Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow. 6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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. 6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (T Reit Inc), Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (collectively, the "PRORATION ITEMS"):
(i) to Buyer's actual out-of-pocket costs of collection incurred Rentals, in accordance with respect to the collected amounts; Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to rents due under the Lease for the month in which the payment is received by Buyer; be paid thereon.
(iii) to rents attributable to any period after the Close of Escrow that Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are past due meters on the date Real Property, Seller will cause readings of receipt; and all said meters to be performed not more than five (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (105) days prior to the delinquency 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 such tax 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 ▇▇▇▇▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated for utilities will be made if possible as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements 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 Property transactions entered into prior utility providers, and Purchaser will be obligated to execution make its own arrangements for any deposits with the utility providers. The provisions of this Agreement shall 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, Seller after Closing and Seller shall indemnify attributable to any period from and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of this Agreement shall be prorated between Buyer building operation and Seller maintenance costs and expenses as their respective periods of ownership bear provided for under the Lease, to the primary term of extent the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from same exceeds any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyerexpense stop specified in such Lease), brought by the Tenant retroactive rentals, all administrative charges, utility charges, tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.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. 6.7.1. Real property taxesNotwithstanding anything to the contrary in any CAPCO Agreement:
(a) The Parties agree that all of the items normally prorated, assessmentsincluding those listed below (but not including Income Taxes), rents, security deposits, relating to the business and CAM expenses operation of the DLC Nuclear Assets shall be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be proratedDLC 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 same units used to compute the item in question, otherwise measured by calendar days):
(i) Personal property, real estate and occupancy Taxes, assessments and other charges, if any, on or with respect to the business and operation of the DLC Nuclear Assets;
(ii) Rent, Taxes and all other items (including prepaid services or goods not included in Inventory) payable by or to a DLC under any of the DLC Nuclear Agreements;
(iii) Any permit, license, registration, compliance assurance fees or other fees with respect to any Transferable Permit;
(iv) Sewer rents and charges for water, telephone, electricity and other amounts received utilities with respect to the DLC Nuclear Assets;
(v) Rent and Taxes payable by Buyer on DLC under the Real Property Leases assigned to the applicable Specified FE Subsidiary; and
(vi) ANI and ▇▇▇▇ insurance premiums for the current year or after other applicable policy period;
(vii) Impositions and fees payable to the Close Department of Escrow Energy and the NRC; and
(viii) Membership fees in respect of the Lease will be applied Institute for Nuclear Power Operator, the Nuclear Energy Institute and similar organizations involved solely in nuclear matters.
(b) In connection with the prorations referred to in Section 3.4 (a) above, in the following order: 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 (ior other appropriate period) to Buyer's for which actual outTaxes or other amounts paid are available. Such prorated Taxes or other amounts shall be re-of-pocket costs of collection incurred with respect prorated and paid to the collected amounts; appropriate Party within sixty (ii60) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close days of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of that the Close of Escrow (and Buyer promptly will remit these amounts to the Seller)previously unavailable actual figures become available. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment The prorations shall be based on the latest available tax ▇▇▇▇. If, after Close number of Escrow, Buyer receives any further days in a year or supplemental tax ▇▇▇▇ relating to any other appropriate period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, (i) before the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, DLC Nuclear Closing Date and not later than ten (10ii) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer including and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 executed after the date of DLC Nuclear Closing Date. The Parties 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 Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new leaseSection 3.4.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 2 contracts
Sources: Nuclear Generation Conveyance Agreement (Duquesne Light Co), Nuclear Generation Conveyance Agreement (Dqe Inc)
Prorations. 6.7.113.1. Real property taxes, assessments, Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security depositsdeposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated through Escrow between Buyer at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of Close of Escrowthe Closing Date. Rents, security deposits All costs associated with telephone directory listings and CAM expenses any other prepaid advertisements shall be approved by Buyer prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to Close the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of Escrowthe preceding sentence shall survive the Closing.
13.2. Rents and other charges under the Lease that which are delinquent as of the Close of Escrow will Closing Date shall not be prorated. Instead, and rents and other amounts received by Buyer on or after to the Close 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 Escrow in respect a portion of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease Real Property for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close the date of EscrowClosing, or free from any claim thereon by the Seller. Seller receives may use whatever lawful means are available to Seller to collect any further or supplemental tax ▇▇▇▇ relating delinquencies up to any period after Close of Escrow, and until the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days day prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Closing Date, provided that Seller shall deliver not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the taxing authority their respective shares Purchaser. Furthermore, the Seller shall not have the right to retain any portion of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements 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 transactions entered into prior to execution which are the property of this Agreement shall be paid by an Affiliate of Seller, in place advertising, telephone directory listings and Seller shall indemnify advertisements, and hold Buyer harmless for Lease commission claims brought against telephone numbers, at each of the Property arising therefrom. All leasing commissions for new leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear Properties pursuant to the primary term of following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the new lease.
6.7.3. Seller agrees to indemnify Closing Date and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees shall expire on the day which is one hundred eighty (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring 180) days subsequent to the date of closing and which are in any way related when the public telephone directory pertaining to each Property is published subsequent to the PropertyClosing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all expenses related thereto, including, but not limited to, court costs existing telephone directory listings and attorneys' fees, provided, advertisements and signs can be replaced in due course and within the license period specified above. In the event that the foregoing indemnity 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 not 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 construed entitled to limit a pro-rata credit for such portion of the effect of, nor shall it be applicable cost of such listing and/or advertisement attributable to the subject matter ofperiod 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, any then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of Sellerthe Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's representations and warranties expressed temporary license set forth in this Agreement paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or in trade names beyond the closing documents delivered 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 Sellerfederal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 2 contracts
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 86), Sale Agreement (Balcor Colonial Storage Income Fund 86)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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 Escrow12.1. Rents and other charges under the Lease that are delinquent as (exclusive of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to institute legal proceedingsand assumed by Purchaser and credited to Purchaser at Closing); prepaid or accrued (as the case may be) interest on the Existing Bond and Mortgage Documents, including an action for unlawful detainerwater 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 12:01 a.m. on the Closing Date, and credited against the Tenantbalance of the cash due at Closing. In no event will 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 commence or maintain any action after at Closing, the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations proceeds in said escrows shall be based assigned to Purchaser and the amounts thereof shall be a credit to Seller at the Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the latest available tax ▇▇▇▇basis of the most recent ascertainable data. If, after Close All prorations will be 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 Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to the Property who is indebted under a lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient all current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller, Purchaser shall use reasonable efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder, but shall not be liable to Seller for its failure to collect same. Within 120 days after the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 the expense of Close Seller at reasonable times and upon reasonable notice, of Escrow.
6.7.2Purchaser'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 in the event Seller's audit discovers additional Post-Closing Receipts greater than $5,000.00, Purchaser shall pay the cost of performing Seller's audit. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leasedeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 2 contracts
Sources: Agreement of Sale (Balcor Realty Investors 85 Series I), Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. 6.7.1. Real property taxesThe 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, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and with Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer liable for such items to the extent they are allocable to the period prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as date of the Close of Escrow will not be prorated, Closing and rents Purchaser liable for such items to the extent they are allocable to periods beginning with and other amounts received by Buyer subsequent to the Closing:
(a) Property Taxes on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; Assets.
(iib) Rents, additional rents, Taxes, to rents due the extent normally adjusted in connection with similar transactions, and other items payable by Seller under the Lease Real Property Leases and the Business Contracts.
(c) The amount of rents, Taxes and charges for sewer, water, telephone, electricity and other utilities relating to the month Real Property and the real property subject to the Real Property Leases.
(d) All other items (excluding other Taxes) normally adjusted in which connection with similar transactions. Except as otherwise agreed by the payment is received by Buyer; (iii) to rents attributable to any period after parties, the Close net amount of Escrow that are past due on the all such prorations will be settled and paid as of date of receipt; and the Closing. At least ninety (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (1090) days prior to date of the delinquency date shown Closing, Seller will provide Purchaser with a reasonably detailed schedule showing a calculation of the estimated prorations as if the Closing were occurring on such tax ▇▇▇▇ Buyer and Seller date. If the Closing shall deliver occur before a real estate Tax rate is fixed, the apportionment of Taxes shall be based upon the Tax rate for the preceding year applied to the taxing authority their respective shares of latest assessed valuation and such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement Taxes shall be paid by reprorated upon the request of Seller, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against on the Property arising therefrom. All leasing commissions for new leases executed one hand, or Purchaser, on the other hand, made within sixty (60) days after the date that the actual amounts become available. 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 this Agreement shall be prorated between Buyer and Seller as their respective periods the transfer of ownership bear the FERC project licenses related to the primary term of the new lease.
6.7.3. Hydro Units, Seller agrees to indemnify and hold Buyer harmless pay all annual charges accrued under such licenses as of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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' feesClosing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Pp&l Inc), Asset Purchase Agreement (Pp&l Resources Inc)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, The following adjustments to the Purchase Price paid hereunder shall be made between Seller and CAM expenses Purchaser and shall be prorated through Escrow (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 the 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 Buyer 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 Close of Escrowthe Closing Date. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are Rent which is unpaid or delinquent as of the Close of Escrow will Closing Date shall not be prorated, and rents and other amounts received by Buyer on but such unpaid or delinquent rent collected after the Close of Escrow in respect of the Lease will Closing Date shall be applied in the following orderdelivered as follows: (i) if Seller collects any rent after the Closing Date, Seller shall deliver to Buyer's actual out-of-pocket costs of collection incurred with respect to Purchaser any such rent within fifteen (15) days after the collected amounts; 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 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 due (including without limitation the Pass Through Expenses and percentage rents described in Section 4.4(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.
(c) With respect to additional rent attributable to insurance, taxes, common area maintenance and other operating expenses which are passed through to tenants under the Lease for Leases (the month in which the payment is received by Buyer; (iii“Pass Through Expenses”) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close Closing Date are not yet collected, Purchaser shall, upon collection of Escrow (and Buyer promptly will remit these amounts such Pass Through Expenses, but subject to the Seller)same rules of application set forth in Section 4.4(b) above, remit to Seller an amount equal to that portion of Pass Through Expenses which accrued prior to the Closing Date. Buyer will use commercially reasonable efforts With respect to collect any delinquent rentsPass Through Expenses which have not been billed to tenants as of the Closing Date, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations Purchaser shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating each tenant for 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 period prior information held by Seller and not in the possession of Purchaser and reasonably necessary to Close such obligation, prepare a reconciliation of EscrowPass-Through Expenses. In the event that any reconciliation shows that either Seller or Purchaser is owed an adjusting payment, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, then the recipient party owing such payment shall promptly deliver a copy of such tax ▇▇▇▇ to remit the other partysame.
(d) Charges under service agreements assumed by Purchaser, utility charges for which Seller is liable, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares other operating expenses of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 executed after the date of this Agreement shall be prorated between Buyer 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 their respective periods hereinafter defined) and leasing commissions which become due and payable (whether before or after Closing) (A) as a result of ownership bear any renewals or expansions of existing Leases, and (B) under any new Leases (including any amendments of existing Leases) in each instance to the primary term extent entered into after the Effective Date of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind this Agreement which have been approved (or nature, including court costs and reasonable attorneys' fees (except those items which under deemed approved) by Purchaser in accordance with the terms of this Agreement specifically 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 obligation Effective Date. Seller shall be responsible for all other Tenant Inducement Costs. If as of Buyer), brought by the Closing Date Seller shall have paid any Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.Inducement Costs
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Wells Core Office Income Reit Inc)
Prorations. 6.7.1. Real 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, assessmentsspecial taxes and assessments for the Project based on the latest information available to Escrow Holder (i.e., rents$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., security deposits$25,953,750) and the effective tax rate for 2011), (b) rental payments, other revenues and CAM expenses shall be prorated through and (c) any other items Seller and Buyer mutually instruct Escrow between Buyer and Seller as of Holder to prorate prior to the Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents All rental payments and other tenant charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and additional rents and other amounts received by Buyer on or from a tenant after the Close of Escrow in respect of the Lease will Closing Date shall be applied in the following order: (i) first to Buyer's actual out-of-pocket collection costs of collection incurred with respect and then to the collected amounts; most recently accrued obligation of such tenant. After application as set forth above, Buyer shall remit to Seller on the Final Adjustment Date (iias defined below) to that portion of rentals and other tenant charges and additional rents due under received after the Lease for the month in which the payment is received by Buyer; (iii) to rents Closing Date attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days periods prior to the delinquency date shown on such tax ▇▇▇▇ Buyer month of Closing, and Seller shall deliver if attributable to the taxing authority their respective shares month of such tax ▇▇▇▇Closing, prorated as Seller’s share thereof in accordance with the proration set forth above; provided, however, that any rent received from the United States of Close America, the Department of Escrow.
6.7.2Homeland Security and Department of Justice, and Internal Revenue Service Department of Treasury, Bureau of Alcohol, Tobacco and Firearms shall be deemed to be payment for the prior month’s outstanding rent due. All leasing commissions owing and tenant improvements with respect to In the Property transactions entered into prior to execution of event any prorations made under this Agreement shall prove to be paid by Sellerincorrect for any reason, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date of this Agreement then any party shall be entitled to an adjustment to correct the same. Any item which cannot be finally prorated between Buyer and Seller as their respective periods of ownership bear to the primary term because of the new lease.
6.7.3unavailability of information shall be tentatively prorated on the basis of the best data then available and re-prorated when the information is available. Seller agrees If any items to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees be adjusted are not determinable at Closing (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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 items set forth in this Article 5), the adjustment shall be made subsequent to the Closing within thirty (30) days following the final determination of 2012 taxes and attorneys' fees, provided, that assessments for the foregoing indemnity Project (the “Final Adjustment Date”). The provisions of this Article 5 and the obligations of Sellers and Buyer hereunder shall survive the Closing and shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, deemed merged into any of Seller's representations and warranties expressed in this Agreement or in the closing documents instrument delivered by Sellerat Closing.
Appears in 2 contracts
Sources: Purchase Agreement (G REIT Liquidating Trust), Purchase Agreement (NNN 2002 Value Fund LLC)
Prorations. 6.7.1. Real (a) For purposes of determining the Purchase Price, personal property taxesand real property Taxes, assessmentsfees with respect to any Transferable Permits, rentsrents under any leases of real or personal property, security depositsor other similar expenses, that are not due or assessed until after the Effective Time but which are attributable in whole or in part to any period commencing prior to the Effective Time, and CAM expenses shall any other amounts that by the terms of this Agreement are to be allocated between the Parties, will be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be proratedEffective Time, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect Seller liable to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating extent such items relate to any period prior to Close of Escrowthe Effective Time, or Seller receives any further or supplemental tax ▇▇▇▇ relating and Buyer liable to the extent such items relate to any period from and after Close the Effective Time. If the actual 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 Escrowany amounts, and will be adjusted to properly take into account any amounts thereof used in determining the recipient shall promptly deliver Purchase Price.
