating attributable to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date Closing. For the purpose of the preceding sentence an eviction or termination of any tenant's occupancy is not an alteration of the financial terms of any Tenant Lease. Purchaser may not waive any delinquent rents nor modify a Tenant Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive its share of charges or amounts without first obtaining Seller's written consent. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (the "CLOSING STATEMENT"but shall not be required to litigate or declare a default in any Lease). The Closing Statement, once agreed upon, shall be signed by Purchaser With respect to delinquent rents and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) any other amounts or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment other rights of any kind respecting tenants who are no longer tenants of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Property as of the Closing Date, Seller shall retain all rights relating thereto.
(ii) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the prorations will earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Seller and Purchaser if current tax rates differ from the latest previous tax rates as soon as the same are known. Seller agrees that to the extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, at any time subsequent to Closing but with reference to any period prior thereto during Seller's ownership thereof, Seller shall promptly pay to Purchaser an amount equal to such additional assessments or levies applicable to such period. Similarly, if tax refunds become payable for periods during Seller's ownership of the Property, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Seller) shall be promptly paid over to Seller. In the event that any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installment due after the Closing Date). In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made at or leases entered into on or after the Closing Date.
(iii) Transferable annual permits, licenses, and/or inspection fees, if any, on the basis of the best evidence then available; thereafterduration of the same;
(iv) Security Deposits, when actual figures are receivedplus accrued interest, re-prorations will if any, payable thereon to tenants, and any other deposits and prepaid rent, shall be made credited (or assigned) to Purchaser;
(v) Utility charges levied against Seller or the Property, and Purchaser shall transfer all such utility services to its name and account immediately upon Closing;
(vi) Service Contracts on the basis of the actual figurescharge or premium for the period involved;
(vii) Tenant improvements costs and leasing commissions for leases, amendments and a final cash settlement will renewals signed after January 10, 1997, shall be made between Seller paid by Purchaser if approved by Purchaser in accordance with Paragraphs 7(a) and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months7(b).
(bviii) Purchaser will receive a credit on All other operating expenses incurred in the Closing Statement for the prorated amount (as management and operation of the Proration Time) Property. No insurance policies shall be assigned hereunder, and accordingly there shall be no proration of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyinsurance premiums.
Appears in 1 contract
Prorations. (a) Seller Sellers and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals“Proration Items”): all non-delinquent real estate, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits personal property and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges ad valorem taxes and sewer charges. If there are meters assessments on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior Property for the year in which Closing occurs as to the Closing Date, Washington Properties and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date on an accrual basis based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other applicable tax year, which is July 1, 2016 through June 30, 2017, rather than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable on a calendar year basis for the calendar year. If California Properties, utility bills (except as hereinafter provided), collected Rentals (subject to the Closing Date shall occur before terms of (b) below) and operating expenses payable by the tax rate is fixed, owners of the apportionment of real estate taxes shall be upon Property (on the basis of the tax rate for the preceding year applied to the latest assessed valuationa 366 day year, actual days elapsed). If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller Sellers will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller Sellers and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) seven (7) days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSellers and delivered to the Title 51 Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller Sellers (if the preliminary prorations result in a net credit to SellerSellers) or by Seller Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, including the final tax ▇▇▇▇, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller Sellers and Purchaser, subject to the Final Proration Date (as defined below) limitation. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's Sellers’ insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller Sellers will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Sellers on or before the end of the Survival Period (herein, the “Final Proration Date”). The provisions of this Section 10.4(a10.4 (excluding subsection (e) which is governed by Section 3.2 above), will survive the Closing for twelve (12) monthsuntil the Final Proration Date, and in the event any items subject to proration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4.
(b) Purchaser will receive a credit on the Closing Statement for (i) the Acceleration Fee (as defined in the Qanta Lease) payable by Qanta Tenant to the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Center Seller under the Qanta Lease, and (ii) the prorated amount (as of the Proration Closing Time) of all Rental Rentals previously paid to or and collected by Seller Sellers and attributable to any period from and after following the Proration Closing Time. After the Closing, Seller Sellers will cause to be paid or turned over to Purchaser all RentalRentals, if any, received by Seller Sellers after Closing and properly attributable to any period from and after following the Proration Closing Time. "RENTAL" as used herein “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include each such Tenant's proration ’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease) payable to Seller under the Tenant Leases or from other occupants or users of the Individual Property, excluding specific tenant ▇▇▇▇▇▇▇▇ which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. For a period of sixty (60) days from the Closing Date, Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Sellers by Tenants of the Property. Sellers shall have the right to pursue Delinquent Rentals after Closing, provided that Sellers shall not exercise any such remedy for a period of sixty (60) days after Closing. With respect to any Delinquent Rentals received by Purchaser within the Survival Period, Purchaser shall pay to Sellers any rent or payment actually collected during the Survival Period properly 52 attributable to the period prior to the Closing Time. All sums collected by Purchaser during the Survival Period, from such Tenant (excluding Tenant payments explicitly identified by the Tenant as payment for a specific rental period, or payments for Operating Expense Recoveries attributable to the period prior to the Closing Time and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, all of which shall be payable to and belong to Sellers in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such Tenant to Purchaser (including Delinquent Rentals attributable to the period after the Closing Time), retroactive rentalsthen any collection costs of Purchaser related to such Tenant, and then to prior delinquencies owed by Tenant to Sellers. Sellers shall be entitled to institute legal actions to pursue Delinquent Rental after a period of sixty (60) days after Closing, but in no event shall Sellers be permitted to institute eviction proceedings against any Tenant. Any sums collected by Purchaser and due to Sellers will be promptly remitted to Sellers, and any sums collected by Sellers and due to Purchaser will be promptly remitted to Purchaser. Sellers shall deliver or provide a credit in an amount equal to all administrative chargesprepaid rentals for periods after the Closing Date and all refundable cash Tenant Deposits (to the extent the foregoing were made by Tenants under the Tenant Leases and are not applied or forfeited prior to the Closing) to Purchaser on the Closing Date. Sellers shall also use commercially reasonable efforts to transfer to Purchaser any Tenant Deposits that are held in the form of letters of credit (the “SD Letters of Credit”) if the same are transferable, utility chargesat Sellers’ cost (including Sellers’ payment of any third party transfer fees and expenses); if any of the SD Letters of Credit is not transferable, tenant Sellers shall request the Tenants obligated under such SD Letters of Credit to cause new letters of credit to be issued in favor of Purchaser in replacement thereof and in the event such a new letter of credit is not issued in favor of Purchaser by Closing, Purchaser and Sellers shall diligently pursue such replacement after Closing and Sellers shall take all reasonable action, as directed by Purchaser and at Seller’s expense, in connection with the presentment of such SD Letters of Credit for payment as permitted under the terms of the applicable Tenant Lease, and in consideration of Sellers’ agreement as aforesaid, Purchaser shall indemnify, defend and hold Sellers harmless from any liability, damage, loss, cost or real propertyexpense resulting from an alleged wrongful drawing upon any of the SD Letters of Credit after the Closing.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid association dues, if any; refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All rent paid on and following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Seller and PurchaserPurchaser shall pay such Post-Closing Receipt to Seller. No prorations will be made in relation Purchaser shall use its best efforts to insurance premiumscollect all amounts which, and Seller's insurance policies will not be assigned to Purchaserupon collection, would constitute Post-Closing Receipts hereunder. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 86 Series I)
Prorations. (aA) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by SellerRents, including, without limitation, electricitypercentage rents, water if any, and any additional charges and sewer charges. If there are meters expenses payable under tenant leases, all as and when actually collected (whether such collection occurs prior to, on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to or after the Closing Date); real property taxes and assessments; water, sewer and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and utility charges; amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
any service contracts; annual permits and/or inspection fees (v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon calculated on the basis of the tax rate period covered); and any other expenses of the operation and maintenance of the Property (including, without limitation, expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the unamortized portion thereof), shall all be prorated as of 12:01 a.m. on the date the Deed is recorded, on the basis of a 365-day year. Buyer shall reimburse Seller for the preceding year applied to the latest assessed valuationtenant improvement costs, leasing commissions, legal fees and costs and free rent, as provided in Section 7.2. If, subsequent to Any sums collected by Buyer from tenants after the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be madedeemed to apply to rents and other sums that were delinquent at Closing and shall be promptly paid to Seller, and the remainder shall be retained by Buyer to apply to current obligations. Buyer shall use reasonable efforts to collect such delinquent rents and Buyer shall be entitled to reimbursement for all reasonable actual costs incurred by Buyer in collecting such delinquent rents from the amounts collected therefor by Buyer. Seller agrees retains the rights to pay Purchaser collect any increase shown by such recomputation and vice versadelinquent rents from tenants after Closing. Purchaser shall, The amount of any security deposits under tenant leases shall be credited against the Purchase Price. Security deposits in the form of letters of credit shall either be reissued in the name of Buyer at Closing, assume or Seller shall assign its rights therein to Buyer at Closing, and will reasonably cooperate with Buyer post Closing, at no expense to Seller, to facilitate the transfer to Buyer. Seller shall use reasonable efforts to cause all expenses incurred or security deposits in the form of letters of credit to be incurred amended or reissued in connection the name of Buyer as soon as possible after the Closing, and Buyer shall cooperate with any real estate tax appeals that are pending at the time of ClosingSeller in such efforts. Seller will be charged and credited for the amounts of all Upon delivery to Buyer of the Proration Items relating reissued or amended letter of credit, Seller's obligations with respect to the period up to the Proration Timesuch letter of credit shall immediately terminate, and Purchaser will be charged and credited for all of the Proration Items relating to the period and, from and after such delivery of the Proration Timereissued or amended letter of credit, Buyer shall indemnify Seller and hold harmless and defend Seller from and against any and all claims, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of the letter of credit. The estimated Seller shall receive credits at Closing prorations for the amount of any utility or other deposits with respect to the Property. Seller shall use reasonable efforts to cause all security deposits in the forms of letters of credit or certificates of deposit to be amended or reissued in the name of Buyer as soon as possible after the Closing, and Buyer shall cooperate with Seller in such efforts. It shall be set forth on a preliminary closing statement Buyer's responsibility to be prepared by Seller and submitted to Purchaser prior to transfer utility service for the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Property as of the Closing Date. Buyer agrees to release, indemnify and hold Seller harmless from all claims, liability, costs or expenses arising out of or relating to the utility service for the Property after the Closing Date. Seller shall be entitled to credit for all deposits made by it with any company providing utility service. The indemnification obligation herein shall survive Closing. Seller reserves all right, title and interest in any refund obtained from any taxing authority as a result of a pending tax appeal made by Seller prior to the date of Closing; provided, however, Seller shall remit to Buyer, the prorations will be made at Closing on proportionate share owed to tenants for amounts in excess of amounts previously paid by such tenants attributable to the basis period of Seller's ownership of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis Property. Seller and Buyer hereby agree that if any of the actual figures, aforesaid prorations and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will credits cannot be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of calculated accurately on the Closing Date, in which event no proration will then the same shall be made at calculated as soon as reasonably practicable after the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providersDate, but no later than March 31, 2001, and Purchaser will either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay said sum to the other party.
(B) Seller shall pay one-half (1/2) of the escrow fee, any county transfer taxes applicable to the sale, and one-half (1/2) of any other transfer taxes applicable to the sale. Buyer shall pay the costs of obtaining the ALTA title insurance policy, the cost of any endorsements, one-half (1/2) of any transfer taxes applicable to the sale other than county transfer taxes and one-half (1/2) of the escrow fee. Recording charges and any other expenses of the escrow for the sale shall be obligated to make its own arrangements for any deposits paid by Buyer and Seller in accordance with customary practice as determined by the utility providers. Title Company.
(C) The provisions of this Section 10.4(a) will 8.5 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ocwen Asset Investment Corp)
Prorations. (a) The following prorations shall be made between Purchaser and Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding date of Closing:
a. All rent and additional rent under the Leases of the Real Property (together the “Rent”) attributable to the period prior to the Closing Date (shall be the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by property of Seller, including, without limitation, electricity, water charges and sewer chargesall Rent attributable to the Closing Date and the period subsequent thereto shall be the property of Purchaser. If there are meters on Rent for the Real Property, month in which the Closing Date occurs has been paid by either Tenant to Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment then such rent shall be made the property of Seller and Purchaser shall receive a credit for the days between the meter reading date and all such Rent attributable to the Closing Date based on and the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable period subsequent thereto. If Rent for the calendar year. If month in which the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied occurs has not been paid by either Tenant to the latest assessed valuation. If, subsequent Seller prior to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation then such rent shall be made, the property of Purchaser and Seller agrees to pay Purchaser any increase shown by shall receive a credit for all such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating Rent attributable to the period up prior to the Proration TimeClosing Date. Purchaser and Seller each agree to remit to the other, and Purchaser will be charged and credited for within thirty (30) days after receipt of same, all Rent received by them after the Closing Date which is defined as the property of the Proration Items relating other party pursuant to the terms of this subparagraph, which obligation shall expressly survive Closing hereunder.
b. Ad valorem taxes and assessments for the year of Closing hereunder which are not payable by Tenants under the Leases (together the “Taxes”) and which are attributable to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date shall be the responsibility of Seller, and such Taxes which are attributable to the Closing Date and the period subsequent thereto shall be the responsibility of Purchaser, and shall be prorated accordingly. The parties acknowledge that under the TSA Lease, Seller is obligated to pay, on an annual basis, real property taxes in the amount of $1,292,195.00 (the "CLOSING STATEMENT"“Base Tax Amount”), which amount shall be pro-rated among the parties at Closing. The Closing StatementGovernment is obligated to pay all real property taxes in excess of the Base Tax Amount (by reimbursement thereof to Landlord under the TSA Lease), once agreed uponand such excess shall not be pro-rated at Closing, and shall be signed collected by Purchaser directly from the Government.
c. Purchaser and Seller. The proration shall be paid at Closing by Purchaser Seller agree that the payment process and status of all Seller maintenance costs or other Seller obligations under the Leases and all Service Contracts to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings Purchaser at Closing shall be jointly reviewed by the parties immediately following the Effective Date of this Agreement, and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as that based on such review Purchaser and Seller shall agree to the appropriate manner of proration of such items prior to expiration of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsDue Diligence Review Period.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Real Estate Purchase Contract (Commercial Net Lease Realty Inc)
Prorations. Prorations will be made with respect to each Property (including each Master LLC Property) and the Assumed Liabilities as provided in Sections 2.4(a)-(i) without duplication in each case.