(b) The proration of all items under this Section 3.4 will be recalculated by Buyer within a copy reasonable period of time following the date upon which the actual amounts become available to Buyer. Buyer will notify Seller of such tax ▇▇▇▇ to the other partyrecalculated amounts, and not later than ten (10) days prior will provide Seller with all documentation relating to the delinquency date shown on such recalculations, including tax ▇▇▇▇ Buyer statements and Seller shall deliver other notices from third parties. The Parties will make such payments to the taxing authority their respective shares of such tax ▇▇▇▇, each other as are necessary to reconcile any estimated amounts prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements the Effective Time with respect the final amounts to the 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 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.
6.7.3prorated. Seller agrees and Buyer agree to indemnify furnish each other with such documents and hold Buyer harmless of and from any and other records as may be reasonably requested in order to confirm all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of proration calculations made pursuant to this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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' feesSection 3.4.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Algonquin Power & Utilities Corp.), Asset Purchase Agreement (Atmos Energy Corp)
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents, All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are Any delinquent as of rents attributable to periods prior to the Close of Escrow will not be prorated, and rents and other amounts received which are collected by Buyer on or after 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 Close of Escrow in respect right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received Tenant by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and unlawful detainer or other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Sellermeans. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, If after Close of Escrow, Buyer Escrow either party receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property transactions entered into prior to execution of this the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for Lease lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new leases Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear bears to the primary term of the new leaseLease subject, in all events, to the 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 of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date Close of closing Escrow 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' attorneys fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date Close of closing Escrow 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (G Reit Inc), Purchase and Sale Agreement (G Reit Inc)
Prorations. 6.7.15.2.1 Rentals (including fixed monthly rentals and other periodic rentals, additional rentals, operating cost pass- throughs and other sums and charges payable by the tenants), prepaid rentals and prepaid payments (collectively, "Rent") shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing and for all security deposits paid to the landlord under the Leases as referenced in the Leases, less only the amount thereof, if any, Seller shall have applied pursuant to one or more Leases (in which event Seller shall provide Buyer with a written explanation of 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 the period prior to the Closing. If Buyer shall collect any such Rent after the Closing (Buyer shall exert good faith efforts to collect such Rent), Buyer shall promptly pay the same to Seller.
5.2.2 Real estate taxes shall be prorated as of the Closing on the basis of the most recent assessed valuation of and rates and multiplier applicable to the Property.
5.2.3 Utilities shall be read at the Closing Date and Seller shall be responsible for payment of such utilities. Buyer shall establish new utility accounts and shall be responsible for all utilities from and after the Closing.
5.2.4 Common area and maintenance charges, property taxes, assessments, rents, security deposits, and CAM expenses shall be 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. Rents insurance and other charges under operating cost pass-throughs payable by tenants of the Lease that are delinquent Project which accrue as of the Close of Escrow will Closing Date, but which are not then due and payable (collectively, the "Operating Expenses"), shall not be prorated, except as herein provided. Buyer shall receive and rents retain any Operating Expenses paid by tenants of the Project on or after the Closing Date and other amounts Seller shall receive and retain any Operating Expenses paid by tenants of the Project prior to the Closing Date; provided, 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 Close of Escrow in respect Closing Date shall be prorated as of the Lease will Closing Date. 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 such period, so that if there are any rebates owing to Project tenants for the period of Seller's ownership, Seller shall be applied in charged therefor, and if the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred Project tenants owe the landlord any additional amounts for Operating Expenses with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; Seller's ownership, and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these actually pay such amounts to the Seller). Buyer will use commercially reasonable (Buyer agrees to exert good faith efforts to collect any delinquent rentsthe same), provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇entitled to receive such amounts from Buyer. 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of Any prorations under this Agreement shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against based upon the Property arising therefrom. All leasing commissions for new leases executed after the date actual number of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or days in the closing documents delivered by Sellerapplicable period.
Appears in 1 contract
Prorations. 6.7.113.1. Real Rents (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 and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes, assessments, rents, security depositsoperating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses 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 prorated through Escrow between Buyer and Seller as based on 105% of Close of Escrow1996 taxes. Rents, security deposits and CAM expenses Assessments payable in installments which are due subsequent to the Closing Date shall be approved paid by Buyer prior to Close Purchaser. If the amount of Escrow. Rents and other charges under the Lease that are delinquent as any of the Close of Escrow will items to be prorated is not then ascertainable, the adjustments thereof shall be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect basis of the Lease most recent ascertainable data. All prorations will be applied final except as to delinquent rent referred to in Paragraph 12.2 below.
13.2. All basic rent paid following the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received Closing Date by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as tenant of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action Property who is indebted under a lease for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to basic rent for any period prior to Close and including the Closing Date, after the payment to Purchaser of Escrowall current basic rent, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior 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 delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the 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. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leasedeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses The following shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents, security deposits 11.59 p.m. CST on the day immediately preceding the Closing Date and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents adjusted against the Purchase Price due at Closing: (a) rents and any other amounts actually collected from tenants and other charges under persons using or occupying the Lease that are delinquent Property as of the Close Closing Date; (b) utility charges including sewer charges (utility charges shall be prorated based on the last reading of Escrow will not be proratedmeters prior to Closing performed at Seller’s request, if possible) and rents and other amounts received by Buyer on or after normally prorated operating expenses for the Close month of Escrow in respect Closing that are actually paid as of the Lease will be applied in the following order: (i) Closing Date subject however to Buyer's actual out-of-pocket costs of collection incurred Section 6.5 below with respect to the collected amountsratio utility billing systems (RUBS); and (iic) to rents due under the Lease amounts owed by Seller or paid for the month of Closing under the Contracts described in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent Section 3.3 hereof as of the Close Closing Date (on the basis of Escrow 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 Buyer promptly prior to Closing. Within sixty (60) days after the Closing, Purchaser and Seller will remit these amounts 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 Seller). Buyer will use commercially reasonable efforts to collect any delinquent rentsClosing Date, provided but not billed or paid at that Buyer has no obligation to institute legal proceedingsdate, including an action for unlawful detainerany 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, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment all prorations shall be made on a 365-day calendar year basis, based on the latest available tax ▇▇▇▇actual number of days in the applicable month. If, after Close The terms of Escrow, Buyer receives any further 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 invoices or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or bills for all prorated expenses and other reasonable backup information from Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not no later than ten 3:00 p.m. CST two (102) business days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of EscrowClosing Date.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Resource Apartment REIT III, Inc.)
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, assessments, rents, security deposits, and CAM expenses shall be 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. Rents and other charges under the Lease that are delinquent as of the Close Closing Date, the following (collectively, the "PRORATION Items"): real estate taxes and assessments only. Seller will be charged or credited for the amounts of Escrow all of the Proration Items relating to the period up to and including the Closing Date, and Purchaser will be charged or credited for all of the Proration Items relating to the period after the Closing Date. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller using its reasonable business judgment and submitted to Purchaser for Purchaser's approval (which approval shall not be unreasonably withheld, delayed or conditioned) (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the 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 between Seller and Purchaser in respect of Rentals, operating costs, Billable Operating Costs or insurance premiums, and Seller's insurance policies will not be proratedassigned to Purchaser. All adjustments other than the specified Proration Items shall be made by Seller, as landlord, and rents Tenant, as tenant, which adjustments shall be made in accordance with the Lease as if the Closing Date and other amounts received by Buyer on or after Lease Surrender were the Close of Escrow in respect expiration date of the Lease Lease. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be applied made as of the Closing Date, in which event no proration will be made at the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred Closing with respect to the collected amounts; (ii) to rents due under the Lease utility bills, otherwise, such prorations shall be made between Seller and Tenant, as aforesaid, for the month in which period up to and including the payment is received by Buyer; (iii) to rents attributable to any Closing Date, and between Tenant and Purchaser for the period after the Close Closing 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 deposits with the utility providers. Purchaser will use reasonable efforts to give Seller ten (10) business days notice of Escrow that are past due on the date Closing Date to allow Seller adequate time to arrange for final readings and calculation of receipt; all prorations. The provisions of this Section 10.4 will survive the Closing for nine (9) months.
(b) Purchaser will cause to be paid or turned over to Seller, in the form received by Purchaser, all Rentals, if any, received by Purchaser after Closing and attributable to the Tenant Lease for any period prior to the Closing Date. Purchaser will have no liability for the failure to collect any such amounts and will not be required to take any other legal action to enforce collection of any such amounts owed to Seller by the Tenant of the Property. After the Closing Date, Seller may collect Delinquent Rentals and ▇▇▇▇▇▇▇▇ described in Section 10.4(d) below from Tenant and take other legal non-possessory action to enforce collection of any such amounts, provided, however, in no event will Seller have the right to threaten termination of the Tenant Lease or institute any eviction or ejectment proceedings.
(ivc) Seller, using its reasonable business judgment, will prepare, at least seven (7) days prior to rents and other charges delinquent the Closing Date, a reconciliation as of the Close Closing Date of Escrow the amounts of all ▇▇▇▇▇▇▇▇ and charges for Tenant's use of water & sewer, operating costs and tax escalations (collectively, "BILLABLE OPERATING COSTS") comparing actual electricity and Buyer promptly will remit these amounts operating costs escalations for the year-to-date until the Closing Date with Seller's actual collections of Billable Operating Costs that have actually been charged to Tenant for the Seller)calendar year in which Closing occurs and submit such reconciliation to Tenant for its approval. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the All adjustments of Billable Operating Costs shall be conducted by Seller and Tenant. In no event will Purchaser be responsible for any adjustment on account of Billable Operating Costs. If more amounts have been expended for Billable Operating Costs than have been billed to and collected from Tenant for Billable Operating Costs, Seller commence or maintain any action after the Close of Escrow against the Tenant will seek to collect such difference from Tenant at Closing. If more amounts have been collected from Tenant for Billable Operating Costs than have been expended for Billable Operating Costs, Seller will remit to Tenant at Closing such excess collected amount. Purchaser and Seller agree that such proration of Billable Operating Costs at the Closing will fully relieve Purchaser from any sums purportedly owed by responsibility to Tenant or Seller for such matters. In this regard, Seller will be solely responsible for (i) seeking collection from Tenant of the amount of any Billable Operating Costs not previously collected, and (ii) where appropriate, reimbursing Tenant for amounts attributable to Seller. Tax and assessment prorations shall Billable Operating Costs as may be necessary based on annual reconciliations for Billable Operating Costs for all calendar years including the latest available tax calendar year in which Closing occurs. (The provisions of this subsection do not apply to Billable Operating Costs for the calendar year preceding the calendar year in which Closing occurs, the same being governed by Section 10.4(b) above.)
(d) With respect to specific tenant ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close for work orders, special items performed or provided at the request of EscrowTenant, or Seller receives any further or supplemental tax other specific services, and specific ▇▇▇▇▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ for Billable Operating Costs or other additional rents and amounts due which relate to the other party, and not later than ten (10) days foregoing specific services rendered by Seller prior to the delinquency date shown on such tax ▇▇▇▇ Buyer Closing Date, Seller may seek to collect same from Tenant in accordance with the Lease and Seller Purchaser shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrowhave no responsibility therefor.
6.7.2. All leasing commissions owing and (e) Nothing contained in this Agreement shall obligate or be deemed to obligate Purchaser to pay or reimburse Seller for any Commissions, tenant improvements improvement costs or other expenditures with respect to the 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 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 leaseexisting Tenant Lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Imclone Systems Inc/De)
Prorations. 6.7.1. Real property 5.4.1 The following shall be prorated between Seller and Purchaser as of 12:01 a.m. on the Closing Date (on the basis of the actual number of days elapsed over the applicable period):
(a) All ad valorem real estate taxes, assessments, rentsand any payments in lieu thereof pursuant to Ohio Revised Code Chapter 5709 and not reimbursable by tenants under the Leases for the calendar year of the Closing which have not been paid but are due and payable with respect to calendar year 2016 shall be apportioned and prorated on a per diem basis between the parties as of the Closing Date, security depositsregardless of the collection date therefor. 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, and CAM expenses then the installment for the current period shall be prorated through Escrow between Buyer (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 as of Close of Escrow. Rents, 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 CAM expenses shall be approved by Buyer are not applied or forfeited prior to Close the Closing Date) to Purchaser on the Closing Date. Seller shall deliver to Purchaser at Closing any tenant security deposits which are held in the form of Escrowletters of credit, along with any required transfer forms and fees, if any. Rents and other charges under the Lease that which are delinquent as of the Close of Escrow will Closing Date shall not be prorated, 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 and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will Closing Date, such payments shall be applied in first toward the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) Closing occurs, second to the rents attributable 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 or threaten to terminate any lease or any tenant’s right to possession), which right shall include the right to continue legal actions or proceedings against any tenant which have already been commenced, but not the right to commence new legal actions or proceedings. 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.
(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 Close Percentage Rent Year, remit to Seller that portion which is equal to the number of Escrow that are past due days which elapsed between the commencement date of the Percentage Rent Year for each such tenant, and the Closing Date, and 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 receipt; Closing occurs, in excess of Seller’s share as calculated as set forth above in this Section 5.4.1(c), it shall pay such excess to Purchaser at Closing.
(d) All operating expenses customarily apportioned between sellers and (iv) purchasers of real estate properties similar to rents the Property and other charges delinquent located in the same geographic area as the Property. Specifically, Seller will prepare a reconciliation as of the Close Closing Date of Escrow (and Buyer promptly will remit these the amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax all ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ and charges for operating expenses and real estate taxes and assessments in excess of the applicable expense stop, if any, specified in each Lease (collectively, “Operating Expense Recoveries”) for calendar year 2016. If less amounts have been collected from Tenants for Operating Expense Recoveries for calendar year 2016 than would have been owed by Tenants under the Leases if the reconciliations under such Leases were completed as of the Closing Date based on the operating expenses and real estate taxes and assessments incurred by the Seller for calendar year 2016 up to the Closing Date (as prorated pursuant to this Section 5.4.1), Purchaser will pay such difference to Seller at Closing as an addition to the Purchase Price. If more amounts have been collected from Tenants for Operating Expense Recoveries for calendar year 2016 than would have been owed by Tenants under the Leases if the reconciliations under such Leases were completed as of the Closing Date based on the operating expenses and taxes incurred by the Seller for calendar year 2016 up to the Closing Date (as prorated pursuant to this Section 5.4.1), Seller will pay to Purchaser at Closing as a credit against the Purchase Price such excess collected amount. Purchaser and Seller agree that such proration of Operating Expense Recoveries at Closing for calendar year 2016 will fully relieve Seller from any responsibility to Tenants or Purchaser for such matters subject to Seller’s and Purchaser’s right and obligation to finalize prorations within one hundred eighty (180) days after the last day of the calendar year in which the Closing occurs solely to make adjustments necessary to the extent estimates used in the calculation of such reconciliation at Closing differ from actual bills received after Closing for those items covered by such reconciliation at Closing or to correct any errors. In this regard, Purchaser will be solely responsible, from and after Closing, for (i) collecting from Tenants the amount of any outstanding Operating Expense Recoveries for calendar year 2016 for periods before and after Closing, and (ii) where appropriate, reimbursing Tenants for amounts attributable to Operating Expense Recoveries for calendar year 2016, as may be necessary based on annual reconciliations for Operating Expense Recoveries for such calendar year.