(a) (i) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the applicable Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(iA) RentalsReal Estate Taxes as provided in Section 2.4(i), except those paid directly by Tenants to the applicable taxing authority, provided, however, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required the event such Tenants fail to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on make the Real Propertyapplicable payments, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made responsible for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts unpaid Real Estate Taxes which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating relate to the period up on and before the Proration Time and Purchaser (or its Affiliate) shall be responsible for the unpaid Real Estate Taxes which relate to the period after the Proration Time;
(B) Water charges, costs and bills paid or payable with respect to the Properties, except those paid directly by Tenants to the applicable utility provider, provided, however, in the event such Tenants fail to make the applicable payments, Seller shall be responsible for the unpaid water charges, costs and bills which relate to the period on and before the Proration Time and Purchaser (or its Affiliate) shall be responsible for the unpaid water charges, costs and bills which relate to the period after the Proration Time;
(C) Sewer charges, costs and bills paid or payable with respect to the Properties, except those paid directly by Tenants to the applicable utility provider, provided, however, in the event such Tenants fail to make the applicable payments, Seller shall be responsible for the unpaid sewer charges, costs and bills which relate to the period on and before the Proration Time and Purchaser (or its Affiliate) shall be responsible for the unpaid sewer charges, costs and bills which relate to the period after the Proration Time;
(D) Accrued interest payable under Assumed Indebtedness as provided in Section 2.4(h) but not late fees and other costs, charges, and past due interest owing to the lender before the Proration Time, and Purchaser which will be charged and credited for all Seller's sole expense;
(E) Amounts, if any, payable or cash received by the owner of the Proration Items relating to Property under the period from REA Agreements, including prepaid amounts and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller unpaid amounts;
(F) Annual permit, license and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statementinspection fees, once agreed uponif any, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafterfiscal year for which levied;
(G) Charges for fuel oil and liquid propane gas, when actual figures are receivedif any, re-prorations will be made at the cost per gallon or cubic foot most recently charged to the owner of the Property, based on the basis supplier's measurements thereof, plus sales taxes thereon to the extent applicable;
(H) Rentals as provided in Section 2.4(b) (other than payments for Operating Expenses which shall be apportioned as provided in Section 2.4(c)), including prepaid Rentals;
(I) Amounts payable by or to Seller or the owner of the actual figuresProperty under a management, development and/or other Contract which is part of the Assumed Liabilities relating to the Property (other than a Contract providing for the payment of leasing commissions or brokerage fees, which shall be Seller's sole responsibility);
(J) Cash reserves and escrow deposits for real property taxes and assessments, insurance premiums and other items, other than the reserves listed on SCHEDULE 2.4(a)(i)(j) for which Seller shall not receive a final cash settlement will credit towards the Purchase Price (provided, however, in the event that Seller corrects the condition for which the applicable reserve listed on SCHEDULE 2.4(a)(i)(j) was created, then such reserves may be released to Seller when (and if) the applicable lender is willing to release such reserves as a result of (i) Seller's correction of the condition or (ii) upon repayment or extension of the loan), made between Seller and Purchaser. No prorations with, or held by, the lender under any of the Assumed Indebtedness, net, if appropriate, of any allocation to the same party of the underlying expense for which the reserve is held, together with so much of any interest earned on the reserve or escrow deposit as is properly attributable to the allocated amount thereof, provided however, adjustments for casualty or condemnation proceeds held by the lender under any of the Assumed Indebtedness will be made in relation accordance with Article VIII;
(K) Rentals and other amounts payable to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as third parties by the owner of the Closing DateProperty under the Ground Leases and/or the Subleases, including contingent and/or participating rents;
(L) Rentals and other amounts payable to third parties under Subleases;
(M) Prepaid expenses as provided in which event no proration will be made at the Closing Section 2.4(f);
(N) Ground Lease deposits as provided in Section 2.4(g);
(O) Tenant Security Deposits as provided in Section 2.7;
(P) Personal property taxes and assessments that have been levied or assessed with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providersany Acquired Asset, whether or not due and payable, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.whether paid or unpaid;
(bQ) Purchaser will Amounts determinable that are payable under the Assumed Liabilities;
(R) Utility Deposits identified on SCHEDULE 2.4(a)(i)(R) for which Seller shall receive a credit on the Closing Statement for the prorated amount at Closing; and
(S) Except as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentalsset forth below, all administrative charges, utility charges, tenant or real propertyother items customarily apportioned in connection with the transfer of similar properties similarly located.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Developers Diversified Realty Corp)
Prorations. (a) The Escrow Agent shall deliver a draft closing statement showing all prorations and expenses of the transaction to Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date at least three (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (53) days prior to the Close of Escrow. Taxes and assessments affecting the Property and any expenses of the Property shall be prorated between Purchaser and Seller as of the Closing Date, . All non-delinquent real estate taxes and a per diem adjustment assessments on the Property shall be made for prorated based on the days between the meter reading date and actual current tax ▇▇▇▇, but if such tax ▇▇▇▇ has not yet been received by Seller by the Closing Date based on or if supplemental taxes are assessed after the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable Closing for the calendar year. If period prior to the Closing, the parties shall make any necessary adjustment after the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied by cash payment to the latest assessed valuation. Ifparty entitled thereto so that Seller shall have borne all real property taxes, subsequent including all supplemental taxes, allocable to the period prior to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for shall bear all of the Proration Items relating real property taxes, including all supplemental taxes, allocable to the period from and after the Proration TimeClosing. The estimated Closing prorations shall be set forth on a preliminary closing statement If any expenses attributable to be prepared by Seller the Property and submitted allocable to Purchaser the period prior to the Closing Date are discovered or billed after the Closing, the parties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Seller shall have borne all expenses allocable to the period prior to the Closing and Purchaser shall bear all expenses allocable to the period from and after the Closing (the "CLOSING STATEMENT"). The Closing Statementprovided, once agreed uponhowever, that Purchaser shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser responsible for all pre-closing expenses related to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providersApprovals). The provisions of this Section 10.4(a) will Article 6 shall survive the Closing Closing, for twelve a period of one (121) months.
(b) Purchaser will receive a credit on the Closing Statement year. All improvement and special liens and assessments shall be prorated, with Seller paying all amounts due for the prorated amount (as of period prior to Closing and Purchaser paying all amounts due for the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Prorations. (a) Seller and Purchaser agree to adjustIt is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to operate the Property from and after Closing and, pursuant to said Property Lease, shall be entitled to all revenues generated from, and shall be obligated to pay all taxes and expenses (including all rental due under the Ground Lease) relating to, the Property from and after Closing and during the entire term of 11:59 p.m. on the day preceding Property Lease (subject, however, to 34 39 payment of the various rentals otherwise described in said Property Lease). As a result of the foregoing, there shall be no proration, at Closing of any revenue, tax or expense items hereunder. However, for purposes of determining "Additional Rent" due and owing under the Property Lease for the year in which the Closing Date (the "PRORATION TIME"), the following (collectivelyi.e., the "PRORATION ITEMS"):Commencement Date" under the Property Lease) occurs, the parties agree as follows:
(ia) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required All revenue received by Seller that relates to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to time periods after the Closing Date, including, but not limited to, deposits, advance registration and a per diem adjustment other fees previously received by Seller, rents, membership dues, initiation fees, prepaid greens fees, coupon book receipts, gift certificates, discount certificates, locker rentals, tournament fees, tradeouts, function deposits, and bag storage charges, shall be made for deemed "Golf Course Revenue" or "Other Revenue" (as the days between case may be) under the meter reading date and Property Lease, attributable to periods following the Closing Commencement Date based of the Property Lease term on the most recent meter readingan accrual basis in accordance with generally accepted accounting principles.
(ivb) Amounts payable under the Spectrasite Agreements All of Seller's receivables, unreceived revenue and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items deferred income relating to the period up to the Proration Time, and Purchaser will be charged and credited for all operation of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser Property prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed uponand not otherwise provided for in this Section 10.2 or elsewhere in this Agreement, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to remain the property of Seller (if the prorations result in a net credit to Seller"SELLER'S RECEIVABLES") or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will shall not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of deemed "Golf Course Revenue" or "Other Revenue" under the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and Property Lease attributable to any period falling within the term of the Property Lease. It is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to attempt to collect Seller's Receivables following the Closing Date. Regardless of payee designation, all payments received following the Closing Date by the Lessee, as lessee under the Property Lease, from and after the Proration Time. After the Closing, Seller will cause any club member who has an outstanding Seller's Receivables shall be presumed to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, payments in respect to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative currently due charges, utility charges, tenant or real propertyand thereafter to outstanding Seller's Receivables in the inverse order of maturity.
Appears in 1 contract
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the tax rate most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below and except for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (which will be reprorated upon receipt of actual bills. If any unit has remained vacant for more than 9 days without being made "rent ready", Seller will give Purchaser a credit of $250 for such unit for cleaning, painting touch-up, carpet shampoo and minor appliance repair. If such a unit requires carpet replacement or other renovation not covered by reason the preceding sentence, Purchaser and Seller will agree on the amount of change the credit to Purchaser. If Seller receives a credit for a utility deposit, Seller shall execute an assignment thereof substantially in either assessment or rate or the form attached as Exhibit N.
12.2. All monies received after Closing by Purchaser from any tenant of the Property who is indebted under a lease for rent for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (will first be applied to rent or other charges currently due to Purchaser under the "CLOSING STATEMENT")applicable lease. The Closing Statement, once agreed upon, Any balance remaining after the application of such monies to current rent shall be signed deemed a "Post-Closing Receipt", but only to the extent such pre-closing indebtedness has not been paid in full. Within ten (10) days following each receipt by Purchaser and of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. The proration Purchaser shall be paid at use good faith efforts to collect all amounts which, upon collection, would constitute Post-Closing by Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Paragraph 12.2 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
12.3. At Closing, One Hundred Thousand and No/100 Dollars (if $100,000.00) of the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment balance of the Purchase Price at shall be deposited in escrow pursuant to the Closing. If the actual amounts terms of the Proration Items are Escrow Agreement and shall constitute the "Holdback Escrow Funds". Seller and Purchaser shall set forth the outstanding rents and all other monthly payments due and payable to Purchaser (i.e. those allocable to the period of ownership of the Property by Purchaser) under the Leases for the month in which the Closing occurs that have not known already been credited to Purchaser at Closing (the "Outstanding Rents Due") in a schedule to be created and agreed upon within three (3) business days after the date of Closing (the "Closing Rent Schedule"). Upon Closing, Purchaser shall use its best efforts to collect the Outstanding Rents Due. Purchaser shall also use commercially reasonable efforts to collect all rents and other monthly fees due under the Leases (in accordance with the various terms of the Leases) for the month following the month in which the Closing occurs. On or before 5:01 p.m. Chicago time on July 31, 1997, Purchaser shall deliver to Escrow Agent and Seller a schedule (the "Final Closing Rent Schedule") that accurately shows: (a) the total rents and all other monthly payments due and payable under the Leases for the month following the month in which the Closing occurs (the "Second Month Outstanding Rents Due"); (b) all Second Month Outstanding Rents Due actually collected by Purchaser as of the date of the Final Closing DateSchedule (the "Second Month Rents Actually Collected"); and (c) the difference between the Second Month Outstanding Rents Due and the Second Month Rents Actually Collected (the "Second Month Deficiencies"). In addition to setting forth the Second Month Deficiencies, the prorations will be made Final Closing Rent Schedule shall also set forth the Outstanding Rents Due that have still not been collected by Purchaser, together with appropriate documentation supporting any such amounts. The sum of (a) the Outstanding Rents Due which are still outstanding at Closing on the basis time of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, Final Closing Schedule and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid Second Month Deficiencies shall be referred to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyas
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges6.7.1. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final Re▇▇ ▇▇▇▇▇▇▇▇ for utilities will y taxes, assessments, rents, security deposits, and cam expenses shall be made if possible prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents, security deposits and cam expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents collected by Buyer shall be paid to Seller. Seller shall have the Closing Dateright to pursue any Tenant for delinquent rent, in which event no proration will but shall not cause a Tenant to be made at delinquent for their current rent or become financially unstable. Tax and assessment prorations shall be based on the Closing latest available tax bill. If, after Close of Escrow, Buyer receives any further or supplemental tax bill relating to any period prior to Close of Escrow, ▇▇ ▇eller receives any further or supplemental tax bill relating to any period after Close of Escrow, the ▇▇▇ipient shall promptly deliver a copy of such tax bill to the other party, and not later than ten (10) d▇▇▇ prior to the delinquency date shown on such tax bill Buyer and Seller shall deliver to the taxing auth▇▇▇▇y their respective shares of such tax bill, prorated as of Close of Escrow.
6.7.2. ▇▇l leasing commissions owing and tenant improvements with respect to utility billsthe Property transactions entered into prior to execution of this Agreement shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new Leases and for Lease renewals and expansion options executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new Lease.
6.7.3. Seller will be entitled agrees to indemnify and hold Buyer harmless of and from any and all deposits presently in effect with the utility providersliabilities, claims, demands, suits, and Purchaser will be obligated to make its own arrangements for judgments, of any deposits with kind or nature, including court costs and reasonable attorneys' fees (except those items which under the utility providers. The provisions terms of this Section 10.4(a) will survive Agreement specifically become the Closing for twelve (12) monthsobligation of Buyer), brought by third parties and based on events occurring on or before the date of closing and which are in any way related to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as 6.7.4. Buyer agrees to indemnify and hold Seller harmless of the Proration Time) and from any and all liabilities, claims, demands, suits and judgments, of all Rental previously paid to any kind or collected by Seller and attributable to any period from and after the Proration Time. After the Closingnature, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance including court costs and expenses as provided for under the Leasereasonable attorneys' fees, brought by third parties and based on events occurring subsequent to the extent date of closing and which are in any way related to the same exceeds any expense stop specified in such Lease)Property, retroactive rentalsand all expenses related thereto, all administrative chargesincluding, utility chargesbut not limited to, tenant or real propertycourt costs and attorneys' fees.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Prorations. (a) Seller and Purchaser agree to adjust, The following shall be prorated as of 11:59 11.59 p.m. CST on the day immediately preceding the Closing Date and be adjusted against the Purchase Price due at Closing: (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(ia) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits rents and any prepaid rentsother amounts actually collected from tenants and other persons using or occupying the Property as of the Closing Date; (b) utility charges including sewer charges (utility charges shall be prorated based on the last reading of meters prior to Closing performed at Seller’s request, if possible) and normally prorated operating expenses for the month of Closing that are actually paid as of the Closing Date subject however to Section 6.5 below with respect to ratio utility billing systems (RUBS); and (c) amounts owed by Seller or paid for the month of Closing under the Contracts described in Section 3.3 hereof as of the Closing Date (on the basis of the fiscal year or billing period of the person levying or charging for the same). Leasing commissions or finder’s fees (if any) shall be paid in full by Seller for each lease entered into after the Effective Date and prior to Closing. Within sixty (60) days after the Closing, Purchaser and Seller will make a further adjustment based upon the above proration provisions for such rents collected or charges paid which accrued or were incurred prior to the Closing Date, but not billed or paid at that date, including any bills that were not available as of the Closing Date but relate to. expenses incurred prior to the Closing Date and thereafter paid. Except as otherwise stated in this Agreement, all prorations shall be made on a 365-day calendar year basis, based on the actual number of days in the applicable month. The terms of this Section 6.3 shall survive Closing as necessary to accommodate the post-Closing adjustments contemplated herein. Seller and Purchaser shall endeavor to cause the Title Company to prepare draft closing statements containing the prorations and adjustments described in this Section 6 and deliver the same together with interest required to be paid thereon.
invoices or bills for all prorated expenses and other reasonable backup information from Seller no later than 3:00 p.m. CST two (iii2) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) business days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Resource Apartment REIT III, Inc.)
Prorations. (a) The Purchase Price for the Property shall be subject to prorations and credits as follows to be determined as of 12:01 A.M. on the Closing Date, the Closing Date being a day of income and expense to Purchaser:
1. Rents payable under Tenant Leases. Purchaser shall receive a credit at Closing for all rents collected by Seller prior to the Closing and allocable to the period after Closing. No credit shall be given the Seller for accrued and unpaid Rent or any other non-current sums due from tenants unless and until said sums are paid. Any portion of any rents collected subsequent to the Closing Date and properly allocable to periods prior to the Closing Date shall be paid, promptly after receipt, to the Seller, but subject to all of the provisions of this Section hereof; and any portion thereof properly allocable to periods subsequent to the Closing Date, if any, shall be paid to Purchaser. Seller shall be solely responsible for collecting any rent under the Tenant Leases which is past due as of the Closing; provided, however, Purchaser shall be responsible for collecting any rent due for the month in which the Closing occurs and shall pay to Seller the portion of such rents if, as and when collected which has accrued prior to Closing. Any security deposits held by Seller at Closing shall be credited to Purchaser on the Closing Date.
2. Seller shall be entitled to collect from tenants the monthly adjustment rent or escalation payments payable under the Tenant Leases for the period prior to Closing for taxes and operating expenses for the Project, and Purchaser agree shall retain all such monthly rent or payments for the period after Closing. As soon as all such taxes and operating expenses for the Project are finally determined for the year in which the Closing occurs, Purchaser shall be responsible for adjusting with the tenants the adjustment rent or escalation payments paid under the Tenant Leases for such year. Seller shall pay to adjustPurchaser Seller's share of any such adjustment payments owed to tenants under the Tenant Leases, as and Purchaser shall remit to Seller Seller's share of 11:59 p.m. any such adjustment payments paid by tenants; and Seller shall indemnify and hold Purchaser harmless in connection with all claims for Seller's share of the adjustments owed to tenants, which indemnity shall survive the Closing. Seller's share of any adjustments shall be determined based on the day preceding portion of operating expenses and real estate taxes for the year incurred by Seller (after taking into account any prorations pursuant to this Section D).
3. Purchaser shall receive a credit for any accrued but unpaid real estate taxes imposed in respect of the Project for the portion of the current year which has elapsed prior to the Closing Date (and to the "PRORATION TIME"extent unpaid, for prior years). If the amount of any such taxes have been determined as of Closing, such credit shall be based on the following (collectively, most recent ascertainable taxes and shall be reprorated upon issuance of the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowfinal tax bill. Seller shall also give Purchaser a credit for any special assess▇▇▇▇s against the Project which are due and payable prior to Closing.
(ii) Cash Security Deposits 4. Utilities and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Sellerfuel, including, without limitation, steam, water, electricity, water charges gas and sewer chargesoil. The Seller shall cause the meters, if any, for utilities to be read the day on which the Closing Date occurs and to pay the bills rendered on the basis of such readings. If there are meters any such reading for any utility is not available, then adjustment therefor shall be made on the Real Property, Seller will cause basis of the most recently issued bills therefor which are based on meter readings of all said meters no earlier than thirty (30) days prior to the Closing Date; and such adjustment shall be performed not more than reprorated when the next utility bills are received.