(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, fees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees.
(g) Utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to 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 same geographic area as the Property subject to Section 7.2.3(a) hereof, including, without limitation, any period prior amounts paid by tenants of the Property and held by Seller as actual or estimated real estate taxes pursuant to Close such tenant’s leases.
(m) If Purchaser shall be assuming the Existing Financing, interest payable on the Existing Financing.
(a) If any of Escrowthe 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 Seller receives are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that (i) with the exception of any further item required to be apportioned pursuant to Section 5.4.1(a), (b) or supplemental tax ▇▇▇▇ relating (g), neither party shall have the right to request apportionment or reapportionment of any period such item at any time following the one hundred eightieth (180th) day after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, Closing Date and not later than ten (10ii) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions items required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one (1) year anniversary of the Closing Date. If the Closing shall occur before a real estate or personal property tax rate or assessment is fixed for the tax year in which the Closing occurs, the apportionment of taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing.
(b) If Purchaser shall be assuming the Existing Financing, Purchaser shall be given a credit at the Closing for the then current principal balance of the Existing Financing and Seller shall be given a credit for the amount of all security, escrows and deposits held in connection with the Existing Financing (to the extent not replaced by Purchaser or released by Existing Lender).
5.4.3 Items to be prorated at the Closing shall include a credit to Seller for costs and expenses incurred by Seller in connection with any new Leases or modifications to any existing Leases entered into after the date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of this Agreement except for any such costs and expenses designated as Seller Leasing Costs in the following sentence. Except as set forth on Exhibit Q (the “Purchaser Assumed Pre-Existing Brokerage and TI Costs”), Seller shall be responsible for all brokerage and leasing commissions and tenant improvement costs for the initial term of all Leases entered into prior to execution the date of this Agreement and for any extension, renewal or expansion of any such Lease exercised prior to the date of this Agreement (collectively, “Seller Leasing Costs”). At Closing, Purchaser shall receive a credit against the Purchase Price for any portion of the Purchaser Assumed Pre-Existing Brokerage and TI Costs still outstanding and payable by Purchaser post-closing. Purchaser shall be paid by Sellerresponsible for and expressly assumes the obligation to pay all Purchaser Assumed Pre-Existing Brokerage and TI Costs and all brokerage and leasing commissions, tenant improvement costs and Seller shall indemnify other costs and hold Buyer harmless expenses including attorney’s fees for Lease commission claims brought against the Property arising therefrom. All leasing commissions for any new leases executed entered into either prior to or from and 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilitiesextension, claims, demands, suits, and judgments, renewal or expansion of any kind existing Lease exercised or nature, including court costs entered into either prior to or from and reasonable attorneys' fees (except those items which under after the terms date of this Agreement specifically become including, without limitation amounts owed under the obligation Brokerage Agreements, provided in all such instances, the term of Buyer)such Lease, brought by extension, or expansion or the Tenant or any other third parties regularly scheduled payment of rent commences from and based on events occurring on or before after the date of closing and which are in this Agreement (collectively, “Purchaser Leasing Costs”). If at the Closing Seller has paid any way related Purchaser Leasing Costs, the prorations at the Closing shall include an appropriate credit to Seller. If at the PropertyClosing there remain unpaid Seller Leasing Costs, Purchaser shall expressly assume the responsibility to pay such unpaid Seller Leasing Costs, and all expenses related thereto, including but not limited the prorations at the Closing shall include an appropriate credit to court costs and attorneys' feesPurchaser.
6.7.4. Buyer agrees to indemnify and hold Seller harmless 5.4.4 The provisions of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by this Section 5.4 shall survive the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by SellerClosing.
Appears in 1 contract
Prorations. 6.7.115.1 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' liabilities, if any, for such items); tenant reimbursement obligations for operating expenses paid by Seller for the period prior to the Closing Date; 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"). Real property 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 respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, assessmentspayable in installments which are due prior to the Closing Date shall be paid by Seller. Assessments, rentsexcluding regular ad valorem real estate taxes, security depositspayable 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 CAM expenses 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 final except as provided in Paragraphs 15.2, 15.3 and 15.
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 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. Rents and other charges under the Lease that are delinquent as of the Close Proration Date. To the extent the Leases provide for the adjustment of Escrow will previously paid estimates of Additional Rent on a date after the Proration Date, Seller shall be entitled to receive, or shall be responsible to pay, as the case may be, its pro rata share of any such adjusted amounts which are applicable to periods ending prior to the Proration Date. If the Additional Rent due from tenants for 1996 (exclusive of Additional Rent due from Corestates Bank) is less than $20,000, Seller shall receive a credit from Purchaser at Closing for such amount due, and such credit shall be final, irrespective of the amounts actually collected by Purchaser from tenants). If the Additional Rent due from tenants for 1996 is greater than $20,000 (exclusive of Additional Rent due from Corestates Bank), Purchaser's credit to Seller for amounts in excess of $20,000 shall be escrowed at Closing, and disbursed to Seller based on the amount actually collected from tenants. Notwithstanding the foregoing, Purchaser shall not be prorated, obligated to credit Seller at Closing for any Additional Rent due from Corestates Bank in excess of $20,000 and rents any amount due from Corestates Bank in excess of $20,000 shall be escrowed and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied disbursed in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred same manner provided in the foregoing sentence with respect to Additional Rent due from other tenants. Purchaser shall deliver to each tenant of the collected amounts; Property (iiwith a copy of each to Seller) a final reconciliation of Additional Rent due for calendar year 1996 on or before March 15, 1996. Purchaser shall use reasonable efforts (without any obligation to terminate leases or initiate lawsuits) to rents due collect such Additional Rent from such tenants. On or before June 1, 1996, Purchaser shall provide Seller with a reconciliation of the amount of all Additional Rent collected from tenants for calendar year 1996, and the amount so collected shall be promptly disbursed from the aforementioned escrow to Seller (or paid by Purchaser to Seller from amounts collected, if the escrowed amount is less than the full amount of Additional Rent collected for calendar year 1996). Notwithstanding anything to the contrary herein, the provisions of this Paragraph shall survive the Closing.
15.3 All basic rent paid following the Closing Date by any tenant of the Property who is indebted under the a Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action basic rent for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close the Proration Date in an amount greater than the amount of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating all current basic rent owed by said tenant to any period after Close of Escrow, the recipient Purchaser shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior 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 delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 150 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close the Post-Closing Receipts reconciliation statement and upon the verification of Escrow.
6.7.2additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution This Paragraph 15.3 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless recording of the Deed.
15.4 All refunds in connection with any ongoing real estate tax protests for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date of this Agreement shall be prorated between Buyer and initiated by Seller as their respective periods of ownership bear prior to the primary term Closing shall remain the property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the new lease.
6.7.3. Seller event any such refunds are paid to Purchaser, Purchaser agrees to indemnify and hold Buyer harmless of and from promptly remit all such sums to Seller. Purchaser agrees, at no cost or expense to Purchaser, to execute any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought documents reasonably requested by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are Seller in any way related to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' feesconnection with such tax protests.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (collectively, the “Proration Items”):
(i) to Buyer's actual out-of-pocket costs of collection incurred Rents, in accordance with respect to the collected amounts; Section 10.4(b) below.
(ii) Seller shall credit Purchaser at Closing with all cash Security Deposits and any prepaid rents, together with any interest to rents due under be paid to the Lease for the month in which the payment is received by Buyer; Tenant thereon.
(iii) to rents attributable to any period after the Close of Escrow that Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are past due 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 estimated adjustment shall be made for the days between the meter reading date of receipt; and the Closing Date based on the most recent meter reading.
(iv) to rents Amounts payable under the Service Contracts.
(v) All real estate and other charges delinquent as personal property taxes and assessments, prorated for the period for which such taxes and assessments are assessed, regardless of when payable, on the basis of the Close number of Escrow (days in such period the Property will have been owned by Seller and Buyer promptly will remit these amounts to Purchaser, respectively. If the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rentscurrent tax ▇▇▇▇ is not available at Closing, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against then the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations proration shall be based made on the latest available basis of the most recent ascertainable tax ▇▇▇▇. Any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and assessments for the fiscal year in which Closing occurs have been determined but have not been paid before Closing, Seller shall be charged and Purchaser credited at Closing with an amount equal to that portion of such taxes and assessments which relates to the period before the date of Closing, and Purchaser shall pay the taxes and assessments prior to the same becoming delinquent. If, after Close subsequent to the Closing Date, real estate taxes (by reason of Escrowchange in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, Buyer receives a new computation shall be made, and Seller agrees to pay Purchaser any further increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or supplemental to be incurred in connection with any real estate tax ▇▇▇▇ relating appeals that are pending at the time of Closing. Notwithstanding anything to the contrary contained in this Agreement, Seller reserves the right to meet with governmental officials and to continue to contest any reassessment or assessment of the Property or any portion thereof as set forth on Exhibit P and to attempt to obtain a refund for any taxes previously paid. Seller shall retain all rights with respect to any refund of taxes applicable to any period prior to Close the Closing Date and Purchaser shall retain all rights with respect to any refund of Escrowtaxes applicable to any period on or after the Closing Date
(vi) [This section intentionally omitted.]
(vii) Seller shall be responsible for all salary, bonus (including any stock bonus) and benefits owed to the Company California Employees on account of employment prior to the Closing. To the extent that any of Westcore Management’s employee benefits impose a waiting period on new employees before such benefit will be available, and Seller or MCRC has the ability to continue comparable benefits post-Closing in favor of the Company California Employees, during all or a portion of such waiting period, payment to Seller receives any further or supplemental tax MCRC of the costs of continuing such benefits for such period. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as 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 ▇▇▇▇▇▇▇▇ relating 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 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 Close Closing and attributable to any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of Escrowbuilding operation and maintenance costs and expenses as provided for under the Lease, to the recipient extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. For purposes of this Agreement, rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to (i) pursue legal action to enforce collection of any such amounts owed to Seller by any Tenant, (ii) terminate the Lease with respect to any such Tenant, or (iii) terminate any Tenant’s right to possession under such Lease. After the Closing, if Purchaser declines to pursue a collection action against a Tenant for Delinquent Rental, then Seller shall promptly deliver a copy have the right to do so; provided, however, that Seller shall not (A) terminate any Lease or terminate or disturb Tenant’s right to possession thereunder, or (B) commence any lawsuit until the earlier of one year after the Closing Date or one month prior to the expiration of the statute of limitations with respect to such tax claim. All sums collected by Purchaser from and after Closing from each Tenant (excluding tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to the other partymonth in which the Closing occurs, then to current amounts owned by such Tenant to Purchaser and not later than ten (10) days prior then to the delinquency date shown on delinquencies owed by such tax ▇▇▇▇ Buyer and Tenant to Seller. Any sums due Seller shall deliver will be promptly remitted to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 6.7.1. Real property taxesNotwithstanding anything contained in the Agreement to the contrary, assessments, rents, security deposits, and CAM expenses Buyer shall be prorated through Escrow between Buyer and Seller as receive a credit against the Purchase Price at Closing for the following amounts:
9.1 the total amount of Close of Escrow. Rents, all security deposits and CAM expenses shall provided for in the Leases, together with interest thereon in the amounts set forth in or as required to be approved by Buyer prior to Close of Escrow. Rents and other charges accrued, as applicable, under the Lease Leases, regardless of whether the tenants under such Leases actually paid such security deposits or interest was actually earned thereon; provided, however, that Buyer shall not be entitled to receive a credit against the Purchase Price for any security deposits that are delinquent provided for in any Lease which have not been collected by Seller but as of to which Seller has provided Buyer a release from such tenant thereunder, in form and substance acceptable to Buyer, with respect to such security deposit;
9.2 any prepaid rents and/or free rental periods under the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or Leases attributable to the period after the Close of Escrow in respect of the Lease will be applied in the following orderClosing, including, without limitation: (i) rent prepaid by E. ▇▇▇▇▇▇ & Associates, Inc. ("S▇▇▇▇▇") under the certain Lease dated August 4, 1997 between Center Office and S▇▇▇▇▇ for the period from the Closing Date through February 15, 1997; and (ii) rent prepaid by JPR Capital Corp. ("JPR") under that certain Lease dated December 12, 1996 between Center Office and JPR for the months of December, 1997 and December 1998;
9.3 $48,420.00 with respect to BuyerCenter Retail's actual out-of-pocket costs obligation under the A▇▇▇▇▇ Lease to reimburse A▇▇▇▇▇ for tenant improvements currently under construction, which reimbursement has not been paid by Center Retail as of collection incurred the Closing Date;
9.4 $27,702.00 with respect to Center Office's obligation under EXHIBIT D of the Dialysis Centers Lease to reimburse Dialysis Centers for tenant improvements, which reimbursement has not been paid by Center Office as of the Closing Date;
9.5 $47,073.75 with respect to the collected amountsLandscape Obligation; (ii) and
9.6 $300,000.00 with respect to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close "Product Improvement Plan" imposed by Radisson Hotels International Inc. in connection with the Assignment and Assumption of Escrow (and License Agreement for Radisson Suite Hotel Boca Raton. The credits for which provision is made in the foregoing SUBPARAGRAPHS 9.1 through 9.6 constitute full settlement of all obligations of Seller to Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 leasematters set forth therein.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Real Property (Arvida JMB Partners L P)
Prorations. 6.7.1. Real property taxesSubject to the terms of this Section 9.1, assessmentsat or prior to the Closing, rentsthe parties shall prorate, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents11:59 p.m. on the date immediately preceding the Closing Date (the “Prorations Time”), security deposits all income and CAM expenses shall be approved with respect to the Property and payable to or by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be proratedLLC, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following orderincluding, without limitation: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due all real property taxes on the date of receipt; and (iv) to rents and other charges delinquent as basis of the Close fiscal period for which assessed (if the Closing shall occur before the tax rate is fixed, the apportionment of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations taxes shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any rate for the preceding period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ applied to the latest assessed valuation); (ii) rents and other partytenant payments and tenant reimbursement, if any, received under the Leases; (iii) charges for water, sewer, electricity, gas, fuel, steam, vault taxes and not later other utility charges (other than ten (10) days prior those charges required to be paid directly to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller utility company by Tenant) all of which shall deliver to be read promptly before the taxing authority their respective shares of such tax ▇▇▇▇Closing; (iv) periodic fees for licenses, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements permits or other authorizations with respect to the Property Property; and (v) all other items customarily prorated in connection with transactions entered into prior to execution of the type contemplated by this Agreement Agreement. A further proration shall be paid by Sellermade between the parties when the tax b▇▇▇ for the tax year in which the Closing occurs becomes available. In conjunction with such prorations, Seller will assign to Purchaser its share of all utility deposits which are assignable (and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought be credited with such amounts). In connection with the calculation of the Purchase Price under Section 2.1 hereof, it is anticipated that the items prorated hereunder will be adjusted on an aggregate basis against the Property arising therefrom. All leasing commissions for new leases 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 net proceeds of the new lease.
6.7.3hypothetical sale of the Property for $362,000,000. Seller agrees to indemnify and hold Buyer harmless Accordingly, for purposes of and from any and all liabilitiesadjusting the Purchase Price between Purchaser, claims, demands, suitsin its capacity as purchaser of Seller’s LLC Interest, and judgmentsSeller, in its capacity as seller of any kind Seller’s LLC Interest, the Seller shall bear 66 2/3% of the amounts debited hereunder, and shall receive 66 2/3% of the amounts credited hereunder, for the items of income and expenses prorated or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring adjusted hereunder for periods on or before the date of closing and which are in any way related to the PropertyProration Time, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless Purchaser shall bear 66 2/3% of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are in any way related to the Propertyamount debited hereunder, and all expenses related thereto, including, but not limited to, court costs shall receive 66 2/3% of the amounts credited hereunder for the items of income and attorneys' fees, provided, that expense prorated or adjusted hereunder for periods after the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by SellerProrations Time.
Appears in 1 contract
Sources: Agreement (Overseas Partners LTD)
Prorations. 6.7.1. Real property taxesSubject to the other provisions of this Section, assessments, rents, security deposits, and CAM expenses the items pertaining to the Project that are identified in this Section shall be prorated through Escrow between Buyer the parties on a per diem basis (employing the actual number of calendar days in the period involved and Seller a 365-day year) so that credits and charges with respect to such items for all days preceding the Closing Date shall be allocated to Seller, and credits and charges with respect to such items for all days including and after the Closing Date shall be allocated to Purchaser. All prorations not specifically agreed to herein shall be made in accordance with customary practice in the county in which the Project is located. This Section 7.D. shall survive the Closing to the extent provided below. The Purchase Price for the Property shall be subject to prorations and credits as follows to be determined as of Close 12:01 A.M. on the Closing Date, the Closing Date being a day of Escrowincome and expense to Purchaser:
1. Rents, security deposits Rents payable under Tenant Leases. Purchaser shall receive a credit at Closing for all rents collected by Seller prior to the Closing and CAM expenses allocable to the period from and after the Closing Date. No credit shall be approved by Buyer given the Seller for accrued and unpaid Rent or any other non-current sums due from tenants until said sums are paid. Any portion of any rents collected subsequent to the Closing Date and properly allocable to periods prior to Close the Closing Date shall be paid, within thirty (30) days after receipt, to the Seller, but subject to all of Escrowthe 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. Rents and other charges Purchaser shall use reasonable efforts for a period of six (6) months after the Closing Date to collect any rent under the Lease that are delinquent Tenant Leases which is past due as of the Close of Escrow will Closing and remit such collections to Seller within thirty (30) days after receipt; provided, however, Purchaser shall not be proratedobligated to sue ▇▇▇ tenants. Any rent collected from a tenant by Purchaser shall be applied first to any past due rents owed to Purchaser and second to any past due rents owed to Seller; and any rent collected from a tenant by Seller shall be promptly remitted to Purchaser to the extent there are any past due rents owed to Purchaser; provided, however, if Seller uses any special efforts to collect any rent, including filing a lawsuit, any collections by Seller resulting from such special efforts shall be applied first to any past due rents owed to Seller. Seller shall have the right to sue ▇▇▇ants for rent accrued for the period prior to Closing as long as Seller does not sue ▇▇ terminate any Tenant Leases or evict any tenants.
2. Seller shall be entitled to retain all adjustment rent or escalation payments collected under the Tenant Leases and payable for the period prior to Closing for taxes, operating expenses and HVAC charges for the Project, and Purchaser shall retain all such rent or payments payable for the period after Closing. Purchaser shall be responsible for adjusting with the tenants all such payments for the year in which the Closing occurs in accordance with the terms of the Tenant Leases. Upon any final adjustment for the year in which the Closing occurs, Seller shall remit to Purchaser for payment to the tenants any adjustment rent or escalation payments paid to Seller under the Tenant Leases in excess of the amounts due from the tenants for such taxes and expenses, and any amounts due Seller from the tenants shall be promptly remitted to Seller within thirty (30) days after collection from the tenants. Any collections of adjustment rent or escalation payments from tenants shall be applied in the same order as set forth above for base rent.
3. Percentage rents payable under any Tenant Leases shall be preliminarily allocated as of the Closing Date with Seller entitled to any such percentage rents payable for any period prior to the Closing Date and other amounts received by Buyer on or Purchaser entitled to any such percentage rents payable for any period after the Close Closing Date. Within one hundred twenty (120) days after the end of Escrow the fiscal year for each Tenant Lease, Seller and Purchaser shall reprorate such percentage rents based on the portion of the fiscal year for such Tenant Lease during which the Project was owned by Seller and the portion during which the Project was owned by Purchaser, without regard to when during such fiscal year such percentage rents were payable.
4. Real estate taxes imposed in respect of the Lease will be applied in Project for the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect current year and to the collected amounts; (ii) to rents due under the Lease extent unpaid, for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent prior years shall be prorated as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller)Closing Date. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations Such proration shall be based on the latest available tax ▇▇▇▇. Ifamount of taxes which would be payable, after Close any applicable discounts, if the taxes are paid at the earliest possible date, regardless of Escrowwhen such taxes are actually paid. If the amount of any such taxes have not been determined as of Closing, Buyer receives such credit shall be based on the most recent ascertainable taxes and shall be reprorated upon issuance of the final tax bill. ▇eller shall also give Purchaser a credit for any further or supplemental tax ▇▇▇▇ relating to any period special assessments against the Project which are due and payable prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of EscrowClosing.
6.7.25. All leasing commissions owing Utilities and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are in any way related to the Property, and all expenses related theretofuel, including, but not limited towithout limitation, court costs steam, water, electricity, gas and attorneys' feesoil. The Seller shall cause the meters, providedif any, that for utilities to be read the foregoing indemnity shall not be construed day on which the Closing Date occurs and to limit pay the effect of, nor shall it be applicable to bills rendered on the subject matter of, basis of such readings. If any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.such meter
Appears in 1 contract
Sources: Purchase and Sale Agreement (General Growth Properties Inc)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses 5.4.1 The following shall be prorated through Escrow between Buyer Seller and Seller Purchaser as of Close 11:59 p.m. on the day preceding the Closing Date (on the basis of Escrowthe actual number of days elapsed over the applicable period) with the Closing Date being a date of income and expense for Purchaser:
(a) All real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. RentsIn 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). Notwithstanding anything to the contrary contained herein, taxes shall be prorated utilizing the maximum available discount for prepayment of such taxes.
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges if, as and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits together with all interest thereon, if any, payable to such tenants (to the extent the foregoing were made by tenants under the Leases and CAM expenses shall be approved by Buyer are not applied or forfeited prior to Close 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 Escrowletters of credit. Rents and other charges under the Lease that which are delinquent as of the Close of Escrow will Closing Date shall not be prorated, 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 and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will Closing Date, such payments shall be applied in first toward the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) Closing occurs, second to the rents attributable for the month preceding the month in which the Closing occurs, third to the rents that shall then be due and payable to Purchaser, and fourth to any delinquent rents owed to Seller, with Seller's share thereof being held by Purchaser in trust for Seller 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 after 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 Close of Escrow that are past due on the date of receipt; and (iv) right to pursue any remedy against any tenant owing delinquent rents and any other charges amounts to Seller (but shall not be entitled to terminate any lease or any tenant's right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall reasonably cooperate with Seller, at no cost to Purchaser, in any collection efforts hereunder (but shall not be required to litigate or declare a default under any Lease). With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Close of Escrow Closing Date, Seller shall retain all rights relating thereto.
(c) All operating expenses.
(d) Intentionally deleted.
(e) Charges and Buyer promptly will remit these amounts payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the Seller). Buyer will use commercially reasonable efforts Assignment and Assumption of Contracts.
(f) Any prepaid items, including, without limitation, fees for licenses which are transferred to collect any delinquent rentsPurchaser at the Closing and annual permit and inspection fees.
(g) Utilities which are not payable directly to the utility provider by a tenant, provided that Buyer has no obligation including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action adjustment after the Close Closing when the next bills are available, or if current meter readings are available, on the basis of Escrow against 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 Tenant Property if the same are assigned to collect any sums purportedly owed by Purchaser at the Tenant Closing, which shall be credited in their entirety to Seller. Tax and assessment prorations shall be based .
(i) Personal property taxes, if any, on the latest available tax ▇▇▇▇. If, after Close basis 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrowfiscal year for which assessed.
6.7.2. All leasing commissions owing (j) Intentionally deleted.
(k) Intentionally deleted.
(l) Such other items as are customarily apportioned between sellers and tenant improvements with respect purchasers of real properties of a type similar to the Property and located in the Commonwealth of Pennsylvania subject to Section 7.2.3(a) hereof.
(a) Seller shall be given a credit for any payments Seller shall have made as of the Closing Date in respect of the expenditures described on EXHIBIT I attached hereto and made a part hereof. Notwithstanding the foregoing, Purchaser shall be obligated to pay any and all costs and expenses incurred prior to, or from and after, the Closing Date, in connection with the pre-development of Lot #6 at the Westpark Property. In addition, subject to the provisions of this Section 5.4.2(a), Purchaser shall bear all costs and expenses related to the transactions contemplated by that certain Lease Agreement dated December 30, 1997 by and between Westpark, as landlord, and Behr Process Corporation ("Behr"), as tenant (the "Behr Lease"), as amended by that certain Amendment to Lease Agreement dated August 2, 2001 (the "Behr Amendment") regarding the Expansion Premises (as such term is defined in the Behr Amendment) and Behr's expansion option as set forth in the Behr Lease, including, without limitation, (i) all outstanding construction costs and expenses incurred in connection with the Expansion Premises (which Seller estimates to be in the aggregate amount of $1,211,793.25) and (ii) any costs and expenses incurred in connection with correcting outstanding HVAC issues of Behr as set forth in the Behr Amendment.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that, with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one hundred eightieth (180th) day after the Closing Date. If the Closing shall occur before a real estate or personal property tax rate or assessment is fixed for the tax year in which the Closing occurs, the apportionment of taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing.
5.4.3 Items to be prorated at the Closing shall include a credit to Seller for costs and expenses incurred by Seller in connection with any new Leases or modifications to any existing Leases entered into 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 executed after the date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new leaseAgreement.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms 5.4.4 The provisions of this Agreement specifically become Section 5.4 shall survive the obligation of Buyer), brought by the Tenant or any other 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' feesClosing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses The following shall be prorated through Escrow adjusted between Buyer Seller and Purchaser: i. Proration Items. Seller and ▇▇▇▇▇▇▇▇▇ agree to adjust, as of Close of Escrow. Rents11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Proration Time”), security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (collectively, the “Proration Items”): (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; real estate and personal property taxes and assessments, (ii) utility bills (except as hereinafter provided), and (iii) collected Rentals (subject to rents due the terms of Section 8.e(iii) below), (iv) operating expenses payable by the owner of the Property, and (v) all payments required to be made by the tenant under the Lease for ad valorem taxes, insurance, common area maintenance and/or other operating expenses of the month Property (“Reimbursable Tenant Expenses”) in which accordance with Section 8.e(iv) below. Seller will be charged and credited for the payment is received by Buyer; (iii) amounts of all of the Proration Items relating to rents attributable the period up to any and including the Closing Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller)Closing Proration Time. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment Such preliminary estimated Closing prorations shall be based set forth on the latest available tax a closing statement to be prepared by ▇▇▇▇▇▇ and submitted to Purchaser for Purchaser’s approval prior to the Closing Date. IfThe Closing Statement, after Close of Escrowonce agreed upon, Buyer receives any further or supplemental tax shall be signed by ▇▇▇▇▇▇▇▇▇ relating to any period prior to Close of Escrow, or and Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ and delivered to the other party, and not later than ten (10) days prior Title Company for purposes of making the preliminary proration adjustment at Closing subject to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2final cash settlement provided for below. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement 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 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 shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefromPurchaser. All leasing commissions for new leases executed after the date of this Agreement shall No prorations will be prorated between Buyer and Seller as their respective periods of ownership bear made in relation to the primary term of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suitsinsurance premiums, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall Seller’s insurance policies will not be construed assigned to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by SellerPurchaser.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Contract (Artivion, Inc.)