5. Charges payable under the Service Contracts assigned to Purchaser pursuant to this Agreement.
6. Any vault fees or similar payments for the Project. At least five (5) days prior to Closing, Seller shall deliver to Purchaser copies of all information and records necessary to support the Closing Date, and a per diem adjustment prorations hereunder. In the event any prorations made pursuant hereto shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or prove incorrect for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportionedreason whatsoever, a new computation either party shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with an adjustment to correct the utility providerssame, and Purchaser will provided no adjustments shall be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(arequested more than one (1) will survive the Closing for twelve (12) monthsyear after Closing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Beacon Properties Corp)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid The Title Company shall prorate all rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Sellernon-delinquent real property taxes, includingwater, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Datesewer, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and utility charges, amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
Contracts, annual permits and/or inspection fees (v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing calculated on the basis of the best evidence then available; thereafterperiod covered), when actual figures are receivedinsurance premiums (as to those policies, re-prorations if any, that Buyer determines will be made continued after the Closing), and other expenses normal to the operation and maintenance of the Property on the basis of a 365-day year as of 12:01 a.m. on the actual figuresdate the grant deed is recorded. Seller shall endeavor to have all meters for serving utilities, including, but not limited to, water, sewer, gas, and a final cash settlement will be made between electricity read on the day before the Closing Date for proration purposes. Seller shall transfer to Buyer at the Closing all security deposits and other sums held for tenants and shall supply Buyer with an updated list of all tenants, security deposit amounts and the originals of all tenant leases together with the tenant files. At Closing, Seller shall transfer possession of the Property so that Buyer or its assignee may immediately continue with ongoing leasing operations and Seller shall cooperate with Buyer in providing all information that pertains to: delinquent rents, late fees, evictions, damages to retail units, and all similar matters. Seller and Purchaser. No Buyer hereby agree that if any of the aforesaid prorations will be made in relation to insurance premiums, and Seller's insurance policies will cannot be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of calculated accurately on the Closing Date, in which event no proration will then the same shall be made calculated within thirty (30) days after the Closing Date and either party owing the other party a sum of money based on such subsequent proration(s) shall promptly pay said sum to the other party, together with interest thereon at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions rate of this Section 10.4(aten percent (10%) will survive per annum from the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, Date to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydate of payment if payment is not made within ten (10) days after delivery of a bill therefore.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Montgomery Realty Group Inc)
Prorations. The following shall be prorated as of the Closing Date and the Purchase Price shall be adjusted accordingly at Closing: (a) Seller rents and Purchaser agree to adjust, any other amounts actually collected from tenants and other persons using or occupying the Properties as of 11:59 p.m. the Closing Date; (b) sewer charges, utility charges (utility charges shall be prorated based on the day preceding last reading of meters prior to Closing performed at Seller’s request, if possible) and normally prorated operating expenses actually billed or paid as of the Closing Date; and (c) amounts owed by Seller or paid under the Service Contracts as of the Closing Date. Purchaser shall at all times after Closing use commercially reasonable efforts (not to include commencing any eviction action or other litigation to collect such delinquency) to collect all rent or other amounts owed for the period prior to Closing, and Seller shall retain the right for up to ninety (90) days after Closing to pursue all PFS:009462.0002.2820427.11 remedies (not to include commencing any eviction action or other litigation to collect such delinquency, or terminating any lease) against tenants under Leases to collect such rents and other amounts due to Seller. All rent received by Purchaser or Seller after the Closing Date (shall be applied first to current rentals, then to delinquent rents accruing in the "PRORATION TIME")month of Closing and then, to the following (collectivelyextent the applicable tenant identifies such rent as attributable to the period prior to Closing, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days delinquent rentals accruing prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment The agreements of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, in this Section 8(a) shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at survive the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)
Prorations. (a) 6.7.1. Real property taxes, assessments, rents, security deposits expenses and other prorateable items shall be prorated through Escrow between Buyer and Seller and Purchaser agree to adjust, as of 11:59 p.m. Close of Escrow. Rents, security deposits and expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents collected by Buyer shall be paid to Seller. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not cause a Tenant to be delinquent for their current rent or become financially unstable. Tax and assessment prorations shall be based on the day preceding the Closing Date (the "PRORATION TIME")latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the following recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (510) days prior to the Closing Date, delinquency date shown on such tax ▇▇▇▇ Buyer and a per diem adjustment Seller shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied deliver to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason taxing authority their respective shares of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will , prorated as of Close of Escrow. Any reserves maintained by Seller with the Lender in connection with the Loan that have not been and are not subject to being called upon by the Lender either shall be refunded to the Seller by the Lender or credited to the Seller at the Closing.
6.7.2. All leasing commissions owing and tenant improvements to be made if possible as with respect to the Property in connection with transactions entered into prior to execution of this Agreement shall be paid by Seller, and Seller shall indemnify, defend and hold Buyer harmless from and against all leasing commission claims brought against Buyer or the Closing DateProperty arising therefrom. If any of such tenant improvements have not been completed prior to close of Escrow, in which event no proration will be made Seller shall credit Buyer at the Closing with respect the reasonable estimated cost of completing such tenant improvements. All leasing commissions for new Leases and for Lease renewals and expansion options executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to utility billsthe primary term of the new Lease, renewal or expansion.
6.7.3. Seller will be entitled agrees to indemnify, defend and hold Buyer harmless from and against any and all deposits presently in effect with the utility providersliabilities, damages, losses claims, demands, suits, and Purchaser will be obligated to make its own arrangements for judgments, of any deposits with kind or nature, including court costs and reasonable attorneys' fees (except those items which under the utility providers. The provisions terms of this Section 10.4(a) will survive Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the date of Closing for twelve (12) monthsand which are in any way related to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid 6.7.4. Buyer agrees to or collected by indemnify, defend and hold Seller and attributable to any period harmless from and after against any and all liabilities, damages, losses, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by third parties and based on events occurring subsequent to the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after date of Closing and attributable which are in any way related to any period from the Property, and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentalsall expenses related thereto, additional rentalsincluding, percentage rentalsbut not limited to, escalation rentals (which include each Tenant's proration share of building operation and maintenance court costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyattorneys' fees.
Appears in 1 contract
Prorations. The following items relating to the Assets, the ownership of the PGE Colstrip Interests, and the operation of the Colstrip Facilities, will be allocated pro rata per diem for the tax year that includes the date of the Closing, with Seller liable for such items to the extent they are allocable to the period prior to the date of the Closing and Purchaser liable for such items to the extent they are allocable to periods beginning with and subsequent to the date of the Closing:
(a) Seller and Purchaser agree Property Taxes on or with respect to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowAssets.
(iib) Cash Security Deposits and any prepaid Rents, additional rents, together Taxes, to the extent normally adjusted in connection with interest required to be paid thereonsimilar transactions, and other items payable by Seller under the Real Property Leases and the Business Contracts.
(iiic) Utility The amount of rents, Taxes and charges payable for sewer, water, telephone, electricity and other utilities relating to the Real Property and the real property subject to the Real Property Leases.
(d) All other items (excluding other Taxes) normally adjusted in connection with similar transactions. Except as otherwise agreed by Sellerthe parties, including, without limitation, electricity, water charges the net amount of all such prorations will be settled and sewer charges. If there are meters paid on the Real Property, Seller will cause readings date of all said meters to be performed not more than five the Closing. At least ninety (590) days prior to the Closing Date, and Seller will provide Purchaser with a per diem adjustment shall be made for reasonably detailed schedule showing a calculation of the days between the meter reading date and estimated prorations as if the Closing Date based were occurring on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearsuch date. If the Closing Date shall occur before the tax a real estate Tax rate is fixed, the apportionment of real estate taxes Taxes shall be based upon the basis of the tax Tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property valuation and Improvements should be determined to be higher or lower than those that are apportioned, a new computation such Taxes shall be madereprorated upon the request of Seller, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shallon the one hand, at Closingor Purchaser, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at on the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Timeother hand, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and made within sixty (60) days after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If date that the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then become available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between . Seller and Purchaser. No prorations will Purchaser agree to furnish each other with such documents and other records as may be reasonably requested in order to confirm all adjustment and proration calculations made in relation pursuant to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months1.06.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Prorations. (a) Seller At each Closing, the following shall be apportioned and Purchaser agree to adjustadjusted between each Contributor, on the one hand, and the New Company, on the other hand, as of 11:59 p.m. on (Eastern Standard Time) as of the last day of the calendar month immediately preceding the month in which the applicable Closing Date occurs (the "PRORATION TIME"“Prorations Date”), with the following (collectively, Contributor responsible for matters relating to its Contributed Properties for the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days period prior to the Closing Prorations Date, and a per diem adjustment shall be made the New Company responsible for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items matters relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period such Contributed Properties from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller Prorations Date, except as otherwise specified:
(a) rents and submitted to Purchaser prior additional rents under or in respect of Tenant Leases, as, when and to the Closing Date (the "CLOSING STATEMENT"). The Closing Statementextent actually collected, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made period for which payable under the applicable Tenant Lease and apportioned on the basis of the actual figuresnumber of days in such period, along with security, pet, key and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of any other deposits held by the Closing Date, in which event no proration will be made at landlord under the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.Tenant Leases;
(b) Purchaser will receive any real property taxes, water and sewer rents and charges; any tax credit or refund collected as a credit result of any real property tax appeal; vault taxes or charges, elevator inspection charges and other like and similar municipal taxes and charges, each on the basis of the fiscal year or other period for which assessed, and apportioned upon the basis of the actual number of days in such year or period. If actual tax bills are not available, taxes shall be apportioned based on the most recent tax bills available, with a post-Closing Statement adjustment to be made as soon as tax bills for the prorated amount fiscal year during which the Closing occurs become available;
(as c) subject to Section 4.5, electric, gas, steam and other public utility charges for services furnished to the Contributed Properties, on the basis of the Proration Timeactual number of days in any period covered by the charge being apportioned (except that no apportionment shall be made for any of such items as are furnished and charged by the applicable utility company directly to tenants under the Tenant Leases);
(d) all charges under the Contracts, on the basis of the actual number of days in any period covered by the charge being apportioned. The Tarragon Contributors with respect to the Tarragon Properties, and the Northland Contributors with respect to the Northland Properties shall bear the cost of all Rental previously paid to installments or collected by Seller amounts of items which are being apportioned under this Section which became due and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, payable prior to the extent Prorations Date; and
(e) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyContributed Properties.
Appears in 1 contract
Prorations. All revenues, income, receiv- a▇▇▇▇, costs, expenses and payables of the Property shall be apportioned equitably between the parties as of Closing on the basis of the actual number of days in a particular month, and with respect to the items enumerated below where a particular manner of apportionment is provided, then apportionment of such item shall be made in such manner. The obligation to make apportionments shall survive Closing. Without limitation, the following items shall be so apportioned:
(ai) Seller Monthly rents and Purchaser agree to adjustpercentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as of 11:59 p.m. on and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the day preceding collection thereof in good faith after the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest but Purchaser shall not be required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer chargeslitigate or declare a default in any Tenant Lease). If there are meters To the extent Purchaser receives amounts on the Real Property, Seller will cause readings account of all said meters to be performed not more than five (5) days prior to Tenant Leases on or after the Closing Date, and a per diem adjustment such payments shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which applied first toward then current rent owed to Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with the applicable Tenant Lease for which such payments are received, and any real estate tax appeals that are pending at excess monies received shall be applied toward the time payment of Closingany delinquent rents, with Seller's share thereof being promptly delivered to Seller. Purchaser may not waive any delinquent rents nor modify a Tenant Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive its share of charges or amounts without first obtaining Seller's written consent. Seller will hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be charged require to litigate or declare a default in any Lease). With respect to delinquent rents and credited for the any other amounts or other rights of all any kind respecting tenants who are no longer tenants of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Property as of the Closing Date, Seller shall retain all rights relating thereto.
(ii) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the prorations will earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Seller and Purchaser if current tax rates differ from the latest previous tax rates as soon as the same are known. Seller agrees that to the extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, the Seller or the Purchaser at any time subsequent to Closing but with reference to any period prior thereto during Seller's ownership thereof, Seller shall promptly pay to Purchaser an amount equal to such additional assessments or levies. Similarly, if tax refunds become payable for periods during Seller's ownership of the Property, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Seller) shall be promptly paid over to Seller. In the event that any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installment due after the Closing Date). In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made at or lease entered into on or after the Closing Date.
(iii) Transferable annual permits, licenses, and/or inspection fees, if any, on the basis of the best evidence then available; thereafterduration of the same;
(iv) Security Deposits, when actual figures are receivedplus accrued interest, re-prorations will if any, payable thereon to tenants which have not been validly applied by Seller to a prior default by any of such tenants, and any other deposits and prepaid rent, shall be made credited (or assigned) to Purchaser;
(v) Subject to the provisions of Paragraph 12(c) below, utility charges levied against Seller or the Property, and Purchaser shall transfer all such utility services to its name and account immediately upon Closing;
(vi) Service Contracts on the basis of the actual figurescharge or premium for the period involved;
(vii) Tenant improvements costs and leasing commissions for leases signed after the November 1, 1996 shall be paid by Purchaser if approved by Purchaser in accordance with Paragraphs 7(a) and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months7(b).
(bviii) Purchaser will receive a credit on All other operating expenses incurred in the Closing Statement for the prorated amount (as management and operation of the Proration Time) Property. No insurance policies shall be assigned hereunder, and accordingly there shall be no proration of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyinsurance premiums.
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Prorations. (a) Seller and Purchaser agree to adjustIt is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to operate the Property from and after Closing and, pursuant to said Property Lease, shall be entitled to all revenues generated from, and shall be obligated to pay all taxes and expenses (including all rental due under the Ground Lease) relating to, the Property from and after Closing and during the entire term of 11:59 p.m. on the day preceding Property Lease (subject, however, to payment of the various rentals otherwise described in said Property Lease). As a result of the foregoing, there shall be no proration, at Closing, of any revenue, tax or expense items hereunder. However, for purposes of determining "Additional Rent" due and owing under the Property Lease for the year in which the Closing Date (the "PRORATION TIME"), the following (collectivelyi.e., the "PRORATION ITEMS"):Commencement Date" under the Property Lease) occurs, the parties agree as follows:
(ia) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required All revenue received by Seller that relates to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to time periods after the Closing Date, including, but not limited to, deposits, advance registration and a per diem adjustment other fees previously received by Seller, rents, membership dues, initiation fees, prepaid greens fees, coupon book receipts, gift certificates, discount certificates, locker rentals, tournament fees, tradeouts, function deposits, and bag storage charges, shall be made for deemed "Golf Course Revenue" or "Other Revenue" (as the days between case may be) under the meter reading date and Property Lease, attributable to periods following the Closing Commencement Date based of the Property Lease term on the most recent meter readingan accrual basis in accordance with generally accepted accounting principles.
(ivb) Amounts payable under the Spectrasite Agreements All of Seller's receivables, unreceived revenue and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items deferred income relating to the period up to the Proration Time, and Purchaser will be charged and credited for all operation of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser Property prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed uponand not otherwise provided for in this Section 10.2 or elsewhere in this Agreement, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to remain the property of Seller (if the prorations result in a net credit to Seller"SELLER'S RECEIVABLES") or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will shall not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of deemed "Golf Course Revenue" or "Other Revenue" under the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and Property Lease attributable to any period falling within the term of the Property Lease. It is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to attempt to collect Seller's Receivables following the Closing Date. Regardless of payee designation, all payments received following the Closing Date by the Lessee, as lessee under the Property Lease, from and after the Proration Time. After the Closing, Seller will cause any club member who has an outstanding Seller's Receivables shall be presumed to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, payments in respect to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative currently due charges, utility charges, tenant or real propertyand thereafter to outstanding Seller's Receivables in the inverse order of maturity.
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Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes and similar items shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (paid by reason of change Purchaser and Assessments payable in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that installments which are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating attributable to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser time prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Seller and PurchaserPurchaser shall pay such Post-Closing Receipt to Seller, subject to proration for the month of Closing. No prorations will be made in relation Purchaser shall use its best efforts to insurance premiumscollect all amounts which, and Seller's insurance policies will not be assigned to Purchaserupon collection, would constitute Post-Closing Receipts hereunder. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect the terms hereof. Seller retains the right to utility billsconduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller will be entitled to all deposits presently in effect with pay the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”) real estate and personal property taxes and assessments normally billed and collected in the year in which Closing occurs, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with Section 10.4(bcollected Rentals (subject to the terms of (b) below.
(ii) Cash Security Deposits and any prepaid rents), together with interest required to be paid thereon.
(iii) Utility charges operating expenses payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters the owner of the Property (on the Real Propertybasis of a 365 day year, Seller will cause readings of all said meters to be performed not more than five (5) actual days prior to the Closing Dateelapsed), and a per diem adjustment shall be made for the days between the meter reading date and the Pre-Closing Date based on the most recent meter reading.
Taxes (iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reasondescribed above) for the Real Property and Improvements should be determined to be higher current Tax period or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closingnot yet delinquent. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's ’s and the Owners’ insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before the date six (6) months after the Closing Date (herein, the “Final Proration Date”). The provisions of this Section 10.4(a10.4 (excluding subsections (e) and (g) which are governed by Section 3.2), will survive the Closing for twelve (12) monthsuntil Final Proration Date, and in the event any items subject to proration hereunder are discovered prior to Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Closing Time) of all Rental Rentals previously paid to or and collected by Seller and attributable to any period from and after following the Proration Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all RentalRentals, if any, received by Seller after Closing and properly attributable to any period from and after following the Proration Closing Time. "RENTAL" as used herein “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include each such Tenant's proration ’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to the landlord under the Tenant Lease or from other occupants or users of the Property, excluding specific tenant ▇▇▇▇▇▇▇▇ which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. For a period of six (6) months after Closing, Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser will not be required to expend any funds or incur any monetary obligations with respect to such efforts, and shall have no liability for the failure to collect any such amounts and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. Seller shall have the right to pursue Delinquent Rentals after Closing. With respect to any Delinquent Rentals received by Purchaser within one (1) year after Closing (the “Delinquent Rental Proration Period”), Purchaser shall pay to Seller any rent or payment actually collected during the Delinquent Rental Proration Period properly attributable to the period prior to the Closing Time. All sums collected by Purchaser during the Delinquent Rental Proration Period, from such Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, all of which shall be payable to and belong to Seller in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such Tenant to Purchaser (including Delinquent Rentals attributable to the period after the Closing Time), then any collection costs of Purchaser related to such Tenant, and then to prior delinquencies owed by Tenant to Seller. Seller shall be entitled to institute legal actions to pursue Delinquent Rental after Closing, but in no event shall Seller be permitted to institute eviction proceedings against any Tenant or to levy against or seize any personal property of any Tenant located on or in the Real Property or to garnish or attach any rentals due under any Tenant Lease. Any sums collected by Purchaser and due Seller will be promptly remitted to Seller, and any sums collected by Seller and due Purchaser will be promptly remitted to Purchaser.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"“Proration Time”), the following (collectively, the "PRORATION ITEMS"“Proration Items”):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, if any, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(ivii) Amounts payable under the Spectrasite Agreements License fees and any other amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assumeAT&T Wireless License, if any.
(viii) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes .
(iv) Any unconfirmed assessments will be satisfied in full by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration prorations shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Prorations. 15.1 Water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (ai.e. adjusted for all tenants' liabilities, if any, for such items); operating expenses paid by Seller which are reimbursable by the tenants for the period prior to the Closing Date, less any amount previously paid by the tenants; unpaid operating expenses for the period prior to the Closing Date prorated on a "net" basis, as set forth above; and all other items of expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing Date ("Proration Date"). Seller shall be entitled to a credit for all transferable utility deposits to the extent actually transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due prior to the Closing Date shall be paid by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. If any ongoing real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the conte▇▇, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it related to the real estate tax proration to the extent such tax contest is successful. All other prorations will be final except as to delinquent rent referred to in Paragraph 15.2 below and as provided in Paragraph 15.3. Purchaser shall be credited and Seller will be charged with an amount equal to all Tenant security deposits and interest thereon being held by Seller or Seller's managing agent. Seller shall be entitled to retain all Tenant security deposits, interest thereon, or other such credit due Tenants for which Purchaser receives credit and Seller is charged pursuant to this Paragraph. Seller and Purchaser agree to adjust, as of 11:59 p.m. on cooperate in the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits calculation and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings reporting of all said meters to be performed not more than five closing prorations at least two (52) business days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or 15.2 All basic rent collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to shall be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" prorated as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property12.01 a.m.
Appears in 1 contract
Prorations. (a) Seller Sellers and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with Section 10.4(bcollected Rentals (subject to the terms of (b) below.
(ii) Cash Security Deposits ), expenses under the Permitted Exceptions, and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges expenses under Service Contracts assumed by Purchaser at Closing payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters the owner of the Property (on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuationa 365 day year, actual days elapsed). If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller Sellers will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller Sellers and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) Business Days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSellers and delivered to the Title Company for purposes of making the -33- preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller Sellers (if the preliminary prorations result in a net credit to SellerSellers) or by Seller Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller Sellers and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's Sellers’ insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller Sellers will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be made by Purchaser and Sellers on or before November 30, 2016 (herein, the “Final Proration Date”). The provisions of this Section 10.4(a) 10.4 will survive the Closing until the Final Proration Date has occurred, and in the event any items subject to proration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4. Notwithstanding anything to the contrary provided in this Agreement including, but not limited to, this Section 10.4(a), Sellers and Purchaser hereby agree to use the following, estimated 2016 real estate taxes and assessments for twelve purposes of the proration of same at Closing: (12x) months.
(b) Purchaser will receive a credit on the Closing Statement $470,000.00 for the prorated amount Shoppes at Parkland Real Property and the Shoppes at Parkland Improvements and (as of y) $180,000.00 for the Proration Time) of all Rental previously paid to or collected by Seller University Palms Real Property and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyUniversity Palms Improvements.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Preferred Apartment Communities Inc)
Prorations. 12.1. ▇▇▇ts (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security, pet and other deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; fuels; prepaid on-site operating expenses; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected are not to assume.
(v) Real estate taxes due and payable for the calendar year. If until after the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for basic rent for any period prior to and including the Closing Date shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within thirty (30) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Seller and PurchaserPurchaser shall pay such Post-Closing Receipt to Seller. No prorations will be made in relation Purchaser shall use its best efforts to insurance premiumscollect all amounts which, and Seller's insurance policies will not be assigned to Purchaserupon collection, would constitute Post-Closing Receipts hereunder. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, and Purchaser will be obligated shall pay to make its own arrangements for any deposits with Seller said additional Post-Closing Receipts and, if the utility providersadditional funds owing to Seller exceed $1,000 the cost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. 13.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding date prior the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. Seller shall use good faith efforts to deliver any information regarding special assessments to Purchaser within fifteen (15) days of Seller's receipt of such information. If the "PRORATION TIME")amount of any of the items to be prorated is not then ascertainable, the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to adjustments thereof shall be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Propertybasis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller will cause readings has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties, but only to the extent the performance of all said meters to be performed not more than five (5) days such services occurs prior to the Closing Date, and a per diem adjustment . Seller shall deliver to Purchaser all such real estate tax consulting contracts within thirty (30) days of the date hereof. The fees or commissions payable to said consultants (if any) shall be made for treated as a portion of the days between real estate tax liability to be pro-rated as of the meter reading date Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date based so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement shall be deemed final as prorated on the Closing Date, except as to (a) delinquent rent referred to in Paragraph 13.2 below and (b) real and personal property taxes which shall be reprorated on December 1, 1997 based upon the then most recent meter readingrecently ascertainable tax information.
13.2. For a period of ninety (90) days following the Closing Date, all basic rent paid following the Closing Date by any tenant of the Properties who is indebted under a Lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. On the last business day of each month following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and the cost of performing Seller's audit. After the Closing, in no event shall Seller attempt to evict a tenant through any manner. Paragraph 13.2 of this Agreement shall survive the Closing and the delivery and recording of the deed.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(ivb) Amounts payable under The Seller stipulates that there is full and adequate consideration for the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assumelicense herein granted.
(vc) Real estate taxes Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and payable within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment use of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, such listings or advertising subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation then Purchaser shall be made, and Seller agrees responsible to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior same subsequent to the Closing Date (but no such payment shall accrue to the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed benefit of the Seller or constitute a credit against a debt otherwise owed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthssaid third party).
(be) Purchaser will receive a credit Purchaser's temporary license set forth in this paragraph shall expire on the Closing Statement date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the prorated amount owner of said rights a license fee equal to One Hundred Dollars (as $100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the Proration Time) of all Rental previously paid state where such Property is located to prevent such unauthorized use or collected to recover any damages authorized by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertylaws.
Appears in 1 contract
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 85)
Prorations. 4.8.1. All collected rents and other income (aincluding pet deposits and advance rentals) Seller and Purchaser agree all operating expenses with respect to adjustthe Property for the month in which the Closing occurs, and real estate and personal property taxes and other assessments with respect to the Property for the year in which Closing occurs, shall be prorated as of 11:59 p.m. on the close of business of the day immediately preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable Date. Rent collected by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters Purchaser on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to or after the Closing Date, and a per diem adjustment shall be made applied first to any current rent due, with any additional amount applied then to pay any arrearages (in inverse order/most recent arrearages paid first) and any such amounts owed to Seller to be remitted to Seller within ten (10) days of receipt. Purchaser shall include in Purchaser’s rent billing statements to tenants, for a period of one (1) year after the days between Closing, a statement indicating such tenant’s corresponding arrearages, if any, with respect to any unpaid rents attributable to the meter reading date and period prior to the Closing. All rent collected by the Seller prior to the Closing, for rental periods subsequent to the Closing Date (i.e., prepaid rent), shall be paid to Purchaser at Closing. If the amount of any item to be adjusted is not ascertainable on the Closing Date, the item shall be prorated by the Purchaser and Seller based on the most recent meter readingbest available information. Those items shall be reprorated as promptly after the Closing as possible. Any errors or omissions in computing the prorations at the Closing shall be corrected promptly. The obligation to reprorate shall survive for a period of eight (8) months after the Closing. Any payments due as a result of reproration shall be paid within ten (10) days of the reproration.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year4.8.2. If the Closing Date shall occur occurs before the tax rate ▇▇▇▇ for the year of closing is fixedavailable, the apportionment of real estate taxes shall be upon prorated using the basis taxes paid in the prior year. After the tax ▇▇▇▇ is available, the taxes shall be reprorated at the request of the Seller or Purchaser based on the tax rate ▇▇▇▇ for the preceding year applied to of closing. Any amounts due as a result of the latest assessed valuationreproration shall be paid within ten (10) days of the reproration. IfSpecial assessment liens, subsequent to the Closing Dateif any, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred charge or to be incurred in connection with any real estate tax appeals lien on the Property or that are pending due and payable at the time of ClosingClosing shall be paid by Seller.
4.8.3. To the extent possible, Purchaser shall be responsible for arranging all utility service and insurance coverage for the Project in its own name commencing as of 12:01 a.m. on the Closing Date. Seller will shall be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited responsible for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser utility charges accrued prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, and Seller shall be signed by Purchaser receive a refund of all utility deposits and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closinginsurance premiums. If the actual amounts of the Proration Items are a change in utility service cannot known as of be effected on the Closing Date, the prorations utility charges will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, estimated and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertySection 4.8.1.
Appears in 1 contract
Sources: Sale Agreement (America First Apartment Investors Inc)
Prorations. (a) Rents, including, without limitation, percentage rents, if any, and any additional charges and expenses payable by tenants under Leases (including, without limitation, the Rooftop Lease and the Parking Lease), all as and when actually collected, real property taxes and assessments due and payable in the year in which the closing occurs (without regard to the date levied, assessed or accrued and without regard to any fiscal year; and real property taxes, and assessments for annual taxes (but not special assessments) shall be prorated based upon 110% of the most recent ascertainable ▇▇▇▇ and promptly reprorated upon receipt of an actual ▇▇▇▇); water, sewer and utility charges; amounts payable under any Service Contracts or other agreements or documents; annual permits and/or inspection fees (calculated on the basis of the period covered); common area maintenance charges and amounts payable to the Hotel Owner or received from the Hotel Owner under the REA and other recorded documents; vending machine and paper recycling income, the current payment of the Nicollet Mall Special Assessment; and any other income and expenses of the operation and maintenance of the Property (including, without limitation, expenses prepaid by Seller and Purchaser agree with respect to adjustwhich Seller shall receive a credit at Closing in the amount of the prepaid portion thereof), shall all be prorated as of 11:59 p.m. on the day preceding immediately prior to Closing (i.e., Buyer is entitled to the income and responsible for the expenses of the day of Closing), on the basis of a three hundred sixty-five (365) day year; provided, however, that any real estate taxes, including the current payments of the Nicollet Mall Special Assessment, payable directly by tenants to the governing taxing authorities or reimbursable by tenants after Closing shall not be prorated. Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions, as provided in Section 7.3. All rents and other sums collected after the Closing Date shall be applied and paid as provided in this Section 8.5(a). Any payment received after Closing shall be deemed a payment due after the Closing until the tenant or other payor is current in its post-Closing obligations, and then such payments shall be paid to Seller to the extent of any rent or other sums owing to Seller for periods prior to Closing. Buyer shall use reasonable efforts to collect such rents and other sums owing to Seller. Seller retains the right to collect any such rents and other sums from tenants and other payors after Closing; provided, however, that Seller shall have no right to evict any tenant or to exercise any other landlord-tenant remedy other than to ▇▇▇ for collection. Without intending to limit the generality of the foregoing, Buyer and Seller acknowledge and agree that certain rental payments by the tenants under the Parking Lease and Rooftop Lease are collected monthly in arrears and, upon receipt of such payments after Closing, such sums shall be applied toward the period to which they properly pertain, and shall be prorated between Seller and Buyer, with the party receiving same promptly paying to the other party such other party’s share thereof. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the calendar year in which the Closing occurs shall be prepared by Buyer with the cooperation of Seller within ninety (90) days following the "PRORATION TIME"end of such year in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(a). For those Leases in which tenants pay a proportionate share of taxes (including the current payments of the Nicollet Mall Special Assessment), the following (collectivelyinsurance charges or other expenses over a base year amount or expense stop, the "PRORATION ITEMS"):
proration between the parties of the income received from tenants over such base year amount or expense stop shall be calculated based on the total amount of such expenses for the Property incurred by both Seller and Buyer for the entire calendar year, rather than on the amount of such expenses actually incurred by each party for such year, in order to enable the parties to determine if the base year amount or expense stop for such year is exceeded. Such income as so calculated shall be prorated between the parties based on the number of days each party owned the Property during such year and otherwise in accordance with this Section 8.5(a). By way of illustration but without limiting the foregoing, if: (i) Rentalsthe Closing was to occur on June 1, 2006, (ii) during Seller’s period of ownership of the Property during the year 2006 (151 days), Seller incurred expenses of $450,000, (iii) during Buyer’s period of ownership of the Property during the year 2006 (214 days), Buyer incurred expenses of $500,000, (iv) total expenses for such year recovered from tenants under Leases is $400,000 (e.g., $950,000 total expenses minus a total base year amount of $550,000), then Seller would be entitled to $165,479.45 of such income ($400,000/365 days = $1,095.89 per diem multiplied by 151 days) and Buyer would be entitled to $234,520.55 of such income ($1,095.89 per diem multiplied by 214 days), regardless of the actual amount of expenses actually incurred by each party (which would have instead resulted in Seller receiving $189,473.68 of such income and Buyer receiving $210,526.32 of such income). For Leases which do not have a base year amount or expense stop, the proration between the parties of income received from tenants from reconciliations of expenses under the Leases shall be calculated based on the expenses actually incurred by each party for such year and each party’s period of ownership of the Property, and otherwise in accordance with this Section 10.4(b8.5(a). In addition to the foregoing, on or before the end of the ninety (90) below.
(ii) Cash Security Deposits and any prepaid rentsday period described in this paragraph above, together Buyer also shall prepare with interest the cooperation of Seller all other annual reconciliations required to be paid thereon.