Prorations. 6.7.1. Real Sellers and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), security depositsexpenses under the Permitted Exceptions, and CAM expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Sellers will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Sellers and Seller as of Close of Escrowsubmitted 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”). RentsThe Closing Statement, security deposits and CAM expenses once agreed upon, shall be approved signed by Buyer prior Purchaser and Sellers and delivered to Close the Title Company for purposes of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. Rents and other charges under The preliminary proration shall be paid at Closing by Purchaser to Sellers (if the Lease that preliminary prorations result in a net credit to Sellers) or by Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are delinquent not known as of the Close Closing Time, the prorations will be made at Closing on the basis of Escrow 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 Sellers and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Sellers’ insurance policies will not be prorated, assigned to Purchaser. Final readings and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax final ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating for utilities will be made if possible as of the Closing Time, in which event no proration will be made -38- at the Closing with respect to any period prior utility bills (except to Close the extent covered by the proration of EscrowOperating Expense Recoveries). 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 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 Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrowbefore November 30, 2016 (herein, the recipient shall promptly deliver a copy “Final Proration Date”). The provisions of such tax ▇▇▇▇ to this Section 10.4 will survive the other partyClosing until the Final Proration Date has occurred, and not later than ten (10) days in the event any items subject to proration hereunder are discovered prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to Final Proration Date, the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement same shall be paid promptly prorated 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under parties in accordance with the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are in any way related Section 10.4. Notwithstanding anything to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are contrary provided in any way related to the Property, and all expenses related thereto, this Agreement including, but not limited to, court costs this Section 10.4(a), Sellers and attorneys' feesPurchaser hereby agree to use the following, provided, that estimated 2016 real estate taxes and assessments for purposes of the foregoing indemnity shall not be construed to limit proration of same at Closing: (x) $470,000.00 for the effect of, nor shall it be applicable to Shoppes at Parkland Real Property and the subject matter of, any of Seller's representations Shoppes at Parkland Improvements and warranties expressed in this Agreement or in (y) $180,000.00 for the closing documents delivered by SellerUniversity Palms Real Property and the University Palms Improvements.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 6.7.1(a) Rents and any additional charges and expenses payable by Tenants under Leases; real property taxes and assessments; water, sewer and utility charges; amounts payable under any Service Contracts (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 date immediately preceding the Closing Date (i.e., Purchaser is entitled to the income and responsible for the expenses of the day of Closing), on the basis of a 365-day year and otherwise in accordance with this Section 10.5. Real property Seller shall deliver draft prorations to Purchaser at least five (5) 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, assessmentscollected 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 except as provided in this Section 10.5(b). All rent or other sums collected or received by Seller after Closing shall be promptly remitted to Purchaser to be applied and distributed in accordance with this Section 10.5(b). All rent received by Purchaser after Closing shall be applied first to current rentals and then to delinquent rentals in the 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 Property, rentsprovided, 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 event Seller receives rents from Tenants applicable to periods after the Closing Date, Seller shall immediately forward the full amount of such rents to Purchaser to be 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, and CAM expenses 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 payable in the year in which the Closing occurs (“Current Tax Year”) shall be prorated through Escrow between Buyer Purchaser and Seller as based upon the number of Close of Escrow. Rents, security deposits and CAM expenses days in the Current Tax Year prior to the Closing Date (which shall be approved by Buyer prior allocated to Close Seller) and the number of Escrowdays in the Current Tax Year on and after the Closing Date (which shall be allocated to Purchaser). Rents Fees and other charges under the Lease that are delinquent as of Service Contracts (other than the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow Terminated Contracts) in respect of the Lease will most recent billing period which includes the Closing Date (“Current Billing Period”) shall be applied prorated on a per diem basis based upon the number of days in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect Current Billing Period prior to the collected amounts; Closing Date (iiwhich shall be allocated to Seller) to rents due under and the Lease for number of days in the month in which the payment is received by Buyer; (iii) to rents attributable to any period Current Billing Period on and after the Close of Escrow Closing Date (which shall be allocated to Purchaser) and assuming that all fees and charges are past due on incurred uniformly during the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller)Current Billing Period. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations Calculations hereunder shall be based upon the most recent statement rendered to Seller by the applicable service provider and, after an actual statement covering the Current Billing Period is received, a copy shall be delivered to Purchaser or Seller, as applicable, and the 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 latest available tax ▇▇▇▇. IfClosing 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 Close the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of Escrow, Buyer receives any further money based on such subsequent proration(s) or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient credits shall promptly deliver a copy of such tax ▇▇▇▇ pay said sum to the other party within sixty (60) days thereafter. Upon request of either party, the parties shall provide a detailed and not later 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 ten sixty (1060) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 executed after the date of this Agreement Closing, Seller and Purchaser shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term make a final calculation of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any real estate taxes, operating expenses and all liabilities, claims, demands, suits, and judgments, of any kind other prorations or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are in any way related to 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 all expenses related theretotaxes than it is entitled to retain after the final reconciliations are completed, including but not limited Seller shall pay such excess to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent Purchaser for refund to the date tenants, and if Seller has collected less in estimated payments than it is entitled to receive after the final reconciliations are completed, Purchaser shall pay such amounts to Seller when and as collected from the tenants. No insurance policies of closing and which the Seller are in any way related to be assigned or otherwise transferred to the PropertyPurchaser, and all expenses related thereto, including, but not limited to, court costs and attorneys' fees, provided, that no apportionment of the foregoing indemnity premiums therefor shall not be construed to limit the effect of, nor made. The provisions of this Section 10.5 shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Sellersurvive Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Prorations. 6.7.113.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as ▇▇▇ts (exclusive of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, but including an action for unlawful detainer, against prepaid rents); security deposits which are refundable under the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed leases; escrow and/or impounds held by the Tenant Lender (which will be assigned to Purchaser and credited to Seller. Tax ); interest on the First Note; water and assessment prorations other utility charges; fuels; operating expenses; real and personal property taxes; and other similar items shall be based adjusted ratably as of 11:59 p.m. on the latest available tax ▇▇▇▇later of the Closing Date or the actual date of the closing of this transaction ("Proration Date"), and credited to the balance of the cash due at Closing. IfAssessments 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, after Close the adjustments thereof shall be on the basis of Escrow, Buyer receives the most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 13.2 below.
13.2. All basic rent paid following the Closing Date by any further or supplemental tax ▇▇▇▇ relating to tenant of the Property who is indebted under a lease for any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, and including the recipient Closing Date shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay to Seller an amount equal to the delinquency date shown on amount such tax ▇▇▇▇ Buyer and Seller Post-Closing Receipt exceeds the amount currently due by the tenant paying such Post-Closing Receipt under its lease. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder provided, however, that Purchaser shall not be required to instigate litigation to collect Post-Closing Receipts. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the 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. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution Paragraph 13.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leasedeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses (a) The following shall all be prorated through Escrow between Buyer and Seller as of Close 12:01 a.m. on the date of Escrow. RentsClosing, security deposits and CAM expenses shall be approved by Buyer prior to Close on the basis of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following ordera 365-day year: (i) to Buyer's actual out-of-pocket costs of rents, and all other income from the Property, if any, including, without limitation, any additional charges, prepaid rent, if any, and any other expenses payable under the Leases, if any, all as and when actually collected (whether such collection incurred with respect to occurs prior to, on, or after the collected amountsClosing Date); (ii) to rents due real property taxes and assessments for the year in which the Closing occurs, (iii) water, sewer and utility charges, (iv) amounts payable under the Lease any service contracts for the month in which the payment is received Closing occurs and prior months, (v) annual permits and/or inspection fees (calculated on the basis of the period covered), and (vi) any other expenses relating to the operation and maintenance of the Property. For three (3) months following the Closing, Buyer shall include all rent arrearages, if any, on Buyer's monthly invoices or billings to tenants ▇▇▇ ▇▇omptly deliver to Seller any such rent arrearages that relate to periods prior to the Closing if and when collected by Buyer; (iii) to rents attributable to any period PROVIDED, HOWEVER, that Rents received by Buyer after the Close Closing Date shall be first applied to Rents accruing after the Closing Date, and then to Rents accruing prior thereto. Buyer shall be under no obligation to recover for the benefit of Escrow that are past due on Seller any unpaid Rents owing by tenants for periods prior to Closing Date. Seller shall have the right before the Closing, to take such action as Seller deems appropriate to recover any unpaid Rents for periods prior to the date of receipt; Closing, and (iv) after the date of Closing, Seller may pursue any and all remedies available to rents and Seller in law or equity to recover unpaid Rents for periods prior to the date of Closing. The amount of any security or other charges delinquent deposits as actually collected, IF ANY, or similar fees paid by tenants under the Leases, as to the extent actually collected, shall be credited against the cash portion of the Close of Escrow (Purchase Price; accordingly, Seller shall retain the deposit and/or similar fees paid by tenants under the Leases, as actually collected, and Buyer promptly will remit these amounts to shall be responsible for handling all security deposits of the Seller)tenants of the Property in accordance with the Leases and applicable law. Seller shall retain all utility deposits, if any. Seller and Buyer will use commercially reasonable efforts to collect hereby agree that if any delinquent rentsof the aforesaid prorations cannot be calculated accurately on the Closing Date, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against then the Tenant. In no event will Seller commence or maintain any action same shall be calculated within thirty (30) days after the Close Closing Date, or as soon as sufficient information is available to permit the parties to accurately calculate such proration(s), and either party owing the other party a sum of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be money based on the 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 recipient such subsequent proration(s) shall promptly deliver a copy of such tax ▇▇▇▇ pay said sum to the other party, and not later than party within ten (10) days prior after such calculation is made; PROVIDED, HOWEVER, that the tax prorations and assessments referenced in Section (ii) herein shall be final as of the Closing Date. Notwithstanding anything to the delinquency date shown on contrary contained herein, to the extent any of the foregoing Property-level expenses are the responsibility of Tenant pursuant to the terms of the CitiCorp Lease, then such tax ▇▇▇▇ expense items shall NOT be prorated --- between Seller and Buyer at Closing.
(b) 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 shall deliver to each paying half. Recording charges, transfer taxes and any other expenses of the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to escrow for the Property transactions entered into prior to execution of this Agreement sale shall be paid by SellerBuyer. All costs and charges described in this paragraph shall be paid at Closing. Any bills received after the Closing and not previously prorated in escrow shall be divided as provided herein, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date of this Agreement shall be prorated between Buyer and paid promptly upon receipt of a bill therefor. Seller as their respective periods of ownership bear to shal▇ ▇▇y for the primary term costs of the new lease.
6.7.3Survey. Seller agrees to indemnify and hold Buyer harmless of and from shall pay any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are in any way taxes related to any change in use of the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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 Escrow12.1. Rents and other charges under the Lease that are delinquent as (exclusive of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation but including prepaid rents); refundable security deposits (which will be assigned to institute legal proceedings, including an action for unlawful detainer, against and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the Tenant. In no event will Seller commence or maintain any action after the Close amount of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax 5%; real and assessment prorations personal property taxes; and other similar items shall be based adjusted ratably as of 11:59 p.m. on the latest available tax ▇▇▇▇Closing Date, and credited to the balance of the cash due at Closing. IfAssessments 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, after Close the adjustments thereof shall be on the basis of Escrow, Buyer receives the most recent ascertainable data. All prorations will be 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 further or supplemental tax ▇▇▇▇ relating to tenant of the Property who is indebted under a lease for basic rent for any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, and including the recipient Closing Date shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior 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 delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the 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. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leasedeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series I)
Prorations. 6.7.1. Real Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), security depositsexpenses under the Permitted Exceptions, and CAM expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer 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) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. Rents, security deposits and CAM expenses The preliminary proration shall be approved paid at Closing by Buyer prior Purchaser to Close 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 Escrowthe Purchase Price at the Closing. Rents and other charges under If the Lease that actual amounts of the Proration Items are delinquent not known as of the Close Closing Time, the prorations will be made at Closing on the basis of Escrow the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be prorated, assigned to Purchaser. Final readings and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax final ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to any period prior utility bills (except to Close the extent covered by the proration of EscrowOperating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. 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 Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrowbefore November 30, 2016 (herein, the recipient shall promptly deliver a copy “Final Proration Date”). The provisions of such tax ▇▇▇▇ to this Section 10.4 will survive the other partyClosing until the Final Proration Date has occurred, and not later than ten (10) days in the event any items subject to proration hereunder are discovered prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to Final Proration Date, the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement same shall be paid promptly prorated 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under parties in accordance with the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are in any way related Section 10.4. Notwithstanding anything to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are contrary provided in any way related to the Property, and all expenses related thereto, this Agreement including, but not limited to, court costs this Section 10.4(a), Seller and attorneys' feesPurchaser hereby agree to use the following, provided, that estimated 2016 real estate taxes and assessments for purposes of the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any proration of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Sellersame at Closing: $110,000.00.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Preferred Apartment Communities Inc)
Prorations. 6.7.1. (a) Real property taxestaxes and assessments; water, assessments, rents, security deposits, sewer and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved utility charges; amounts payable under any Service Contracts or other agreements or documents assumed by Buyer prior to Close in accordance with the terms and conditions of Escrow. Rents and other charges under Section 7.2; annual permits and/or inspection fees (calculated on the Lease that are delinquent as basis of the Close of Escrow will not be prorated, period covered); and rents and any other amounts received by Buyer on or after the Close of Escrow in respect expenses of the Lease will be applied in maintenance of the following order: Property (i) to Buyer's actual out-of-pocket costs of collection incurred including, without limitation, expenses prepaid by Seller and expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as amount of the Close of Escrow (and Buyer promptly will remit these amounts to the Sellerprepaid or unamortized portion thereof). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall all be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close 11:59 p.m. on the day immediately prior to Closing (i.e., Buyer is entitled to the income and responsible for the expenses of Escrow.
6.7.2the day of Closing), on the basis of a 365-day year. All leasing commissions owing and tenant improvements Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property transactions entered if the utility companies agree, in writing, that such deposits shall be transferred to Buyer for its account. Buyer shall cause all utilities to be transferred into Buyer’s name and account at the time of Closing. To the extent Seller does not receive a credit for a deposit, Seller hereby retains the rights to such deposit and to pursue such amounts. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, then the same shall be calculated as soon as reasonably practicable after the Closing Date, and 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. Seller retains the right to pursue and control any pending tax appeals applicable to periods prior to execution the tax year of the Closing, and Buyer shall cooperate with Seller with respect to such appeals at no material cost or expense to Buyer. Any refund of real property taxes or special assessments relating to the period prior to Closing shall be for the account of Seller. To the extent Buyer receives any such refund, Buyer shall remit such refund to Seller within five (5) business days of receipt thereof. Notwithstanding the foregoing, Buyer and Seller shall reasonably and jointly pursue and control any tax appeals applicable to the current tax year, and the parties shall prorate all costs incurred and recovered in connection therewith based on the portion of the proceeds of any tax appeal recovery allocable to each party’s respective period of ownership of the Property.