(iii) Utility charges payable by Seller, in connection with the Property including, without limitation, electricityannual reconciliations under the Parking Lease, water charges Rooftop Lease and sewer charges. If there are meters REA, as required thereby, and the parties shall reprorate the amounts payable thereunder (a) with respect to the REA, in the same manner as the reproration of rent under the Leases, based on the Real expenses actually incurred by Seller and Buyer under the REA for such year and each party’s respective period of ownership of the Property, and (b) with respect to the Parking Lease and the Rooftop Lease, based on the actual gross revenue of the tenants collected by the tenants during the Seller’s and Buyer’s respective periods of Ownership of the Property. Buyer shall promptly reimburse Seller will cause readings for Seller’s prorated share of all said meters expenses that are prepaid by Seller before Closing for which Buyer receives reimbursement from a third party after Closing. As an example (and without limitation), Seller incurs obligations each month and then bills the Hotel Owner for the Hotel Owner’s share; the Hotel Owner then reimburses Seller. In the event Buyer receives payment(s) from the Hotel Owner after Closing attributable to be performed not more than five expenses incurred and paid by Seller prior to Closing, Buyer shall promptly forward to Seller such amounts received from the Hotel Owner. The amount of any cash security deposits held by Seller under Leases (5) days plus any interest thereon accrued prior to the Closing Datedate of Closing, and a per diem adjustment if required by law or contract) shall be made credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits). Seller shall receive credits at Closing for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts amount of any utility or other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied deposits with respect to the latest assessed valuation. If, subsequent Property to the Closing Date, real estate taxes (by reason of change in either assessment extent such deposits are assignable to Buyer and are so assigned or rate or for any other reason) for the Real Property and Improvements should be determined credited to Buyer at Closing. Buyer shall cause all utilities to be higher or lower than those that are apportioned, a new computation shall be made, transferred into Buyer’s name and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending account at the time of Closing. As soon as reasonably practicable after Closing, Seller will be charged shall transfer to Buyer all non-cash security deposits and credited deliver to Buyer all necessary consents to such transfers. Between the date of Closing and until such transfer takes place, Seller agrees to hold any such non-cash security deposit in trust for the amounts benefit of all Buyer. Seller and Buyer hereby agree that if any of the Proration Items relating to the period up to the Proration Time, aforesaid prorations and Purchaser will credits cannot be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth calculated accurately on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (or in the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be case of rents or other charges that are paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) arrears or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing are otherwise not yet ascertainable or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known payable as of the Closing Date, then the prorations will same shall be made calculated as soon as reasonably practicable after the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the other party within thirty (30) days thereafter. Any amounts not paid within such thirty (30) day period shall bear interest from the date actually received by the payor until paid at the rate of ten percent (10%) per annum. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the payments received by such party from tenants and other payors from and after Closing on and to the basis manner in which such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice. Any tax refund received by Buyer or Seller after Closing (net of third party costs incurred in obtaining such refund) shall be paid to the party(ies) who previously paid or were responsible for such taxes, whether it be Seller, Buyer, or tenants under the Leases, and shall be prorated appropriately.
(b) The cost of the best evidence then availableTitle Policy shall be split equally between Buyer and Seller. Payment of all transfer taxes payable in connection with recording the deed shall be split equally between Buyer and Seller; thereafter, when actual figures are received, re-prorations will be made on the basis Buyer shall pay all other recording fees. Any closing escrow fees and other closing charges of the actual figures, and a final cash settlement will Title Company for the sale transactions shall be made split equally between Seller and PurchaserBuyer. No prorations Seller shall be solely responsible for any and all costs and expenses pertaining to the assumption of the First Mortgage Loan including, without limitation, loan title policies, lender’s legal fees, lender’s escrow and closing fees and all intangibles and mortgage taxes. The parties will execute and deliver any required transfer or other similar tax declarations to the appropriate governmental entity at Closing. At Closing, Seller shall reimburse Buyer for the cost of a Phase I environmental report in an amount not to exceed $3,000.00.
(c) The total annual percentage rent payable under each Lease for the lease year in which the Closing occurs shall be made in relation to insurance premiumsprorated between Seller and Buyer based solely on the respective number of days of ownership of the Property by Seller and Buyer during such year, regardless of what portion of sales occur during the different parts of such year. At Closing, the parties shall estimate the total percentage rent payable under each Lease for the applicable lease year based on the percentage rent paid under such Lease for the prior year, and Seller's insurance policies will not be assigned to PurchaserSeller shall receive a credit at Closing for its prorata share thereof. Final readings and Once the final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as amount of percentage rent is determined, the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providersparties shall reprorate, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. party owing the other shall promptly remit the amount owed no later than fifteen (15) days after the reproration is determined.
(d) The provisions of this Section 10.4(a) will 8.5 shall survive the Closing for twelve (12) monthsClosing.
(be) The obligations of Buyer under this Agreement are subject to satisfaction or written waiver of Buyer of each of the following conditions or requirements on or before Closing:
(1) Seller shall have delivered all documents required to be delivered at Closing under Article VIII;
(2) Buyer shall not have terminated this Agreement pursuant to Section 3.2, Section 4.1(c), Article VI or Section 8.4(c);
(3) The Title Policy shall have been issued and marked down to Closing, subject only to Conditions of Title in a so-called “New York” style closing;
(4) Purchaser will receive a credit on shall have received the Closing Statement for the prorated amount REA Estoppel; and
(as of the Proration Time5) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for The Lender under the LeaseFirst Mortgage Loan shall have approved, in writing, to the extent consent is required, the same exceeds assumption of the First Mortgage Loan, pursuant to documents reasonably acceptable to Seller, Buyer and their respective counsel, provided Buyer has performed all of its obligations hereunder with respect thereto. In the event that all of the foregoing provisions of this Section 8.5(e) are not satisfied in all material respects unless otherwise waiver by Buyer, and Seller does not request an adjournment of the Closing to comply such adjournment not to exceed ten (10) days, and Buyer elects in writing to terminate this Agreement, then the Deposit shall be promptly delivered to Buyer by Title Company and, upon receipt thereof by Buyer, neither party shall have any expense stop specified in such Lease)further claim against the other by reason of this Agreement, retroactive rentals, all administrative charges, utility charges, tenant or real propertyexcept as otherwise specifically provided herein.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents [i.e. unpaid on the Closing Date], but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); parking fees; service contracts described on Exhibit H; water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e., adjusted for all tenant's liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days date prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the tax rate for most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below, and except as provided below in this section. The parties agree to make such post-closing readjustments as may be required due to errors and omissions in the preceding year applied prorations. At any time prior to October 31, 1997, Purchaser, at Purchaser's cost, may conduct an audit, at reasonable times and upon reasonable advance notice to Seller, of Seller's books and records to verify the accuracy of the prorations and readjustments to the latest assessed valuationprorations required under this Paragraph.
12.2. IfAll rent paid following the Closing Date by any tenant of the Property who is indebted under a lease for basic rent for any period prior to the Closing Date after the payment to Purchaser of all current rent and any past due rent owed to Purchaser shall be deemed a "Post-Closing Receipt". At Closing, subsequent Seller shall provide Purchaser with a statement of all delinquent rentals as of the Closing. Within fifteen (15) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use commercially reasonable efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder but shall have no obligation to bring legal action. If Purchaser expends funds to collect rent due prior to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation Purchaser shall be made, and Seller agrees to pay Purchaser reimbursed its collection expenses from any increase shown by such recomputation and vice versadelinquent rent collected. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and Within 120 days after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in which event no proration will be made at accordance with the Closing with respect to utility billsterms hereof. Seller will be entitled retains the right, at Seller's cost, to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable advance notice to Purchaser, of Purchaser's books and records to verify the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with accuracy of the utility providersPost-Closing Receipts reconciliation statement. The provisions Paragraph 12 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) monthsand the delivery and recording of the deed.
12.3. Purchaser shall receive at Closing a credit equal to the amount of any unsatisfied obligations for outstanding tenant improvement and leasing commission obligations set forth in Exhibit N which are identified as Seller's obligation (b"Seller's Pre-Existing Obligations"). Purchaser agrees to assume (without a credit from Seller) the payment of those outstanding tenant improvement and leasing commission obligations set forth in Exhibit N which are identified as Purchaser's obligation ("Purchaser's Pre-Existing Obligations"). To the extent Seller pays any amounts toward Purchaser's Pre-Existing Obligations prior to Closing and provides evidence of such payment satisfactory to Purchaser will then Seller shall receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by from Purchaser therefor. Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentalshall receive a credit, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided in Paragraph 25. Purchaser shall assume at Closing all third party construction contracts for under the Leaseperformance of tenant improvement work and leasing commission agreements in connection with those leases (i) which give rise to Seller's Pre-Existing Obligations, (ii) which give rise to Purchaser's Pre-Existing Obligations and (iii) for which Purchaser is assuming the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyobligations pursuant to Paragraph 25 herein.
Appears in 1 contract
Prorations. 11.1 Subject to the provisions of this Paragraph 11, all revenues and expenses relating to the Property shall be prorated as of the Close of Escrow. Expenses relating to the Property, including without limitation, real property taxes and assessments, utility charges and the like, shall be prorated on an accrual basis, and revenues relating to the Property, including, without limitation, rentals and other income (aincluding, without limitation, common area charges and operating cost pass throughs) Seller shall be prorated on a cash received basis, subject to the provisions set forth in Paragraph 11.5 below. It is understood that Buyer shall not be entitled to any income or revenue, and Purchaser agree shall not be obligated for costs and expenses, under the CRG Agreements (as defined in Paragraph 22.22 below) (except as may be provided to adjust, the contrary in the Final CRG Lease). Such proration shall be made as of 11:59 p.m. Pacific Standard Time on the day immediately preceding the Closing Date (the "PRORATION TIME"“Proration Time”). Buyer shall be responsible for all real estate tax reassessment and increase as a result of the transactions contemplated under this Agreement. Seller shall be entitled to all tax refunds for periods prior to the Close of Escrow, and Buyer shall remit the same to Seller promptly after receipt; provided, however, that Buyer shall first deduct therefrom any portions thereof which are due to any of the tenants under the Leases and shall remit the same to such tenants. All monthly prorations shall be calculated on actual days of the applicable month and all annual prorations shall be calculated based on a 365-day year. Prior to the Closing Date, Seller and Buyer shall agree upon a schedule of expenses and prorations (“Proration and Expense Schedule”). If any prorations, apportionments or computations made under this Paragraph 11 shall require final adjustment because the information is unavailable at the Proration Time, then the parties shall make the appropriate adjustments promptly when accurate information becomes available and either party hereto shall be entitled to an adjustment to correct the same. Such adjustments shall be made as soon as complete and accurate information becomes available, but in all events no later than April 30, 2008 (the “Survival Cut-Off Date”). Any corrected adjustment or proration shall be paid promptly in cash to the party entitled thereto. Except as otherwise set forth above in this Paragraph 11.1, the following (collectively, obligations of the "PRORATION ITEMS"):
(i) Rentals, in accordance parties under this Paragraph 11 shall survive the Close of Escrow through the Survival Cut-Off Date and shall not be merged with Section 10.4(b) the Deed until the expiration of the Survival Cut-Off Date. The foregoing terms of this Paragraph 11.1 are subject to the terms of Paragraphs 11.2 through 11.5 below.
11.2 The leasing commissions, attorneys’ fees in connection with leasing, and improvement allowances/reimbursements/expenditures set forth on Schedule 11.2 attached hereto shall be the sole responsibility of Seller and shall be paid by Seller at or prior to, or an appropriate credit therefor shall be provided by Seller to Buyer upon, the Close of Escrow; upon such payment and/or credit, Seller shall have no further obligations whatsoever with respect to the amounts and items set forth in such Schedule 11.2. Notwithstanding the foregoing or anything to the contrary, (iia) Cash Security Deposits the tenant improvement allowance in the amount of $330,001.42 relating to the space leased by C▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co. (the “C▇▇▇▇▇▇ Allowance”) shall be Buyer’s sole responsibility (and Seller shall have no obligation with respect thereto), and any prepaid rentsportion of such amount paid by Seller prior to the Close of Escrow (without obligation to do so) shall be credited to Seller upon the Close of Escrow, together and (b) all other leasing commissions, attorneys’ fees in connection with interest required leasing, and improvement allowances/reimbursements/expenditures for any Leases or Lease amendments, whether with respect to base lease term (for Leases or Lease amendments executed after the date hereof), future expansions, renewals, or otherwise, shall be Buyer’s sole responsibility (and Seller shall have no obligation with respect thereto), and any such amounts paid thereonby Seller relating thereto (without obligation to do so) shall be credited to Seller upon the Close of Escrow; provided, however, Buyer shall not be responsible for leasing commissions, attorneys’ fees in connection with leasing, and improvement allowances/reimbursements/expenditures relating to the CRG Agreements or any space covered solely by the Final CRG Lease (except as may be set forth to the contrary in the Final CRG Lease).
(iii) Utility charges payable by Seller11.3 As of the Close of Escrow, Seller shall not be responsible for any charges, fees, assessments or other amounts relating to utilities, including, without limitation, those for sewer, electricity, water charges and sewer charges. If there gas (the “Utility Charges”), which are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration TimeClosing Date. The estimated Closing prorations Buyer shall be set forth on a preliminary closing statement responsible to have the applicable utility companies switch service into Buyer’s name at Closing and shall be prepared by solely responsible to pay all Utility Charges accruing after the Close of Escrow. Without limiting the foregoing, Seller may instruct any utility company that Seller no longer owns the Property and submitted to Purchaser shall not be responsible for Utility Charges accruing after the Close of Escrow. Additionally, it is understood that Seller, prior to the Closing Date Close of Escrow, may b▇▇▇ Tenants for electricity/power charges that may not be fully reimbursed to Seller by such Tenants as of the Close of Escrow (the “Utility B▇▇▇ Amounts”). Buyer shall b▇▇▇ and use reasonable efforts to collect any such Utility B▇▇▇ Amounts in the ordinary course of business (and such Utility B▇▇▇ Amounts shall not be forgiven, reduced, deferred, delayed or suspended by Buyer) through the Survival Cut-Off Date, but shall not be obligated to engage a collection agency or take legal action to collect any such amounts. Buyer shall be entitled to retain ten percent (10%) of the Utility B▇▇▇ Amounts that it collects for delivery to Seller hereunder. Seller shall have the right to seek collection of any Utility B▇▇▇ Amounts applicable to any period before the Close of Escrow from any Tenants, but shall not have the right to evict Tenants or to terminate or threaten to terminate any such Tenant’s Lease or right to possession of its premises. Any Utility B▇▇▇ Amounts actually collected by Buyer to which Seller is entitled hereunder shall be promptly delivered by Buyer to Seller (after deducting the 10% set forth above to which Buyer is entitled).
11.4 Buyer shall be credited and Seller shall be charged with (but Seller shall retain as its sole and separate property, notwithstanding any contrary provision in this Agreement) any security deposits and advanced rentals in the nature of security deposits made by the lessees/licensees (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to SellerTenants”) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the LeaseLeases, except to the extent the same exceeds any expense stop specified have been applied in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyaccordance with the terms of said Leases (subject to the provisions of Paragraphs 21.3
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents except as set forth below, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding Closing Date, and credited to the balance of the cash due at Closing. Assessments payable in installments which are due subsequent to the Closing Date (shall be paid by Purchaser. If the "PRORATION TIME")amount of any of the items to be prorated is not then ascertainable, the following (collectively, adjustments thereof shall be on the "PRORATION ITEMS"):
(i) Rentals, basis of the most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in accordance with Section 10.4(b) Paragraph 12.2 below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required 12.2. Seller shall receive a credit at Closing for an amount equal to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings 50% of all said meters to be performed Rents which are delinquent for not more than five (5) 30 days at Closing. All other Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that the Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, and a per diem adjustment provided that Seller shall be made not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the days between right subsequent to Closing to seek (by legal action or otherwise) the meter reading date and collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date based on and said Lease is not assigned to the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearPurchaser. If the Closing Date shall occur before the tax rate is fixedFurthermore, the apportionment Seller shall not have the right to retain any portion of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (any security deposit held by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the prorations result tenant is delinquent in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known paying rent as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. (a) Seller Except as otherwise provided herein, rent, receivables, other amounts due KEM, and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges all amounts payable by SellerKEM such as property taxes, including, without limitation, electricity, water charges accounts payable and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment other expenses shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known prorated as of the Closing Date. Seller and/or KEM, as applicable, shall pay or cause to be paid such amounts or an appropriate adjustment shall be made in the prorations cash received by Seller at Closing or Seller and/or KEM shall cause sufficient working capital to remain in the accounts of KEM to pay such items when due. Any monies held in bank accounts of the KEM as of the Closing Date in excess of the amounts needed to satisfy Seller’s or KEM’s obligations under the preceding sentence, will be distributed by KEM to Seller through Escrow on the Closing Date. Prorations and adjustments contemplated under this Section 21.2 shall be subject to post-Closing adjustments as necessary to reflect later relevant material information not available at Closing (including any material liabilities which were to be prorated hereunder discovered after Closing but relating to the period prior to or including the Closing and any material adjustments required pursuant to Section 21.4(f), below) and to correct any material errors made at Closing on with respect to such apportionments, and the basis Party receiving more than it was entitled to hereunder (the “Reimbursing Party”) shall reimburse the other Party (the “Reimbursed Party”) in the amount of such over payment within thirty (30) days after receiving written demand thereof from the Reimbursed Party. Such written demand by the Reimbursed Party shall be accompanied by reasonable proof of the best evidence then available; thereafterReimbursed Party’s right to payment. Both the Reimbursed Party and Reimbursing Party agree to cooperate in good faith to resolve any disputes regarding such adjustments. Notwithstanding the foregoing, when actual figures are received, resuch apportionments shall be deemed final and not subject to further post-prorations Closing adjustment if no adjustments have been requested within six months (6) months after the Closing Date. Buyer and Seller further agree that (a) all rent prepaid by the County of Riverside under that certain Communications Tower Site Lease Agreement shall be transferred by KEM to Seller prior to Closing and will be made on retained by Seller, (b) the basis of the actual figuresSettlement Agreement among KEM, Edison Construction, Inc. and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateCorporation, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providersdated January 15, 2015, and Purchaser will the rights thereunder are expressly excluded from the KEM Assets and shall be obligated assigned and transferred to make its own arrangements for Seller or EMMR at Closing pursuant to the Assignment of Contracts, and (c) all rent paid to KEM by FPN under the FPN Lease shall be retained by KEM at Closing without proration and not distributed to Seller. For the purposes of Sections 21.2 and 2.4, any deposits with information, adjustment, error or liability resulting in an expenditure or change of more than five thousand dollars ($5,000), individually or in the utility providersaggregate, shall be deemed “material”. Furthermore, the Burn Pit Holdback and Transformer Holdback shall be retained in Escrow at Closing and distributed pursuant to the terms of Section 21.11 below. The provisions of this Section 10.4(a) will 21.2 shall expressly survive the Closing for twelve a period of eighteen (1218) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6%; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for basic rent for any period prior to and including the Closing Date shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Seller and PurchaserPurchaser shall pay such Post-Closing Receipt to Seller. No prorations will be made in relation Purchaser shall use its best efforts to insurance premiumscollect all amounts which, and Seller's insurance policies will not be assigned to Purchaserupon collection, would constitute Post-Closing Receipts hereunder. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. 16.1. Rents (aincluding rent under the Ground Lease) Seller and Purchaser agree to adjust(exclusive of delinquent rents, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); interest, together costs and fees accruing under the Loan Documents; water and other utility charges; fuels; prepaid operating expenses; management fees as provided in the management agreement with interest required to be Insignia; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all Tenants' liabilities, if any, for such items); operating expenses paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there Seller which are meters on reimbursable by the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days Tenants for the period prior to the Closing Date, and a per diem adjustment less any amount previously paid by the Tenants shall be made credited to Seller; unpaid operating expenses for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not period prior to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before be prorated on a "net" basis, as set forth above; and all other items of expense and income shall be adjusted ratably as of 12:01 a.m. on January 1, 1996 (the tax rate "Proration Date"), and credited to the balance of the cash due at Closing. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due prior to the Closing Date shall be paid by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the most recent ascertainable data and if the 1995 real estate tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the 1995 tax bill prior to the contest (adjus▇▇▇, if necessary, to reflect 100% of the assessed value and taxes rather than 85%), shall be the most recent data for 1996 and (i) Purchaser agrees to re-prorate such amount as it relates to the 1996 proration to the extent the 1995 tax contest is successful and (ii) Seller agrees to re-prorate such amount as it relates to the 1996 proration to the extent the 1995 tax contest is unsuccessful. Seller will receive a credit for any balances in escrow accounts established pursuant to the Loan Documents and acknowledged in writing by Lender. All prorations will be final except as to delinquent rent referred to in Paragraph 16.2 below and as provided in Paragraphs 16.3, 16.4 and 16.5. Notwithstanding the terms and provisions of Paragraph 16.2 below, Purchaser acknowledges that the Government pays rent under the U. S. Government Lease for Real Property No. GS-04B-15730 dated August 5, 1977, as amended (the "G.S.A. Lease"), in arrears. Upon receipt by Purchaser, Purchaser shall pay over to Seller Seller's pro rata share of the rent paid by the Government for the month in which the Closing occurs. Notwithstanding anything contained herein to the contrary, Purchaser's obligation to pay such funds to Seller as set forth more fully in this Paragraph 16.1 shall survive the Closing and the recording of the Deed.
16.2. Except as set forth in the second to the last sentence of Section 16.1 above, all basic rent paid following the Closing Date by any tenant of the Property who is indebted under a Lease for basic rent for any period prior to the Proration Date in an amount greater than the amount of all current basic rent owed by said Tenant to Purchaser shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 180 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 150 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Paragraph 16.2 of this Agreement shall survive the Closing and the delivery and recording of the deed.
16.3. Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Seller is retaining the following rights, none of which are being conveyed, assigned or transferred to Purchaser pursuant to this Agreement or any documents executed by Seller in connection herewith. All of the items set forth in this Section 16.3 shall survive the Closing and the recording of the Deed.
16.3.1. Seller has advised Purchaser that Seller has protested the real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property for calendar years 1991, 1992, 1993, 1994 and Improvements should be determined 1995. All refunds in connection with such tax protests remain the property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the event any such refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees, at no cost or expense to Purchaser, to execute any documents reasonably requested by Seller, in connection with such tax protests.
16.3.2. Seller has advised Purchaser that Seller has applied to the U.S. Olympic Committee to receive tickets to the 1996 Olympics to be higher held in Atlanta, Georgia and that the application for the tickets was made in the name of the Property. The tickets assigned to the Property are set forth on Exhibit V attached hereto and made a part hereof. All tickets shall remain the property of Seller and are not being assigned, transferred or lower than those that conveyed to Purchaser. If any such tickets are apportioneddelivered to Purchaser, a new computation shall be madePurchaser agrees to promptly deliver such tickets to Seller. Purchaser agrees, and at no cost or expense to Purchaser, to execute any documents reasonably requested by Seller, in connection with the foregoing tickets.
16.4. Seller hereby agrees to pay and discharge the lien of all charges for real estate taxes for 1995 and prior years of Seller's ownership of the Fee Property. The provisions of the foregoing sentence shall survive the Closing and delivery and recording of the Deed. Notwithstanding anything contained herein to the contrary, on the Closing Date, Seller shall establish an escrow (the "Real Estate Tax Escrow"), pursuant to which Seller shall deposit the following sums into escrow to be held by Escrowee and to be governed by the terms of an escrow agreement, the form of which shall be agreed upon by Seller and Purchaser any increase shown prior to the expiration of the Inspection Period:
(a) that portion of the refunds actually received for real estate taxes due from the City of Atlanta and Fulton County, Georgia on accoun▇ ▇▇ ▇he tax appeals filed for the calendar years 1991, 1992 and 1993 necessary to reconcile real estate taxes paid by such recomputation Tenants, but only with respect to those Tenants entitled to refunds under their respective Leases and vice versa. Purchaser shall, at Closing, assume all also deducting therefrom Seller's estimated third party costs and expenses incurred or to be incurred in connection with the tax appeal filed for such calendar years (the "1991-93 Amount"); provided, however, that Seller shall promptly deposit into the Real Estate Tax Escrow any refund received subsequent to the Closing Date on account of the refunds for real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited taxes for the amounts of all calendar years 1991 and 1992 to the Real Estate Tax Escrow less estimated third party costs and expenses incurred or to be incurred in connection with the tax appeal for such calendar year. The provisions of the Proration Items relating foregoing sentence shall survive the Closing and recording of the Deed; plus
(b) the greater of: (i) the difference between the amount of 1994 and 1995 real estate taxes which would have been due on the Property, as previously assessed if no tax appeal had been filed for each such calendar year and the actual amount of real estate taxes paid for the calendar years 1994 and 1995; and (ii) the amount necessary to reconcile real estate taxes paid by Tenants for calendar years 1994 and 1995, but only with respect to those Tenants entitled to refunds under their respective Leases and also deducting therefrom Seller's estimated third party costs and expenses incurred or to be incurred in connection with the tax appeal filed for such calendar years (the "1994-95 Amount").
16.4.1. The 1991-93 Amount shall be disbursed:
(a) Directly to Tenants under existing Leases as indicated on the Rent Roll attached hereto as Exhibit T upon the reconciliation date set forth for such Tenant under its Lease, to the period up extent such Tenant is entitled to the Proration Time, and Purchaser will be charged and credited for all its pro rata share of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on 1991-93 Amount, if any, as evidenced by a preliminary closing statement to be reconciliation prepared by Seller Purchaser and submitted reasonably acceptable to Purchaser Seller;
(b) Directly to Tenants under Leases which terminated prior to the Closing Date Date, to the extent such Tenant is entitled to its pro rata share of the 1991-93 Amount under its Lease, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller; Purchaser shall request its property manager to locate such Tenants and pay such amounts, if such Tenants exist, or Purchaser shall pay such amounts upon demand of such Tenant in accordance with the preceding sentence; and
(c) Any remaining balance of the "CLOSING STATEMENT"). The Closing Statement1991-93 Amount, once agreed upontogether with all interest earned thereon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser refunded to Seller on the first (if the prorations result in a net credit to Seller1st) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as anniversary of the Closing Date.
16.4.2. The 1994-95 Amount shall be disbursed as follows:
(a) If Seller's tax appeal for the calendar year 1994 is successful, that portion of the prorations will 1994-95 Amount attributable to the calendar year 1994 shall be made at Closing disbursed:
(i) Directly to Tenants under existing Leases as indicated on the basis Rent Roll attached hereto as Exhibit T upon the reconciliation date set forth for such Tenant under its Lease, to the extent such Tenant is entitled to its pro rata share of the best evidence then available; thereafter1994-95 Amount, when actual figures are receivedif any, re-prorations will be made on the basis of the actual figures, as evidenced by a reconciliation prepared by Purchaser and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation reasonably acceptable to insurance premiums, and Seller's insurance policies will not be assigned ;
(ii) Directly to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Tenants under Leases which terminated prior to the Closing Date, in which event no proration will be made at to the Closing with respect to utility bills. Seller will be extent such Tenant is entitled to all deposits presently its pro rata share of the 1994-95 Amount under its Lease, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller; Purchaser shall request its property manager to locate such Tenants and pay such amounts if such Tenants exist, or Purchaser shall pay such amounts upon demand of such Tenant in effect accordance with the utility providerspreceding sentence; and
(iii) Any remaining balance of that portion of the 1994-95 Amount attributable to 1994, and Purchaser will together with all interest earned thereon, shall be obligated refunded to make its own arrangements for any deposits with Seller on the utility providers. The provisions first (1st) anniversary of this Section 10.4(a) will survive the Closing for twelve (12) monthsfinal determination of the 1994 tax contest.
(b) Purchaser will receive a credit If Seller's tax appeal for the calendar year 1994 is not successful, that portion of the 1994-95 Amount attributable to 1994 shall be applied to pay the amount of 1994 real estate taxes actually assessed by the City of Atlanta and Fulton County, Georgia, respecti▇▇▇▇, and any remaining balance attributable to 1994 shall be promptly disbursed to Seller.
(c) If Seller's tax appeal for the calendar year 1995 is successful, that portion of the 1994-95 Amount attributable to 1995 shall be disbursed:
(i) Directly to Tenants under existing Leases as indicated on the Closing Statement Rent Roll attached hereto as Exhibit T upon the reconciliation date set forth for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for such Tenant under the its Lease, to the extent such Tenant is entitled to its pro rata share of the same exceeds 1994-95 Amount, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller;
(ii) Directly to Tenants under Leases which terminated prior to the Closing Date, to the extent such Tenant is entitled to its pro rata share of the 1994-95 Amount under its Lease, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller; Purchaser shall request its property manager to locate such Tenants and pay such amounts, if such Tenants exist, or Purchaser shall pay such amounts upon demand of such Tenant in accordance with the preceding sentence; and
(iii) Any remaining balance of that portion of the 1994-95 Amount attributable to 1995, together with all interest earned thereon, shall be refunded to Seller on the first (1st) anniversary of the final determination of the 1995 tax contest.
(d) If Seller's tax appeal for the calendar year 1995 is not successful, that portion of the 1994-95 Amount attributable to 1995 shall be applied to pay the amount of 1995 real estate taxes actually assessed by the City of Atlanta and Fulton County, Georgia, respecti▇▇▇▇, and any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyremaining balance attributable to 1995 shall be promptly disbursed to Seller.
Appears in 1 contract
Prorations. (a) 5.4.1 The following shall be prorated between Seller and Purchaser agree to adjust, as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (on the "PRORATION TIME"), basis of the following (collectively, actual number of days elapsed over the "PRORATION ITEMS"applicable period):
(ia) RentalsAll real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Seller be charged with or be responsible for any increase in accordance the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Section 10.4(b) belowPurchaser assuming the obligation to pay any installments due after the Closing Date).
(iib) Cash Security Deposits Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases entered into pursuant to Section 7.2.3, and other tenant charges if, as and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date) to Purchaser on the Closing Date. Seller shall deliver to Purchaser at Closing any security deposits which are held in the form of letters of credit. Rents which are delinquent as of the Closing Date shall not be prorated on the Closing Date. Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent Purchaser receives rents within one hundred twenty (120) days after the Closing Date, such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents for the month preceding the month in which the Closing occurs, third to any delinquent rents owed to Seller, with Seller's share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser and fourth to the rents that shall then be due and payable to Purchaser, Purchaser may not waive any delinquent rents nor modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller's written consent, which consent may be given or withheld in Seller's sole and absolute discretion. After such one hundred and twenty (120) day period, Seller shall not be entitled to any further rents collected by Purchaser. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any prepaid rentsother amounts to Seller (but shall not be entitled to terminate any lease or any tenant's right to possession), together which right shall include the right to continue or commence legal actions or proceedings against any tenant. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall reasonably cooperate with interest Seller in any collection efforts hereunder (but shall not be required to be paid thereonlitigate or declare a default under any Lease). With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Closing Date, Seller shall retain all rights relating thereto.
(iiic) Utility charges payable by SellerAll operating expenses.
(d) Intentionally deleted.
(e) Charges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the Assignment and Assumption of Contracts.
(f) Any prepaid items, including, without limitation, electricityfees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees.
(g) Utilities, water charges including, without limitation, telephone, steam, electricity and sewer charges. If there are meters gas, on the Real 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.
(h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assigned to Purchaser at the Closing, which shall be credited in their entirety to Seller.
(i) Personal property taxes, if any, on the basis of the fiscal year for which assessed.
(j) Permitted administrative charges, if any, on those tenants' security deposits transferred by Seller pursuant to the Assignment and Assumption of Leases.
(k) Taxes payable by Seller relating to operations of the Property, including, without limitation, business and occupancy taxes and sales taxes, if any.
(l) Such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of California subject to Section 7.2.3(a) hereof.
(a) Seller will cause readings shall be given a credit for any payments Seller shall have made as of all said meters to be performed not more than five (5) days prior to the Closing Date, in good faith and in the ordinary course of business, in respect of the capital expenditures described on Exhibit H attached hereto and made a per diem adjustment part hereof. Purchaser shall assume all liability for such capital expenditures as of the Closing.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be made for apportioned or reapportioned, as the days between the meter reading date and case may be, as soon as practicable after the Closing Date based on or the most recent meter reading.
date such error is discovered, as applicable; provided that, with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (ivb) Amounts payable under or (g), neither party shall have the Spectrasite Agreements and amounts payable under right to request apportionment or reapportionment of any such item at any time following the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
one hundred eightieth (v180th) Real estate taxes due and payable for day after the calendar yearClosing Date. If the Closing Date shall occur before a real estate or personal property tax rate or assessment is fixed for the tax rate is fixedyear in which the Closing occurs, the apportionment of real estate taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. If, subsequent to Promptly after the Closing Date, real estate taxes (by reason of change in either assessment or new tax rate or for any other reason) for assessment is fixed, the Real Property and Improvements should be determined to be higher apportionment of taxes or lower than those that are apportioned, a new computation assessments shall be made, recomputed and Seller agrees to pay Purchaser any increase shown by discrepancy resulting from such recomputation and vice versa. Purchaser shallany errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing.
5.4.3 Items to be prorated at Closing, assume all the Closing shall include a credit to Seller for costs and expenses incurred or to be incurred by Seller in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating new Leases or modifications to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and any existing Leases entered into after the Proration Time. The estimated Closing prorations shall be date hereof in accordance with the terms and conditions set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to SellerSection 7.2.3(a) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. this Agreement.