(b) Except as provided in Article IV, Section 6.2 and Section 9.5 of this Agreement Agreement, (i) Buyer shall be responsible for all survey costs, the cost of any ALTA policy, title endorsements and other title fees, and all escrow or closing fees, (ii) Seller will be responsible for the County documentary transfer tax, and (iii) all other costs and expenses not listed in subclauses (i) and (ii) above, 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 executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear at Closing in accordance with prevailing local custom in the city, county and state in which the Property is located. The parties will execute and deliver any required transfer or other similar tax declarations to the primary term of the new leaseappropriate governmental entity at Closing.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms c) The provisions of this Agreement specifically become Section 8.5 shall survive the obligation of Buyer), brought by the Tenant or any other 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' feesClosing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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 Escrow12.1. Rents and other charges under the Lease that are delinquent as (exclusive of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation 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 institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant and assumed by Purchaser and credited to collect any sums purportedly owed by the Tenant to Seller. Tax Purchaser at Closing); water and assessment prorations other utility charges; fuels; operating expenses; real and personal property taxes; and other similar items shall be based adjusted ratably as of 11:59 p.m. on the latest available tax ▇▇▇▇later of the Closing Date or the actual date of the closing of this transaction ("Proration Date"), and credited to the balance of the cash due at Closing. IfAssessments 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, after Close the adjustments thereof shall be on the basis of Escrow, Buyer receives the most recent ascertainable data. All prorations will be 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 further or supplemental tax ▇▇▇▇ relating to tenant of the Property who is indebted under a lease for any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, and including the recipient Closing Date shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay to Seller an amount equal to the delinquency date shown on amount such tax ▇▇▇▇ Buyer and Seller Post-Closing Receipt exceeds the amount currently due by the tenant paying such Post-Closing Receipt under its lease. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder provided, however, that Purchaser shall not be required to instigate litigation to collect Post-Closing Receipts. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the 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. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leasedeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1Prepaid or accrued (as the case may be) interest on the Loan Documents, rents for the month of the Closing (exclusive of delinquent rents, but including prepaid rents); any previously paid signing bonus or similar payment relating to any laundry room, cable, telephone or similar agreement in effect as of the Closing, refundable security deposits with interest if required by local law (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); refundable and non-refundable pet and cleaning fees and deposits, water and other utility charges; fuels; prepaid operating expenses; 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 Closing Date ("Proration Date"), and credited or debited to the balance of the cash due at Closing. Real property taxes, assessments, rents, security deposits, and CAM expenses taxes shall be 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. Rents and other charges under based on the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied following information in the following ordercircumstances: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to if the collected amountscurrent tax b▇▇▇ is available, real property taxes shall be prorated based on that tax b▇▇▇; (ii) to rents due under if the Lease tax b▇▇▇ for the month in which current tax year is not available and the payment assessed valuation for the Property for the current tax year is received by Buyernot available, real property taxes shall be prorated based on 106% of the most recently available tax b▇▇▇; and (iii) to rents attributable to any period after if the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇b▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental for the current tax ▇b▇▇▇ is not available but the assessed valuation for the Property for the current tax year is available, real property taxes shall be prorated based on 101% of the tax rate for the prior tax year multiplied by the equalization factor for the prior tax year, if applicable, multiplied by the current assessed valuation for the Property. In addition, Seller shall receive as a credit from Purchaser the amount of any escrow and reserve accounts relating to the 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 period after Close amounts, if any, then owing by the Seller to the Lender which are unrelated to the assumption of Escrowthe 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 recipient adjustment thereof shall promptly deliver a copy be on the basis of such tax ▇▇▇▇ the most recent ascertainable data. All prorations will be final except as to the other partyDelinquent Rents referred to in 13B below, and not later than ten (10) days errors in calculation on the closing statement. If special assessments have been levied against the Property for completed improvements, then the amount of any installments which are due prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement Closing Date shall be paid by the Seller, ; and Seller the amount of installments which are due after the Closing Date shall indemnify and hold Buyer harmless for Lease commission claims brought against be paid by the Property arising therefromPurchaser. All leasing commissions assessments for new leases executed after the date of this Agreement incomplete improvements shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new leasepaid by Purchaser.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. 6.7.1. Real property taxesAt least two (2) business days prior to, assessments, rents, security deposits, and CAM expenses shall be 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. Rents and other charges under the Lease that are delinquent but calculated as of the Close Closing Date, all obligations and liabilities listed below relating to the Business and/or Assets will be prorated as of Escrow will not be proratedthe Closing Date, with Sellers 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 rents and other amounts received by Buyer Purchaser liable to Sellers therefor to the extent such items relate to any time period commencing on or after the Close of Escrow in respect of the Lease will be applied in the following orderClosing Date: (i) to Buyer's actual out-of-pocket costs of collection incurred personal property, real estate, occupancy and water taxes, if any, on or with respect to the collected amountsBusiness and/or Assets; (ii) to rents due rents, taxes and similar items payable by Sellers under any Assigned Contract; the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable amount of any license or registration fees with respect to any period after Permits which are being assigned or transferred hereunder; the Close amount of Escrow that sewer rents and charges for water, telephone, electricity and other utilities and fuel; and any other items which are past due 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 paid to Purchaser by Sellers or to Sellers by Purchaser, as the case may be, on the date of receipt; Closing Date and (iv) shall be treated as an adjustment to rents and other charges delinquent as the Purchase Price paid by Purchaser to Sellers 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 Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax most recently ascertainable ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, therefor and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement shall be paid by Seller, reprorated between Sellers and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed Purchaser within 30 days after the date of this Agreement Closing Date and a cash settlement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new leasemade promptly thereafter on an item by item basis.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real A. Rents (exclusive 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) and 1996 real and personal property taxes, assessments, rents, security deposits, ; and CAM expenses other similar items shall be prorated through Escrow between Buyer and Seller adjusted ratably as of Close 12:01 a.m. on the Closing Date. Assessments of Escrow. Rents, security deposits and CAM expenses record payable in installments which are due subsequent to the Closing Date shall be approved paid by Buyer prior to Close Purchaser. If the amount of Escrow. Rents and other charges under the Lease that are delinquent as any of the Close of Escrow will items to be prorated is not then ascertainable, the adjustments thereof shall be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect basis of the Lease will be applied in most recent ascertainable data. The parties agree to re-prorate the following order: proration items within forty-five (i45) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period days after the Close of Escrow that are past due on the date of receipt; and (iv) Closing, except as to rents and other charges delinquent as rent referred to in Paragraph 12B below.
B. All sums paid following the Closing Date by any tenant of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action Property who is indebted under a lease for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient all then current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior 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 delinquency date shown on such tax ▇▇▇▇ Buyer Property 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 the terms hereof. At Seller's expense, 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. Seller shall deliver to Purchaser any sums received by Seller after the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect Closing Date which relate to the Property transactions entered into period of time prior to execution the Closing Date, along with an accounting identifying any such sums. Paragraph 12B of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leaseDeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Sale Agreement (Balcor Realty Investors 86 Series I)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, deposits expenses and CAM expenses other prorateable items shall be 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. Rents and other charges under the Lease that are Any delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received collected by Buyer on or after shall be paid to Seller. Seller shall have the Close of Escrow in respect of the Lease will be applied in the following order: (i) right to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease pursue any Tenant for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rentsrent, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the but shall not cause a Tenant to collect any sums purportedly owed by the Tenant to Sellerbe delinquent for their current rent or become financially unstable. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow. 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 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 indemnify, defend and hold Buyer harmless for Lease from and against all leasing commission claims brought against Buyer or the Property arising therefrom. If any of such tenant improvements have not been completed prior to close of Escrow, Seller shall credit Buyer at the Closing with the reasonable estimated cost of completing such tenant improvements. All leasing commissions for new leases 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 leaseLease, renewal or expansion.
6.7.3. Seller agrees to indemnify indemnify, defend and hold Buyer harmless of from and from against any and all liabilities, damages, losses claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing 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.
6.7.4. Buyer agrees to indemnify indemnify, defend and hold Seller harmless of from and from 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 the Tenant or any other third parties and based on events occurring subsequent to the date of closing 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxesThe following items relating to the Assets, assessments, rents, security depositsthe ownership of the PGE Colstrip Interests, and CAM expenses shall the operation of the Colstrip Facilities, will be prorated through Escrow between Buyer and allocated pro rata per diem for the tax year that includes the date of the Closing, with Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer liable for such items to the extent they are allocable to the period prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as date of the Close Closing and Purchaser liable for such items to the extent they are allocable to periods beginning with and subsequent to the date of Escrow will not be prorated, and rents and other amounts received by Buyer the Closing:
(a) Property Taxes on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; Assets.
(iib) Rents, additional rents, Taxes, to rents due the extent normally adjusted in connection with similar transactions, and other items payable by Seller under the Lease Real Property Leases and the Business Contracts.
(c) The amount of rents, Taxes and charges for sewer, water, telephone, electricity and other utilities relating to the month Real Property and the real property subject to the Real Property Leases.
(d) All other items (excluding other Taxes) normally adjusted in which connection with similar transactions. Except as otherwise agreed by the payment is received by Buyer; (iii) to rents attributable to any period after parties, the Close net amount of Escrow that are past due all such prorations will be settled and paid on the date of receipt; and the Closing. At least ninety (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (1090) days prior to the delinquency date shown Closing Date, Seller will provide Purchaser with a reasonably detailed schedule showing a calculation of the estimated prorations as if the Closing were occurring on such tax ▇▇▇▇ Buyer and Seller date. If the Closing shall deliver occur before a real estate Tax rate is fixed, the apportionment of Taxes shall be based upon the Tax rate for the preceding year applied to the taxing authority their respective shares of latest assessed valuation and such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement Taxes shall be paid by reprorated upon the request of Seller, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against on the Property arising therefrom. All leasing commissions for new leases executed one hand, or Purchaser, on the other hand, made within sixty (60) days after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to that the primary term of the new lease.
6.7.3actual amounts become available. Seller agrees and Purchaser agree to indemnify furnish each other with such documents and hold Buyer harmless of other records as may be reasonably requested in order to confirm all adjustment and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of proration calculations made pursuant to this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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' feesSection 1.06.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real (a) As between Assignee and Tenant, revenues and expenses, utility charges for the billing period in which the Transfer Date occurs, real and personal property taxes, assessments, rents, security deposits, certain prepaid expenses and CAM expenses other related items of revenue or expense attributable to the Facility shall be prorated through Escrow between Buyer Tenant and Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent Assignee as of the Close of Escrow will not Transfer Date. In general, such prorations shall be proratedmade so that as between Assignee and Tenant, and rents and other amounts received by Buyer on or Tenant shall be reimbursed for prepaid expense items to the extent that the same are attributable to periods after the Close Transfer Date and Tenant shall remain responsible for the payment as and when due of Escrow in respect 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 Lease will 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 Transfer Date.
(b) All such prorations shall be applied made on the basis of actual days elapsed in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any relevant accounting or revenue period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest most recent information available tax ▇▇▇▇to Tenant. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period Utility charges which are not metered and read on the Transfer Date shall be estimated based on prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other partycharges, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares be re-prorated upon receipt of such tax ▇▇▇▇, prorated statements therefor as of Close of Escrowthe Transfer Date.
6.7.2. (c) All leasing commissions owing and tenant improvements with respect amounts which are subject to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which proration under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are require adjustment after the Transfer Date shall be settled within thirty (30) days after the Transfer Date or, in any way related 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 Property, and all expenses related thereto, including but not limited amounts subject to court costs and attorneys' feesproration.
6.7.4. Buyer agrees (d) Within five (5) business days after the Transfer Date, Assignee shall remit to indemnify and hold Seller harmless Tenant a cashiers check in an amount equal to any ▇▇▇▇▇ cash (as compared to resident funds) maintained at the Facility by Tenant as of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by SellerTransfer Date.
Appears in 1 contract
Sources: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)
Prorations. 6.7.1(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 and other income from the Property.
(ii) Any prepaid rents.
(iii) Taxes.
(iv) All operating expenses paid by the owner of the Property. Real property taxes, assessments, rents, security depositsSeller 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 CAM expenses Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Seller and Seller as of Close of Escrowsubmitted to Purchaser prior to the Closing Date (the “Closing Statement”). RentsThe Closing Statement, security deposits and CAM expenses once agreed upon, shall be approved signed by Buyer prior Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Close 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 Escrowthe Purchase Price at the Closing. Rents and other charges under If the Lease that actual amounts of the Proration Items are delinquent not known as of the Close Closing Date, the prorations will be made at Closing on the basis of Escrow 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 proratedassigned to Purchaser. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by 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 rents and other amounts received by Buyer payment thereof has not been made on or after before the Close of Escrow in respect of the Lease will be applied in the following order: (i) Proration Time. Purchaser agrees to Buyer's actual out-of-pocket costs of collection incurred use commercially reasonable efforts with respect to the collected amounts; (ii) to rents due under the Lease collection of any Delinquent Rental, but Purchaser will have no liability for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts failure to collect any delinquent rents, provided that Buyer has no obligation such amounts and will not be required to institute pursue legal proceedings, including an action for unlawful detainer, against the to enforce collection of any such amounts owed to Seller by Tenant. In no event 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 Seller commence or maintain any action after the Close of Escrow against the Tenant be applied first to collect any sums purportedly current amounts owed by the Tenant to Purchaser and then to delinquencies owed by Tenant to Seller. Tax and assessment prorations shall Any sums due Seller will be based on the latest available tax ▇▇▇▇promptly remitted to Seller. 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver have no rights after Closing to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect attempt to the 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 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 agrees to indemnify and hold Buyer harmless of and from collect any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which amounts due under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant Lease or any other 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' feesotherwise pursue Tenant.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses The following shall be 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. Rents and other charges under the Lease that are delinquent as of the Close Closing Date and the Purchase Price shall be adjusted accordingly at Closing: (a) rents and any other amounts actually collected from tenants and other persons using or occupying the Properties as of Escrow will the Closing Date; (b) sewer charges, utility 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 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 be proratedto 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 received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations All rent received by Purchaser or Seller after the Closing Date shall be based on applied first to current rentals, then to delinquent rents accruing in the latest available tax ▇▇▇▇. Ifmonth of Closing and then, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any the extent the applicable tenant identifies such rent as attributable to the period prior to Close of EscrowClosing, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days delinquent rentals accruing prior to the delinquency date shown on such tax ▇▇▇▇ Buyer Closing Date. The agreements of Seller and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed Purchaser set forth in this Agreement or in Section 8(a) shall survive the closing documents delivered by SellerClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)
Prorations. 6.7.1(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (b) below), operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed) and amounts payable under Service Contracts assumed by Purchaser on an accrual basis. Real property taxesSeller shall pay all amounts due thereunder which accrue prior to the Closing and Purchaser shall pay all mounts accruing on the Closing Date and thereafter. All capital and other improvements (including labor and materials) which are performed or contracted for or by Seller at or prior to the Closing will be paid by the Seller at or prior to Closing, assessments, rents, security depositswithout contribution or proration from Purchaser. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and CAM expenses Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld, delayed or conditioned) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. Rents, security deposits and CAM expenses The preliminary proration shall be approved paid at Closing by Buyer prior Purchaser to Close 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 Escrowthe Purchase Price at the Closing. Rents and other charges under If the Lease that actual amounts of the Proration Items are delinquent not known as of the Close Closing Time, the prorations will be made at Closing on the basis of Escrow the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be prorated, assigned to Purchaser except as otherwise provided in Section 9 above. Final readings and rents and other amounts received by Buyer on or after the Close of Escrow in respect final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Lease Closing Time, in which event no proration will be applied in made at the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred Closing with respect to utility bills (except to the collected amounts; extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller within sixty (ii60) days after Closing, provided that such reconciliation, as it relates to rents due under real estate taxes shall be made within thirty (30) days following the Lease issuance of the tax bills for the month Real Property for the year in which Closing occurs. The provisions of this Section 10.4 will survive the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on Closing until the date which is six (6) months following the Closing Date (the “Reconciliation Period”), and in the event any items subject to proration hereunder are discovered within such period, the same shall be promptly prorated by the parties in accordance with the terms of receipt; this Section 10.4. Seller and (iv) Purchaser, pursuant to rents and other charges delinquent RCW 60.80.020(1), hereby waive the services of Title Company in administering the disbursement of closing funds necessary to satisfy any unpaid utility charges. Purchaser shall transfer all utilities at the Property to its name as of the Close of Escrow (Closing Date, and Buyer promptly will remit these amounts to where necessary, post deposits with the Seller)utility companies. Buyer will Seller shall use commercially reasonable efforts to cause all utility meters to be read as of the Closing Date. Seller shall be entitled to recover any and all deposits held by any utility company as of the Closing Date. All charges for utilities shall be prorated outside of the escrow contemplated herein within sixty (60) days after the Closing Date. All prorations shall be made in accordance with customary practice in the jurisdiction in which the Real Property is located, except as expressly provided herein. Following the Closing, Seller and Purchaser shall reasonably cooperate with each other in order to calculate and determine the correct amount of all prorations required to be made pursuant to this Section 10.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone 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). 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 delinquent rentsDelinquent Rentals payable to Seller and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. All sums collected by Purchaser within one (1) year after Closing from each Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time governed by Section 10.4(c) below and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, provided that Buyer has no obligation which shall be payable to institute legal proceedingsand belong to Seller in all events) will be applied first to amounts currently owed by such Tenant to Purchaser (including Delinquent Rentals attributable to the period after the Closing Time), including an action for unlawful detainerthen any collection costs of Purchaser related to such Tenant, against the Tenantand then to prior delinquencies owed by such Tenant to Seller. In no event will shall Seller commence initiate litigation or maintain any other legal action after the Close Closing Date to pursue collection of Escrow against the Tenant Delinquent Rentals. Any sums collected by Purchaser and due Seller will be promptly remitted to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement shall be paid by Seller, and any sums collected by Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date of this Agreement shall due Purchaser will be prorated between Buyer and Seller as their respective periods of ownership bear promptly remitted to the primary term of the new leasePurchaser.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Prorations. 6.7.1. Real property taxesAll revenues, assessmentsincome, rents, security deposits, and CAM expenses shall be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax receiv- a▇▇▇▇, prorated costs, expenses and payables of the Property shall be apportioned equitably between the parties as of Close Closing on the basis of Escrow.
6.7.2. All leasing commissions owing the actual number of days in a particular month, and tenant improvements 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:
(i) Monthly rents and percentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Tenant Lease). To the extent Purchaser receives amounts on account of Tenant Leases on or after the Closing Date, such payments shall be applied first toward then current rent owed to Purchaser in connection with the applicable Tenant Lease for which such payments are received, and any excess monies received shall be applied toward the payment of any delinquent rents, 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 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 require to litigate or declare a default in 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 transactions 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 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 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 duration of the same;
(iv) Security Deposits, plus accrued interest, 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 credited (or assigned) to execution Purchaser;
(v) Subject to the provisions of this Agreement 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 charge 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 SellerPurchaser if approved by Purchaser in accordance with Paragraphs 7(a) and 7(b).
(viii) All other operating expenses incurred in the management and operation of the Property. No insurance policies shall be assigned hereunder, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date of this Agreement accordingly there shall be prorated between Buyer and Seller as their respective periods no proration of ownership bear to the primary term of the new leaseinsurance premiums.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
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Prorations. 6.7.1. Real property taxesIt is acknowledged that the Lessee, assessmentsas lessee under the Property Lease, rentsshall continue to operate the Property from and after Closing and, security depositspursuant to said Property Lease, shall be entitled to all revenues generated from, and CAM expenses shall be prorated through Escrow between Buyer obligated to pay all taxes and Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents including all rental due under the Ground Lease) relating to, the Property from and after Closing and during the entire term of the Property Lease (subject, however, to 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 month year in which the payment is Closing Date (i.e., the "Commencement Date" under the Property Lease) occurs, the parties agree as follows:
(a) All revenue received by Buyer; (iii) Seller that relates to rents attributable to any period time periods after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are in any way related to the Property, and all expenses related theretoClosing Date, including, but not limited to, court costs deposits, advance registration and attorneys' other fees previously received by Seller, rents, membership dues, initiation fees, providedprepaid greens fees, that coupon book receipts, gift certificates, discount certificates, locker rentals, tournament fees, tradeouts, function deposits, and bag storage charges, shall be deemed "Golf Course Revenue" or "Other Revenue" (as the foregoing indemnity case may be) under the Property Lease, attributable to periods following the Commencement Date of the Property Lease term on an accrual basis in accordance with generally accepted accounting principles.
(b) All of Seller's receivables, unreceived revenue and deferred income relating to the operation of the Property prior to the Closing Date and not otherwise provided for in this Section 10.2 or elsewhere in this Agreement, shall remain the property of Seller ("SELLER'S RECEIVABLES") and shall not be construed deemed "Golf Course Revenue" or "Other Revenue" under the Property Lease attributable to limit any period falling within the effect ofterm of the Property Lease. It is acknowledged that the Lessee, nor as lessee under the Property Lease, shall it 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 any club member who has an outstanding Seller's Receivables shall be applicable presumed to be payments in respect to the subject matter ofcurrently due charges, any of and thereafter to outstanding Seller's representations and warranties expressed in this Agreement or Receivables in the closing documents delivered by Sellerinverse order of maturity.
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Prorations. 6.7.112.1. Real property taxes, assessments, Rents (exclusive of delinquent rents, but including prepaid rents); refundable security depositsdeposits (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) and 1996 real and personal property taxes and assessments; accrued but unpaid interest on the outstanding indebtedness owed to the Lender and other similar items shall be adjusted ratably as of 12:01 a.m. on the Closing Date. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. In addition, Purchaser shall give Seller a credit at Closing for all escrows, reserves, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved holdbacks held by Buyer prior to Close of Escrow. Rents and other charges the Lender under the Lease Loan Documents, including, without limitation, any real estate tax reserves, insurance reserves, debt service reserves, and capital replacement reserves, subject to the provisions of Paragraph 12.2 below. After the Closing, the Seller shall have no right to proceed in any manner or make any claim against Tenants occupying the Property from and after Closing for rents that are were delinquent as of the Close Closing Date. Except as otherwise specified in Paragraph 12.2 below, thirty (30) days after the Closing Date, Seller and Purchaser shall make a final reconciliation of Escrow will not be proratedall Closing prorations.
12.2. All basic rent paid to Purchaser, and rents and other amounts received by Buyer its Affiliates, or their Representatives on or after the Close of Escrow in respect Closing Date by any Tenant of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due Property who is indebted under the Lease a lease for the month in which the payment is received by Buyer; (iii) to rents basic rent attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts prior to the Closing Date shall, after payment therefrom to Purchaser of all current basic rent from such Tenant, be deemed a "Seller Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Seller Receipt, Purchaser shall pay such Seller Receipt to Seller). Buyer will Purchaser shall use all commercially reasonable efforts to collect any delinquent rentsamounts which, provided that Buyer has no obligation to institute legal proceedingsupon collection, including an action for unlawful detainer, against the Tenantwould constitute Seller Receipts hereunder. In no event will Seller commence or maintain any action Within 120 days after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. IfClosing Date, 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Purchaser shall deliver to Seller a reconciliation statement of Seller Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Seller Receipts reconciliation, prorated as Purchaser shall deliver to Seller any Seller 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2. All leasing commissions the Seller Receipts reconciliation statement and upon the verification of additional funds owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement shall be paid by Seller, Purchaser shall pay to Seller said additional Seller Receipts and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date cost of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of performing Seller's representations and warranties expressed in this Agreement or in audit. This Paragraph 12.2 shall survive the closing documents delivered by SellerClosing.
Appears in 1 contract
Prorations. 6.7.1. Real All normal and customarily proratable items, including without limitation, real estate and personal property taxes, taxes and assessments, rentsutility bills (except as hereinafter provided), security depositscollected rents and other income, and CAM expenses Operating Contract payments (under Operating Contracts assumed by Buyer), shall be 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. Rents and other charges under the Lease that are delinquent as of the Close Closing Date, Seller being charged and credited for all of Escrow will not be prorated, the same relating to the period up to the Closing Date and rents Buyer being charged and other amounts received by Buyer credited for all of the same relating to the period on or and after the Close Closing Date. If the amount of Escrow in respect any such item is not known at the time of the Lease will delivery of the Deed, such item shall be applied apportioned on the basis of the comparable period of the prior year with a reapportionment within thirty (30) days of the Closing Date or as soon thereafter as the amount of the item is actually determined. No proration shall be made in relation to delinquent rents, common area expense charges or tax payments (collectively, “Delinquent Rents”) existing, if any, as of the following order: Closing Date. To the extent that such Delinquent Rents or reimbursement obligations are paid or payable after Closing, Buyer agrees to use reasonable efforts to secure said Delinquent Rents and reimbursements from the tenants (i) with no obligation, however, to Buyer's actual incur any additional out-of-pocket costs of collection incurred with respect thereto) and as soon as the same are received by Buyer, said receipts shall be applied first to any amounts expended by Buyer to secure Delinquent Rents, then to the collected amounts; (ii) rents owed by such tenant for any period after Closing, then to the rents due under the Lease owed by such tenant for the month in which of the payment is received by Buyer; Closing, and then to Delinquent Rents. Seller reserves the right to bring suit against tenants of the Property to collect for Delinquent Rent (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of due to Seller for the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrowthe Closing) but Seller may not, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date hereof, bring suit for possession 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered premises occupied by Sellersuch tenants.
Appears in 1 contract
Sources: Purchase and Sale Contract (New England Realty Associates Limited Partnership)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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. Rents 15.1 Water and other charges under the Lease that are delinquent as of the Close of Escrow will not be proratedutility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilities, and rents and other amounts received if any, for such items); tenant reimbursement obligations for operating expenses paid by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease Seller for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrowthe Closing Date, or Seller receives less any further or supplemental tax ▇▇▇▇ relating to any amount previously paid by the tenants; unpaid operating expenses for the period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown Closing Date prorated on such tax ▇▇▇▇ Buyer 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 deliver be entitled to a credit for all transferable utility deposits to the taxing authority their 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 shares of such tax ▇▇▇▇utilities involved. Assessments, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect excluding regular ad valorem real estate taxes, payable in installments which are due prior to the Property transactions entered into prior to execution of this Agreement 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 indemnify be the most recent data for the tax year being contested and hold Buyer harmless for Lease commission claims brought against (i) Purchaser agrees to re-prorate such amount as it related to the Property arising therefromreal estate tax proration to the extent such tax contest is successful. All leasing commissions 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 new leases executed after which Purchaser receives credit and Seller is charged pursuant to this Paragraph. Seller and Purchaser agree to cooperate in the date calculation and reporting of this Agreement all closing prorations at least two (2) business days prior to the Closing Date.
15.2 All basic rent collected by Seller shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.12.01 a.m.
Appears in 1 contract
Sources: Sale Agreement (Balcor Equity Pension Investors Ii)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, The Purchase Price set forth in Section 4 is subject to the following adjustments and CAM expenses shall prorations.
10.1 Plus an amount which will credit SELLER for lease payments which have been paid in advance for time periods following Closing ("Prepaid Leases").
10.2 Minus the amounts which will credit BUYER for the following:
10.2.1 Any lease payments for which BUYER becomes obligated relating to any period of time prior to Closing.
10.2.2 Any advertising services delivered after Closing for which SELLER has already billed or otherwise receives payment.
10.2.3 All items of income and expense listed below relating to the Assets will be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be proratedClosing Date, with SELLER liable to the 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 assigned to or assumed by BUYER; (c) the amount of sewer rents and charges for water, telephone, electricity and other amounts received by Buyer 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 Close 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 Escrow in respect percentage leases with the date of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred 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 collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due Closing Date, such payments shall be prorated on the date of receipt; and (iv) to rents and other charges delinquent as basis of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax most recently ascertainable ▇▇▇▇ 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, therefor and shall be reprorated between SELLER and BUYER when the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements current bills with respect to the Property transactions entered into prior to execution of this Agreement such items have been issued and a cash settlement 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 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 leasemade within thirty (30) days thereafter.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes(A) Rents, assessmentsincluding, without limitation, percentage rents, security depositsif any, and CAM 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 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 prepaid or unamortized portion thereof), shall all be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer 11:59 p.m. on the day immediately prior to Close of Escrow. Rents Closing (i.e., Buyer is entitled to the income and other charges under responsible for the Lease that are delinquent as expenses of the Close day of Escrow will 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 amounts received by Buyer on or sums collected after the Close of Escrow in respect of the Lease will Closing shall be applied and paid as provided in this Section 8.5(a). If a tenant or other payor shall specifically designate a payment as being attributable to, or if it is readily ascertainable that a payment received from a tenant or other payor is attributable to a specific period of time or for a specific purpose, including, without limitation, for operating expenses or real estate tax payments which were not paid or were underpaid by such tenant or for reimbursement for work performed by Seller on the following order: (i) tenant's premises, such payment shall be so applied. If there is no such designation or if not so readily ascertainable, any payment received after Closing shall be deemed a payment due after the Closing until the tenant or other payor is current in its post-Closing obligations, and then such payments shall be paid to Buyer's actual out-of-pocket costs of collection incurred with respect Seller to the collected amounts; (ii) extent of any rent or other sums owing to rents due under the Lease Seller for the month in which the payment is received by Buyer; (iii) periods prior to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller)Closing. Buyer will shall use commercially reasonable efforts to collect such rents and other sums owing to Seller but shall not be required to initiate litigation or terminate any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against lease. Seller retains the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant right to collect any such rents and other sums purportedly from tenants and other payors after Closing; provided, however, that Seller shall have no right to evict any tenant or to exercise any other landlord-tenant remedy other than to sue for collection. Without intending to limit the generality of the ▇▇▇egoing, Buyer and Seller acknowledge and agree that certain rental payments by the tenants are collected monthly in arrears and, upon receipt of such payments after Closing, such sums shall be applied toward the period to which they properly pertain, and shall be prorated between Seller and Buyer, with the party receiving same promptly paying to the other party such other party's share thereof. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the Tenant to Seller. Tax and assessment prorations 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 latest available tax ▇▇▇▇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. If, after Close Such income as so calculated shall be prorated between the parties based on the number of Escrow, days each party owned the Property during such year and otherwise in accordance with this Section 8.5(a). Buyer shall promptly reimburse Seller for Seller's prorated share of all expenses that are prepaid by Seller before Closing for which Buyer receives reimbursement from a third party after Closing. The amount of any further or supplemental tax ▇▇▇▇ relating to cash security deposits held by Seller under Leases (plus any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days interest thereon accrued prior to the delinquency date shown on such tax ▇▇▇▇ Buyer of Closing, if required by law or contract) shall be credited against the Purchase Price (and Seller shall deliver be entitled to retain such cash security deposits). Seller shall receive credits at Closing for the taxing authority their respective shares amount of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements any utility or other deposits with respect to the Property transactions entered to the extent such deposits are assignable to Buyer and are so assigned or credited to Buyer at Closing. Buyer shall cause all utilities to be transferred into prior Buyer's name and account at the time of Closing. At Closing, Seller shall transfer to execution Buyer all non-cash security deposits and deliver to Buyer all necessary consents to such transfers (or as soon as reasonably practicable after Closing, if the procedures for such transfer reasonably require a delay in transfer until after the Closing). Between the date of this Agreement Closing and until such transfer takes place, Seller agrees to hold any such non-cash security deposit for the benefit of Buyer. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date or in the case of rents or other charges that are paid in arrears or are otherwise not yet ascertainable or payable as of the Closing Date, 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 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 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. 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 owner's policy of title insurance and all other title charges (including the cost of any extended coverage, endorsements and reinsurance or co-insurance charges) and the cost of the Survey shall be paid one-half by SellerSeller and one-half by Buyer. Seller and Buyer shall each pay one-half of the state deed tax in connection with recording the deed and all recording fees. Any closing escrow fees and other closing charges of the Title Company shall be split equally between Seller and Buyer. Buyer shall be solely responsible for any and all costs and expenses pertaining to its financing of the Property (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 prorated 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 shall indemnify receive a credit at Closing for its prorata share thereof. Once the final amount of percentage rent is determined, the parties shall reprorate, and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed party owing the other shall promptly remit the amount owed no later than fifteen (15) days after the date reproration is determined.