5.4.4 The provisions of this Section 10.4(a) will 5.4 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Contract of Sale (Sports Arenas Inc)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; accrued but unpaid interest on the Notes; fuels; prepaid operating expenses; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereaftermost recent ascertainable data. In addition, when actual figures are receivedPurchaser shall give Seller a credit at Closing for all escrows, re-reserves and holdbacks, held by the Lender under the Loan Documents. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for rent for any period prior to and including the Closing Date after the payment to Purchaser of all current rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Seller and PurchaserPurchaser shall pay such Post-Closing Receipt to Seller. No prorations will be made in relation Purchaser shall use its best efforts to insurance premiumscollect all amounts which, and Seller's insurance policies will not be assigned to Purchaserupon collection, would constitute Post-Closing Receipts hereunder. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series Ii)
Prorations. Rents actually collected for the calendar month in which the Closing occurs (a) Seller exclusive of Delinquent Rent, as hereinafter defined, but including prepaid rents covering a period subsequent to Closing); water and Purchaser agree other utility charges; fuels; prepaid revenues and expenses covering a period subsequent to adjust, Closing; real and personal property taxes (“Property Taxes”); and other similar revenue and expense items shall be adjusted ratably as of 11:59 p.m. P.M. Central Time on the day preceding the Closing Date (the "PRORATION TIME"“Proration Date”), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior credited or debited to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis balance of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, cash due at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged All regular and credited for the amounts of all of the Proration Items relating supplemental taxes and assessments attributable to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and the responsibility of Seller. The proration All regular and supplemental taxes and assessments attributable to the period after the Closing Date shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to responsibility of Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustment thereof shall be made at Closing on the basis of the best evidence then most recent ascertainable data. With respect to Property Taxes, if Closing occurs before the current fiscal year’s tax bills are available; thereafter, when actual figures are received, re-prorations the proration will be made on based upon the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇previous fiscal year’s tax ▇▇▇▇ and the proration shall be readjusted and settled by Seller and Purchaser within ten (10) business days after such tax ▇▇▇▇ is issued. If special assessments have been levied against the Property for utilities will improvements, then the amount of any installments which are attributable to periods on or prior to the Closing Date shall be made if possible as paid by the Seller; and the amount of installments which are attributable to periods after the Closing Date shall be paid by the Purchaser. If any charges, expenses or other items to be prorated hereunder are unavailable on the Closing Date, in which event no proration a readjustment will be made at within ten (10) business days following the Closing with respect to utility billsavailability of accurate bills and figures. Seller will be entitled shall instruct its property manager to all discontinue data entry operations in the on-site computer system for the Property (including making deposits presently in effect with of rental income) for the utility providersperiod subsequent to the close of business on December 23, 2011. Seller acknowledges that such discontinuance is intended to afford Seller and Purchaser will be obligated an opportunity to make its own arrangements for any deposits with coordinate the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as transition of the Proration Time) Property in anticipation of all Rental previously paid Closing and to or collected by complete work on prorations as set forth in this Agreement. Seller and attributable shall instruct its property manager to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over forward to Purchaser all Rental, if any, received by Seller or its designee final reports to facilitate transition planning and compilation of prorations as soon as practicable after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in discontinuing such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydata entry.
Appears in 1 contract
Sources: Agreement of Sale (Behringer Harvard Opportunity REIT II, Inc.)
Prorations. (a) The following adjustments to the Purchase Price paid hereunder shall be made between Seller and Purchaser agree and shall be prorated (as applicable) on a per diem basis up to adjust, as of 11:59 p.m. on and the day preceding immediately before the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):Date:
(i) RentalsAccrued general real estate taxes for the Property (the “Taxes”) for the year of Closing shall be prorated as of the Closing Date on the basis of the actual taxes for the year, if known, or if unknown, on the basis of the most recent ascertainable taxes, but in accordance with Section 10.4(b) beloweither case based on the maximum allowable discount for early payment. To the extent such Taxes are due and payable after Closing, Purchaser shall pay all such taxes when they become due and payable and, promptly thereafter, the parties shall re-prorate taxes with, if any amount is due, an appropriate payment from one party to the other on the basis of the amount of taxes then due and payable. Prior to or at Closing, Seller shall pay or have paid all Tax bills which are due and payable prior to or on the Closing Date and shall furnish evidence of such payment to Purchaser. Special assessments which are confirmed or become a lien prior to Closing and pending assessments for work substantially completed as of Closing shall be credited to Purchaser at Closing. Purchaser shall receive no credit for other pending special assessments.
(ii) Cash Security Deposits Jupiter Park of Commerce Association annual assessments and any prepaid rents, together with interest required to be paid thereon.dues for the year of Closing (the “Association Dues”);
(iii) Utility charges payable Charges under Contacts to the extent assigned to, and assumed by Purchaser at Closing (the “Contract Fees”); and
(iv) South Florida Water Management District General Water Use Permit No. 50-25845-W fee and Palm Beach County Wellfield Operating Permit WP-91-054 annual fee (collectively, the “Permit Fees”).
(v) The value of any fuel stored on the Premises, if any, at the price then charged by Seller’s supplier, including, without limitation, electricity, including any taxes.
(vi) water charges and sewer charges. If there are meters rents, if any, on the Real Propertybasis of the lien period for which assessed, except that if there is a water meter on the Premises, apportionment at the Closing shall be based on the last available reading, subject to adjustment after the Closing when the next reading is available.
(b) Immediately after Closing, Seller will cause readings shall make available at its offices, all records, contracts, receipts for deposits, unpaid bills, and other papers or documents which pertain to the Property together with all keys and other items, if any, used in the operation of the Property. Except as otherwise expressly set forth in this Agreement, Seller makes no representations regarding the existence or adequacy of such documents or items for use in management or operation of the Property. The foregoing shall not include the separate books, records, correspondence, and other documentation of Seller located at its offices. After the Closing, Seller shall have the right to inspect the books and records of the Property for any purpose reasonably related to Seller's prior ownership of the Property. For purposes of all said meters prorations provided for herein, Seller shall be responsible for all days up to be performed not more than five (5) days and including the day immediately prior to the Closing Date, and a per diem adjustment Purchaser shall be made responsible for the all days between the meter reading date and the Closing Date based on the most recent meter readingthereafter.
(ivc) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
Except as otherwise expressly provided in this Agreement (v) Real estate taxes due and payable including Section 25 hereof), all pro-rations provided for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes herein shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsfinal.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Prorations. (a) Seller 15.1 Water and Purchaser agree other utility charges due for the period prior to adjust, as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (the "PRORATION TIMEProration Date"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to shall be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of Regular ad valorem real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all prorated as of the Proration Items relating Date. Real Estate tax prorations shall be based on the maximum discounted rate available at Closing. Prior to Closing, Purchaser and Seller shall notify all utilities providing service to the period up to the Proration Time, and Purchaser will be charged and credited for all Property of the Proration Items relating to prospective change in ownership and that all bills for the period from and after the Proration Time. The estimated Closing prorations Date shall be set forth on a preliminary closing statement paid by Purchaser, with no interruption in service. All utility deposits, if any, may be withdrawn by and refunded to be prepared by Seller and submitted to Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, which are due prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at by Seller. Assessments, excluding regular ad valorem real estate taxes, which are due subsequent to the Closing Date shall be paid by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. If any ongoing real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the conte▇▇, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All other prorations will be made final except as to rent reconciliations referred to in Paragraphs 15.2 and 15.3 below and as provided in Paragraph 15.4.
15.2 All base rent, percentage rent and other common area maintenance, tax and insurance charges actually paid by tenants under the Leases and all other items of income actually received from the operation of the Property (all such charges other than base rent, "Additional Rent") shall be prorated as of the Proration Date. Purchaser shall receive a credit at Closing for all prepaid rent. To the extent the Leases provide for the adjustment of previously paid estimates of Additional Rent on a date after the basis Proration Date, Seller shall be entitled to receive, or shall be responsible to pay, as the case may be, its pro rata share of any such adjusted amounts which are applicable to periods ending prior to the Proration Date. Seller agrees that Seller shall promptly remit to Purchaser any rental or other payments that Seller, or any of its affiliates or agents, may receive post-Closing, except that Seller need not remit payments attributable to periods prior to the Proration Date if the tenant making such payment to Seller is current in all payments due to Purchaser for periods after the Proration Date. Purchaser shall deliver to each tenant of the best evidence then available; thereafterProperty (with a copy of each to Seller) a final reconciliation of Additional Rent due for calendar year 1996 on or before March 1, when actual figures are received1996. Purchaser shall use reasonable efforts (without any obligation to terminate leases or initiate lawsuits) to collect such Additional Rent from such tenants. On May 1, re-prorations will be made on the basis 1996, Purchaser shall provide Seller with a reconciliation of the actual figuresamount of all Additional Rent collected from or refunded to tenants for calendar year 1996, and Purchaser and Seller shall reprorate such Additional Rent as of the Proration Date, within 10 days after Purchaser's delivery to Seller of such reconciliation. Notwithstanding anything to the contrary herein, the provisions of this Paragraph shall survive the Closing.
15.3 There shall be no credit to Seller for rent or other amounts delinquent as of the Closing Date. All basic rent paid following the Closing Date by any tenant of the Property who is indebted under a final cash settlement will Lease for basic rent for any period prior to the Proration Date in an amount greater than the amount of all current basic rent owed by said tenant to Purchaser for periods on or after the Closing Date shall be made between deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, and without any obligation to terminate leases or initiate lawsuits, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 180 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 150 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and Purchasernot previously delivered to Seller in accordance with the terms hereof. No prorations will Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. This Paragraph 15.3 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
15.4 All refunds for time periods prior to the Proration Date in connection with any ongoing real estate tax protests for the Property initiated by Seller prior to the Closing shall remain the property of Seller (except to the extent required to be made in relation refunded to insurance premiums, tenants under such tenants' leases) and Seller's insurance policies will are not be being assigned by Seller to Purchaser pursuant to this Agreement. In the event any such refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller subject to the rights, if any, of any existing tenant of the Real Property to receive any pro rata share of such refund under such tenant's lease. Final readings Purchaser agrees, at no cost, expense, liability or potential liability to Purchaser, to execute any documents reasonably requested by Seller in connection with such tax protests.
15.5 In addition to the foregoing prorations and final credits, Landlord shall provide Purchaser at Closing with a credit of $139,192.75 (calculated as follows) in connection with certain tenant improvement costs to be assumed by Purchaser with respect to the Lease with EBP Healthplans, Inc. ("EBP") and the Lease with Paxson Broadcasting of Orlando ("▇▇▇▇▇n"): Paxson tenant im▇▇▇▇▇▇ent allowa▇▇▇▇ for utilities will be assumed by Purchaser: 2nd Amendment $ 45,018.75 3rd Amendment 177,186.00 Subtotal $222,204.75 Payment made if possible as by Seller ($2,100.00) Purchaser's agreed share of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve Paxson improvement allowance (12) months.
(b$80,136.00) Purchaser will receive a credit on the Closing Statement to Seller for the prorated amount leasing commission paid for Paxson amendment (as of the Proration Time$3▇,▇▇▇.00) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the ClosingOutstanding EBP tenant improvement balance under August 2, Seller will cause to be paid or turned over 1994 Lease $ 34,224.00 ----------- Net closing credit to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property$139,192.75 ===========
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Pension Investors I)
Prorations. (a) Seller and Purchaser agree The following adjustments to adjust, the Purchase Price shall be made at the Closing by proration of the amounts as specified below as of 11:59 p.m. on of the day preceding date preceeding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):closing:
(ia) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits Ad valorem real estate and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior personal property taxes applicable to the Closing DateProperties for 1996, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not such apportionment to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Sellerprevious year's insurance policies will not be assigned to Purchaser. Final readings and final taxes unless the bill therefor is avail▇▇▇▇▇▇▇▇ . Once the taxes for utilities will be made if possible as of 1996 are established, upon written demand by either party, the Closing Date, parties shall promptly recompute such proration in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect accordance with the utility providerscurrent tax figures, and Purchaser will any excess payment or credit received by a party shall promptly be obligated reimbursed by it to make its own arrangements for the other party. Buyer shall have the right to contest the 1996 taxes and Seller shall provide Buyer with any deposits with the utility providersinformation in Seller's possession to assist such contest. The provisions for readjustment of this Section 10.4(a) will taxes are intended to and shall survive the Closing for twelve (12) monthsof this transaction.
(b) Purchaser will receive a credit on Water and sewer rentals, charges for the 10/29/96 6 supply of electricity, gas, trash collection and other utility and service charges.
(c) Charges and receipts under service, maintenance, and other like contracts affecting the Subject Property. The amount of charges paid by Seller prior to the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any a period from and after the Proration TimeClosing shall be credited to Seller. After The amount of receipts received prior to the Closing and attributable to a period after the Closing shall be credited to Buyer.
(d) All other proratable items with respect to the Subject Property, including, but not limited to, rents. Security deposits shall be transferred as an escrow item which shall not adjust the Purchase Price. Rents and reimbursements for periods prior to Closing which have not been collected as of Closing, shall be applied first to post-Closing date delinquencies, and then to pre-Closing date delinquencies.
(e) All items to be adjusted for which figures are not available at the Closing, including real estate taxes for the year 1996, will be adjusted, and payment therefor will be made by Seller will cause to be paid Buyer or turned over by Buyer to Purchaser all RentalSeller, as appropriate, as soon as figures are available after the Closing and, in the case of revenues, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertywhen they are collected.
Appears in 1 contract
Prorations. (a) Seller As between Assignee and Purchaser agree Tenant, revenues and expenses, utility charges for the billing period in which the Transfer Date occurs, real and personal property taxes, certain prepaid expenses and other related items of revenue or expense attributable to adjust, the Facility shall be prorated between Tenant and Assignee as of 11:59 p.m. the Transfer Date. In general, such prorations shall be made so that as between Assignee and Tenant, Tenant shall be reimbursed for prepaid expense items to the extent that the same are attributable to periods after the Transfer Date and Tenant shall remain responsible for the payment as and when due of unpaid expenses to the extent that the same are attributable to periods prior to the Transfer Date. The intent of this provision shall be implemented by Assignee remitting to Tenant any invoices which describe goods or services provided to the Facility before the Transfer Date and by Assignee assuming responsibility for the payment of any invoices which describe goods or services provided to the Facility on and after the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowTransfer Date.
(iib) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by All such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of actual days elapsed in the actual figuresrelevant accounting or revenue period and shall be based on the most recent information available to Tenant. Utility charges which are not metered and read on the Transfer Date shall be estimated based on prior charges, and shall be re-prorated upon receipt of statements therefor as of the Transfer Date.
(c) All amounts which are subject to proration under the terms of this Agreement and which require adjustment after the Transfer Date shall be settled within thirty (30) days after the Transfer Date or, in the event the information necessary for such adjustment is not available within said thirty (30) day period, then within ten (10) business days of receipt of information by either party necessary to settle the amounts subject to proration.
(d) Within five (5) business days after the Transfer Date, Assignee shall remit to Tenant a final cash settlement will be made between Seller and Purchaser. No prorations will be made cashiers check in relation an amount equal to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇any ▇▇▇▇▇ for utilities will be made if possible cash (as compared to resident funds) maintained at the Facility by Tenant as of the Closing Transfer Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"“Proration Time”), the following (collectively, the "PRORATION ITEMS"“Proration Items”):
(i) Rentals, in accordance with Section 10.4(b) belowbelow and other income from the Property.
(ii) Cash Security Deposits and any Any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter readingTaxes.
(iv) Amounts payable under All operating expenses paid by the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis owner of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of ClosingProperty. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTAL" “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by the Tenant under the Leases or from other occupants or users of the Property. Rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Purchaser agrees to use commercially reasonable efforts with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by Tenant. All sums collected by Purchaser from and after Closing from Tenant (excluding tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(c) below) will be applied first to current amounts owed by the Tenant to Purchaser and then to delinquencies owed by Tenant to Seller. Any sums due Seller will be promptly remitted to Seller. Seller shall have no rights after Closing to attempt to collect any amounts due under the Lease or to otherwise pursue Tenant.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. (a) Seller 3.6.1. All items of income and Purchaser agree to adjust, as expense arising from the operation of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance Stations with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior respect to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date Purchased Assets and the Closing Date based Assumed Leases on or before the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If close of business on the Closing Date shall be for the account of Seller and thereafter shall be for the account of Purchaser. Proration of the items described below between Seller and Purchaser shall be effective as of 12:00 midnight, local time, on the Closing Date and shall occur before as follows with respect to those rights, liabilities and obligations of Seller transferred to and assumed by Purchaser hereunder.
3.6.2. Liability for state and local Taxes assessed on the Purchased Assets payable with respect to the tax rate is fixed, year in which the apportionment of real estate taxes Closing Date falls shall each be upon prorated as between Seller and Purchaser on the basis of the tax rate for number of days of the preceding Tax year applied elapsed to the latest assessed valuation. If, subsequent to and including the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) .
3.6.3. The FCC annual regulatory fees for the Real Property and Improvements should fiscal year October 1, 2004 through September 20, 2005 for the Stations which are payable in August, 2005 shall be determined assumed to be higher or lower than those that are apportionedthe same as the annual regulatory fees paid in August, a new computation 2004 and shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid prorated at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date.
3.6.4. Prepaid items, the prorations will deposits, credits and accruals such as water, electricity, telephone, other utility and service charges, lease expenses, license fees (if any) and payments under any contracts or utility services to be made at Closing assumed by Purchaser shall be prorated between Seller and Purchaser on the basis of the best evidence then available; thereafterperiod of time to which such liabilities, when actual figures are received, re-prepaid items and accruals apply.
3.6.5. All prorations will shall be made and paid insofar as feasible on the basis of the actual figures, Closing Date and a final cash settlement will be made between Seller and Purchaser. No prorations will shall be made in relation to insurance premiums, and Seller's insurance policies will accordance with generally accepted accounting principles; any prorations not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will made on such date shall be made if possible as soon as practicable (not to exceed ninety (90) days) thereafter. As soon as practical within said ninety (90) day period, Purchaser shall deliver to Seller Purchaser's certificate setting forth as of the Closing Date, in which event no proration will Date all adjustments to be made at as provided in this Article 3. Purchaser shall provide Seller or Seller's representatives access to copies of all books and records as Seller may reasonably request need to verify such adjustments. Purchaser's certificate shall be final and conclusive unless objected to by Seller in writing within thirty (30) days after delivery. Seller and Purchaser shall attempt jointly to reach agreement as to the Closing amount of the adjustments to be made hereunder within sixty (60) days after receipt by Purchaser of such written objection by Seller, which agreement, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or review. In the event of a disagreement between Purchaser and Seller with respect to utility bills. the accounting to be made hereunder, the parties agree that a public accounting firm chosen jointly by Purchaser and Seller will shall be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providersfinal arbiter of such disagreement. The provisions cost of this Section 10.4(a) will survive such accounting firm shall be shared equally by the Closing for twelve (12) months.
(b) parties. Any amounts due Purchaser will receive a credit on the Closing Statement or Seller for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to adjustments provided for herein shall be paid or turned over to Purchaser all Rental, if any, received by Seller within ten (10) calendar days after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyfinal determination.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spanish Broadcasting System Inc)
Prorations. 13.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be made for the days between the meter reading date and the prorated at Closing Date based on the most recent meter reading.
(iv) Amounts payable under ascertainable data. Seller shall pay at Closing the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable bills therefor for the calendar yearperiod to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax rate consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. Seller shall deliver to Purchaser all such real estate tax consulting contracts within fifteen (15) days of the date hereof. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement shall be deemed final as prorated on the Closing Date, except as to delinquent rent referred to in Paragraph 13.2 below.
13.2. For a period of ninety (90) days following the Closing Date, all basic rent paid following the Closing Date by any tenant of the Properties who is indebted under a Lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. On the last business day of each month following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and, if the amount owing Seller is greater than $5,000.00 for any one Real Property, the cost of performing Seller's audit. After the Closing, in no event shall Seller attempt to evict a tenant through any manner. Paragraph 13.2 of this Agreement shall survive the Closing and the delivery and recording of the deed.
13.3. To the extent it is reasonably possible for the preceding year applied Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the latest assessed valuationfollowing terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. IfDuring such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation then Purchaser shall be made, and Seller agrees responsible to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior same subsequent to the Closing Date (but no such payment shall accrue to the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed benefit of the Seller or constitute a credit against a debt otherwise owed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthssaid third party).
(be) Purchaser will receive a credit Purchaser's temporary license set forth in this paragraph shall expire on the Closing Statement date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the prorated amount owner of said rights a license fee equal to One Hundred Dollars (as $100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the Proration Time) of all Rental previously paid state where such Property is located to prevent such unauthorized use or collected to recover any damages authorized by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertylaws.
Appears in 1 contract
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 85)
Prorations. (a) The following shall be prorated between Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):Cut-Off Time:
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricityAll real estate taxes, water or sewer charges and sewer charges. If there are meters general or special assessments on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to or any other governmental tax or charge levied or assessed against the Property. If the Closing Dateshall occur before the actual amounts payable are known, and a per diem adjustment then apportionment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under recently ascertainable tax rates and assessed value of the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearProperty. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes Seller shall be upon the basis of the tax rate responsible for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate all such taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees allocable to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, and Purchaser shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ responsible for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable such taxes allocable to any period from and after the Proration TimeClosing Date. After If any taxes or assessments relating to the period prior to the Closing are paid in installments, then Seller shall pay on or before the Closing Date any remaining installments with respect to such taxes or assessments that are allocable to any period prior to the Closing Date. Seller and Purchaser agree that to the extent the actual taxes for the current year differ from the amount so apportioned at Closing, the parties hereto will within thirty (30) days after receipt of a request from Purchaser or Seller, as applicable, make all necessary adjustments by appropriate payments between themselves promptly following the Closing. At Closing, Seller will shall transfer to Purchaser control of all pending real estate tax certiorari proceedings which would or could affect post-Closing periods. After Closing, Purchaser shall pay over to Seller any sums realized through such certiorari proceedings which are allocable to periods prior to Closing (after recovery of a reasonable allocation of the legal expense and other costs incurred in realizing such sums).
(ii) All rent for the month in which the Closing occurs with respect to the Leases shall be prorated at Closing. There shall be no credit for delinquent rent, which shall be paid over by Purchaser to Seller if collected by Purchaser after the Closing.
(iii) With respect to Property Contracts assumed by Purchaser in accordance with this Agreement, (1) Seller shall be credited for sums prepaid by Seller under the Property Contracts, (2) Purchaser shall be credited for any amounts under the Property Contracts which as of Closing are due or accrued and relate to the period prior to Closing and (3) Purchaser and Seller shall prorate any amounts prepaid by the counterparty to any Property Contract (including, without limitation, prepaid bonuses or decorating allowances paid to Seller with respect to laundry or other similar ancillary agreements) over the term of the Property Contract.
(iv) Seller shall perform, or cause to be performed, an accounting of cash on hand at the Property (i.e., in-house banks and ▇▇▇▇▇ cash, including till money, and, to the extent same are the property of Seller, vending machines and pay telephones) in the presence of a representative of Purchaser and Purchaser shall retain such amounts and Seller shall be credited with a like amount at Closing.
(v) All tour and travel agent commissions paid or turned over prior to Purchaser all Rental, if any, Closing by Seller in respect of Bookings relating to a period after the Closing shall be credited to Seller at Closing. All advance deposits received by Seller prior to Closing in respect of Bookings relating to a period after the Closing shall be credited to Purchaser at Closing. Purchaser shall have no obligation to honor any reward stays occurring after Closing and accordingly Purchaser shall receive no credit for any such reward stay it elects to honor after Closing.
(vi) All accrued compensation (including without limitation, accrued severance and vacation benefits and any other benefits) payable to Transferred Employees and Bargaining Unit Employees (including, without limitation, compensation and benefits provided for under the Union Contract with respect to employees covered by the Union Contract) and any applicable employment and withholding taxes of such employees, attributable to the period prior to Closing, shall be credited to Purchaser.
(vii) To the extent that with respect to electricity, telephone, television, gas, water and sewer services which are metered and other utilities, Seller shall use reasonable efforts to have the respective companies providing such utilities read the meters on or immediately prior to the Cut-Off Time. Seller shall be responsible for all charges based on such final meter readings and Purchaser shall be responsible for all charges thereafter. To the extent such meters are not read and final bills rendered as of the Cut-Off Time, such charges with respect to the Property shall be prorated effective as of the Cut-Off Time utilizing an estimate of such charges reasonably approved by both Purchaser and Seller based on prior utility bills, unless Seller elects to close its own applicable account as of the Cut-Off Time, in which event Purchaser shall open its own account as of the Closing Date and the respective charges shall not be prorated, and, if Seller does not close its own applicable account, any deposits or credits with respect to the foregoing services will be credited to Seller if Purchaser receives full credit therefor from the utility. Upon the taking of a subsequent actual reading, such apportionment shall be adjusted to reflect the actual rate for the billing period in which the date of Closing falls, and Seller, or Purchaser, as the case may be, shall promptly deliver to the other the amount determined to be due upon such adjustment.
(viii) Seller shall be responsible for all condominium charges, including without limitation Common Charges and Special Assessments, if any (as such terms are defined in the Condominium Documents) and such other charges as may be due under the Condominium Documents (collectively, the “Condominium Charges”), in respect of the Essex House Condominium that are allocable to any period prior to the Closing Date and Purchaser shall be responsible for all such Condominium Charges allocable to any period from and after the Proration Closing Date. If any such Condominium Charges relating to the period prior to the Closing are paid in installments, then Seller shall pay on or before the Closing Date any remaining installments with respect to such Condominium Charges that are allocable to any period prior to the Closing Date and same shall be adjusted between Seller and Purchaser as of the Cut-Off Time. "RENTAL" Seller and Purchaser agree that to the extent the actual Condominium Charges differ from the amount so apportioned at Closing, the parties hereto will within thirty (30) days after receipt of a request from Purchaser or Seller, as used herein includes fixed monthly rentalsapplicable, additional rentalsmake all necessary adjustments by appropriate payments between themselves promptly following the Closing.
(ix) As of the date hereof the balance of the FF&E reserve held for Seller’s benefit for the Hotel-Related Units is $7,065,390.25 (the “FF&E Balance”). At Closing, percentage rentalsPurchaser shall receive a credit in an amount equal to the FF&E Balance on the date hereof. Notwithstanding the foregoing, escalation rentals between the date hereof through and including the Closing Date, Seller may use any portion of the FF&E Balance or increase the FF&E Balance; provided, however, (x) no increase in the FF&E Balance over the FF&E Balance on the date hereof shall be credited to Purchaser at Closing and (y) no reduction in the FF&E Balance below the FF&E Balance on the date hereof shall result in a credit to Purchaser at Closing of less than the FF&E Balance on the date hereof. Representatives of Seller and Purchaser shall make such inventories, examinations and audits of Seller, and of the books and records of Seller, as may be necessary to make the adjustments and prorations required under this Agreement. Prior to Closing, representatives of Purchaser and Seller shall jointly prepare a statement (the “Preliminary Closing Statement”) based upon such preliminary inventories, audits and examinations which include each Tenant's proration share will show the net amount due to Seller or Purchaser as the result thereof, and that net amount will be added to, or deducted from, the Purchase Price. Within ninety (90) days following the Closing, representatives of building Purchaser and Seller shall prepare a revised statement (the “Final Closing Statement”, and together with the Preliminary Closing Statement, collectively, the “Closing Statements”) setting forth the final determination of all items to be included in the Closing Statements, and any necessary payment shall be made within thirty (30) days after completion of such Final Closing Statement. Any item which cannot be finally prorated because of the unavailability of information shall be tentatively prorated on the basis of the best data then available and re-prorated when the information is available. The provisions of this Section 8.4 shall survive the Closing for a period of twelve (12) months and shall not be deemed merged into any instrument of conveyance delivered at the Closing. Purchaser and Seller acknowledge and agree that, except as otherwise expressly provided herein, the purpose and intent of the provisions set forth in this Section 8.4 and elsewhere in this Agreement as to prorations and apportionments is that Seller shall bear all expenses of the ownership and operation of the Property (for which buyers and maintenance costs sellers of hotels in The City of New York would customarily prorate or apportion) and shall receive all income therefrom accruing through the Cut-Off Time and Purchaser shall bear all such expenses and receive all income accruing thereafter. Any revenues and/or expenses affecting the Property that are not otherwise specifically addressed in Section 8.4(b) shall be apportioned consistently with the foregoing provisions. Purchaser and Seller further acknowledge and agree that the apportionments as provided for under to the LeaseHotel-Related Units in this Section 8.4(b) shall be prepared, to the extent applicable, in accordance with the same exceeds any expense stop specified in such Lease)current edition of the Uniform System of Accounts for Hotels of the Hotel Association of New York City, retroactive rentalsInc., all administrative charges, utility charges, tenant or real propertyas adopted by the American Hotel Association of the United States and Canada.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Hotels & Resorts, Inc)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); security deposits which are refundable under the leases regardless of the effect of Seller's bankruptcy or any foreclosure may have on such security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; fuels; operating expenses; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding later of the Closing Date or the actual date of the closing of this transaction (the "PRORATION TIMEProration Date"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior credited to the Closing Date, and a per diem adjustment shall be made for balance of the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for any period prior to and including the Closing Date shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Purchaser shall pay to Seller and Purchaseran amount equal to the amount such Post-Closing Receipt exceeds the amount currently due by the tenant paying such Post-Closing Receipt under its lease. No prorations will be made in relation Purchaser shall use its best efforts to insurance premiumscollect all amounts which, and Seller's insurance policies will upon collection, would constitute Post-Closing Receipts hereunder provided, however, that Purchaser shall not be assigned required to Purchaserinstigate litigation to collect Post-Closing Receipts. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. Prepaid or accrued (aas the case may be) Seller and Purchaser agree interest on the Loan Documents, rents for the month of the Closing (exclusive of delinquent rents, but including prepaid rents); any previously paid signing bonus or similar payment relating to adjustany laundry room, cable, telephone or similar agreement in effect as of 11:59 p.m. the Closing, refundable security deposits with interest if required by local law (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); refundable and non-refundable pet and cleaning fees and deposits, water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes (as provided for in the next following sentence); and other similar items shall be adjusted ratably as of 12:01 A.M. on the day preceding the Closing Date (the "PRORATION TIMEProration Date"), and credited or debited to the balance of the cash due at Closing. Real property taxes shall be prorated based on the following (collectively, information in the "PRORATION ITEMS"):
following circumstances: (i) Rentalsif the current tax b▇▇▇ is available, in accordance with Section 10.4(b) below.
real property taxes shall be prorated based on that tax b▇▇▇; (ii) Cash Security Deposits if the tax b▇▇▇ for the current tax year is not available and any prepaid rentsthe assessed valuation for the Property for the current tax year is not available, together with interest required to real property taxes shall be paid thereon.
prorated based on 106% of the most recently available tax b▇▇▇; and (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on if the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made tax b▇▇▇ for the days between current tax b▇▇▇ is not available but the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable assessed valuation for the calendar year. If Property for the Closing Date shall occur before the current tax rate year is fixedavailable, the apportionment of real estate property taxes shall be upon the basis prorated based on 101% of the tax rate for the preceding prior tax year applied to multiplied by the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) equalization factor for the Real Property and Improvements should be determined to be higher or lower than those that are apportionedprior tax year, a new computation shall be madeif applicable, and Seller agrees to pay Purchaser any increase shown multiplied by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited current assessed valuation for the amounts Property. In addition, Seller shall receive as a credit from Purchaser the amount of all of the Proration Items any escrow and reserve accounts relating to the period up Bonds and/or the Loan Documents (including, without limitation, debt service escrow accounts, tax escrow accounts, replacement reserves, repair reserves and insurance escrow accounts). Finally, Purchaser shall receive as a credit at Closing any amounts, if any, then owing by the Seller to the Proration TimeLender which are unrelated to the assumption of the Bonders by the Purchaser or the release of Seller under the Bonds. If the amount of any of the items to be prorated is not then ascertainable, the adjustment thereof shall be on the basis of the most recent ascertainable data. All prorations will be final except as to Delinquent Rents referred to in 13B below, and Purchaser will be charged and credited errors in calculation on the closing statement. If special assessments have been levied against the Property for all completed improvements, then the amount of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser any installments which are due prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if ; and the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment amount of the Purchase Price at the Closing. If the actual amounts of the Proration Items installments which are not known as of due after the Closing Date, Date shall be paid by the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ All assessments for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to incomplete improvements shall be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyPurchaser.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees if and to the extent payable to the existing property manager for rent received and prorated for the month of Closing; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited to the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. For a period of 120 days following the basis Closing, all basic rent paid following the Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder, but in no event shall Purchaser be made between Seller and Purchaserrequired to initiate legal proceedings to collect such amounts. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller in effect with an amount greater than $5,000.00, Purchaser shall pay to Seller said additional Post-Closing Receipts and the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Pension Investors Iii)