(D) The provisions of this Agreement Section 8.5 shall be prorated between Buyer and Seller as their respective periods of ownership bear to survive the primary term of the new leaseClosing.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM cam expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents, security deposits and CAM cam expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are Any delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received collected by Buyer on or after shall be paid to Seller. Seller shall have the Close of Escrow in respect of the Lease will be applied in the following order: (i) right to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease pursue any Tenant for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rentsrent, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the but shall not cause a Tenant to collect any sums purportedly owed by the Tenant to Sellerbe delinquent for their current rent or become financially unstable. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 leaseLease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. (a) Real estate taxes and assessments, personal property taxes, assessmentsif any, rents, security deposits, rental income and CAM expenses shall be prorated through Escrow between Buyer all other items of income and Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred expense with respect to the collected amounts; (ii) to rents due under Property shall be prorated between Seller and Buyer as of midnight on the Lease night before the Closing Date. Income and expenses for the Property shall be prorated on the basis of the acutal number of days in the month in which the payment is received by Buyer; (iii) to rents Closing Date occurs and on the basis of the accrual method of accounting. All such items attributable to any the period after through and including the Close of Escrow that are past due on the date of receiptClosing Date shall be credited to Seller; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts all such items attributable to the Seller)period following the Closing Date shall be credited to Buyer. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close credited in escrow with (i) any portion of Escrow, Buyer receives any further rental agreement or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements lease deposits with respect to the 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 executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear which are refundable to the primary term of tenants and (ii) rent prepaid beyond the new lease.
6.7.3Closing Date. Seller agrees Buyer shall not be entitled to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind interest on rental agreement or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant lease deposits or any other third parties and based on events occurring prepaid rent accrued on or before the date Closing Date, except for any interest required to be paid to tenants under applicable law or pursuant to the terms of closing the Leases. Seller shall be credited in escrow with any refundable deposits or bonds held by any utility, governmental agency or service contractor with respect to the Property (to the extent the same are assignable to Buyer in connection with the sale of the Property).
(b) Buyer and Seller shall cooperate to produce prior to the Closing Date a schedule of prorations to be made on and after the Closing Date pertaining to the Property as complete and accurate as reasonably possible. All prorations which are can be liquidated accurately or reasonably estimated as of the Closing Date shall be made in any way related escrow on the Closing Date. All other prorations, and adjustments to initial estimated prorations, shall be made by the parties with due diligence and cooperation within 30 days following the Closing Date, or such later time as may be required to obtain necessary information for proration, by immediate cash payment to the party yielding a net credit from such prorations from the other party.
(c) Buyer shall, consistent with reasonable business judgment, exert its reasonable efforts to collect for Seller following the Closing Date all rental income which is delinquent on the Closing Date with respect to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, ; provided, however, that the foregoing indemnity Buyer shall not be construed required to limit commence legal proceedings to collect such rents. Notwithstanding the effect offoregoing proviso, nor Seller reserves the right to pursue any remedy for damages Seller may have against any tenant with respect to such delinquent rents, but Seller shall it not seek to evict any tenant or terminate any Lease based on such default in rental payments. Any sums collected on account of rents after the Closing Date shall be applicable successively applied to the subject matter of, any payment of Seller's representations (i) rent for the Property due and warranties expressed in this Agreement or payable in the month in which the closing documents delivered by Selleroccurs, (ii) rent for the Property due and payable in the months succeeding the month in which the closing occurs (through and including the month in which payment is made), and (iii) rent for the Property due and payable in the months preceding the month in which the closing occurs.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Bre Properties Inc /Md/)
Prorations. 6.7.1. Real property taxes(A) Rents, assessmentsincluding, without limitation, percentage rents, security depositsif any, and CAM any additional charges and expenses shall be prorated through Escrow between Buyer payable under tenant leases, all as and Seller as of Close of Escrow. Rentswhen actually collected (whether such collection occurs prior to, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect 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 Lease will be applied 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 following order: (i) amount of the unamortized portion thereof), shall all be prorated as of 12:01 a.m. on the date the Deed is recorded, on the basis of a 365-day year. Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and costs and free rent, as provided in Section 7.2. Any sums collected by Buyer from tenants after the Closing shall be deemed to apply to rents and other sums that were delinquent at Closing and shall be promptly paid to Seller, and the remainder shall be retained by Buyer to apply to current obligations. Buyer shall use reasonable efforts to collect such delinquent rents and Buyer shall be entitled to reimbursement for all reasonable actual costs incurred by Buyer in collecting such delinquent rents from the amounts collected therefor by Buyer. Seller retains the rights to collect any such delinquent rents from tenants after Closing. The 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, or Seller shall assign its rights therein to Buyer at Closing, and will reasonably cooperate with Buyer post Closing, at no expense to Seller, to facilitate the transfer to Buyer. Seller shall use reasonable efforts to cause all security deposits in the form of letters of credit to be amended or reissued in the name of Buyer as soon as possible after the Closing, and Buyer shall cooperate with Seller in such efforts. Upon delivery to Buyer of the reissued or amended letter of credit, Seller's actual out-of-pocket obligations with respect to such letter of credit shall immediately terminate, and, from and after such delivery of the reissued or amended letter of credit, Buyer shall indemnify Seller and hold harmless and defend Seller from and against any and all claims, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of collection incurred the letter of credit. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the collected amounts; (ii) Property. Seller shall use reasonable efforts to rents due under cause all security deposits in the Lease 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 Buyer's responsibility to transfer utility service for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent Property as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4Closing 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 and all liabilities, claims, demands, suits and judgments, taxing authority as a result of any kind or nature, including court costs and reasonable attorneys' fees, brought a pending tax appeal made by the Tenant or any other third parties and based on events occurring subsequent Seller prior to the date of closing and which are Closing; provided, however, Seller shall remit to Buyer, the proportionate share owed to tenants for amounts in any way related excess of amounts previously paid by such tenants attributable to the period of Seller's ownership of the Property. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, then the same shall be calculated as soon as reasonably practicable after the Closing Date, but no later than March 31, 2001, and all expenses related theretoeither 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, including, but not limited to, court costs and attorneys' fees, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be any county transfer taxes applicable to the subject matter ofsale, and one-half (1/2) of any other transfer taxes applicable to the sale. Buyer shall pay the costs of Seller's representations 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 warranties expressed one-half (1/2) of the escrow fee. Recording charges and any other expenses of the escrow for the sale shall be paid by Buyer and Seller in accordance with customary practice as determined by the Title Company.
(C) The provisions of this Agreement or in Section 8.5 shall survive the closing documents delivered by SellerClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ocwen Asset Investment Corp)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses The following prorations shall be prorated through Escrow made between Buyer Purchaser and Seller as of Close the date of Escrow. Rents, security deposits Closing:
a. All rent and CAM expenses additional rent under the Leases of the Real Property (together the “Rent”) attributable to the period prior to the Closing Date shall be approved by Buyer prior to Close the property of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be proratedSeller, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect all Rent attributable to the collected amounts; (ii) to rents due under Closing Date and the Lease period subsequent thereto shall be the property of Purchaser. If Rent for the month in which the payment is received Closing Date occurs has been paid by Buyer; (iii) either Tenant to rents Seller prior to the Closing Date, then such rent shall be the property of Seller and Purchaser shall receive a credit for all such Rent attributable to any the Closing Date and the period after subsequent thereto. If Rent for the Close of Escrow that are past due on month in which the date of receipt; and (iv) Closing Date occurs has not been paid by either Tenant to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts Seller prior to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rentsClosing Date, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations then such rent shall be based on the latest available tax ▇▇▇▇. If, after Close property of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating Purchaser and Seller shall receive a credit for all such Rent attributable to any the period prior to Close of Escrow, or the Closing Date. Purchaser and Seller receives any further or supplemental tax ▇▇▇▇ relating each agree to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ remit to the other partyother, and not later than ten within thirty (1030) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares after receipt of such tax ▇▇▇▇same, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement shall be paid all Rent received 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 executed them after the date of this Agreement shall be prorated between Buyer and Seller Closing Date which is defined as their respective periods of ownership bear to the primary term property of the new lease.
6.7.3. Seller agrees other party pursuant to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become subparagraph, which obligation shall expressly survive Closing hereunder.
b. Ad valorem taxes and assessments for the obligation year of Buyer), brought Closing hereunder which are not payable by Tenants under the Tenant or any other third parties and based on events occurring on or before Leases (together the date of closing “Taxes”) and which are in any way related attributable to the Propertyperiod prior to the Closing Date shall be the responsibility of Seller, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent such Taxes which are attributable to the date Closing Date and the period subsequent thereto shall be the responsibility of closing and which are in any way related to the PropertyPurchaser, 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 “Base Tax Amount”), which amount shall be pro-rated among the parties at Closing. The Government is obligated to pay all expenses related theretoreal property taxes in excess of the Base Tax Amount (by reimbursement thereof to Landlord under the TSA Lease), including, but not limited to, court costs and attorneys' fees, provided, that the foregoing indemnity such excess shall not be construed pro-rated at Closing, and shall be collected by Purchaser directly from the Government.
c. Purchaser and 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 limit be assigned to Purchaser at Closing shall be jointly reviewed by the effect ofparties immediately following the Effective Date of this Agreement, nor and that based on such review Purchaser and Seller shall it be applicable agree to the subject matter of, any appropriate manner of Seller's representations and warranties expressed in this Agreement or in proration of such items prior to expiration of the closing documents delivered by SellerDue Diligence Review Period.
Appears in 1 contract
Sources: Real Estate Purchase Contract (Commercial Net Lease Realty Inc)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the actually collected amounts; (ii) to rents due under the Lease for the calendar month in which the payment is received by BuyerClosing occurs (exclusive of Delinquent Rent, as hereinafter defined, but including prepaid rents covering a period subsequent to Closing); water and other utility charges; fuels; prepaid revenues and expenses covering a period subsequent to Closing (iiiincluding payments made to Seller arising out of or related to the OPA (defined below), the Redevelopment Plan (defined below) or any affordable housing regulations); real and personal property taxes (“Property Taxes”); and other similar revenue and expense items shall be adjusted ratably as of 11:59 P.M. Pacific Time on the Closing Date (“Proration Date”), and credited or debited to rents the balance of the cash due at Closing. All regular and supplemental taxes and assessments attributable to any the period prior to the Closing Date shall be the responsibility of Seller. All regular and supplemental taxes and assessments attributable to the period after the Close Closing Date shall be the responsibility of Escrow that are past due Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustment thereof shall be on the date of receipt; and (iv) to rents and other charges delinquent as basis of the Close of Escrow (and Buyer promptly most recent ascertainable data. With respect to Property Taxes, if Closing occurs before the current fiscal year’s tax bills are available, the proration will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on upon the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental previous fiscal year’s tax ▇▇▇▇ relating to any period prior to Close of Escrow, or and the proration shall be readjusted and settled by Seller receives any further or supplemental tax ▇▇▇▇ relating to any period and Purchaser within ten (10) business days after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ is issued. If special assessments have been levied against the Property for improvements, then the amount of any installments which are attributable to periods on or prior to the Closing Date shall be 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 partyitems to be prorated hereunder are unavailable on the Closing Date, and not later than a readjustment will be made within ten (10) business days prior to following the delinquency date shown on such tax ▇▇▇▇ Buyer availability of accurate bills and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrowfigures.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale (Behringer Harvard Multifamily Reit I Inc)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses (a) Subject to the provisions of Exhibit E hereto the following shall be prorated through Escrow between Buyer apportioned with respect to the Property:
(i) real property taxes affecting the Realty and Seller as of Close of Escrow. Rentspersonal property taxes affecting the Personalty for the then current year, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close date of Escrow Closing, any apportionment of such taxes with respect to a tax year for which either the tax rate or assessed valuation or both have not yet been fixed to be made upon the basis of the tax rate and/or assessed valuation last fixed; provided that Seller and Purchaser agree that to the extent the actual taxes for the current year differ from the amount so apportioned at Closing, Seller and Purchaser will make all necessary adjustments by appropriate payments between themselves following Closing, such obligation to survive Closing;
(ii) current expenses under the Operating Agreements; and
(iii) gas, electricity, water, trash disposal and other utility charges.
(b) In making such apportionments, Purchaser shall be responsible for real property taxes and other expenses accrued or incurred from and after the date of Closing. All such apportionments shall be subject to post-Closing adjustments as necessary to reflect later relevant information not available at Closing and to correct any errors made at Closing with respect to such apportionments and the party receiving more than it was entitled to hereunder shall reimburse the other party hereto in the amount of such overpayment within thirty (30) days after receiving written demand therefor; provided that the party hereto receiving such notice has received sufficient evidence to verify the amount of such overpayment. In the event such party has not received sufficient evidence to verify the amount of overpayment, such party shall be afforded additional time to verify and/or dispute the amount of overpayment, but in no event longer than thirty (30) days after the notice. Notwithstanding the foregoing, such apportionments shall be deemed final and not subject to further post-Closing adjustments if no such adjustments have been requested after a period of sixty (60) days after the Closing Date. All other matters with respect to apportionments shall be governed by the Closing Memorandum. The provisions of this Section 4.4(b) shall survive Closing.
(c) Governmental assessments against the Realty shall not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations but such assessments shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further paid in full by Seller at or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer Closing Date if the work for which assessment was made has been fully performed, or assumed and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought Purchaser if such work has not been fully performed by the Tenant or any other 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' feesClosing Date.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Dendrite International Inc)
Prorations. 6.7.112.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as ▇▇▇ts (exclusive of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation but including prepaid rents); refundable security, pet and other deposits (which will be assigned to institute legal proceedingsand assumed by Purchaser and credited to 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 Closing Date, including an action for unlawful detainer, and credited against the Tenantbalance of the cash due at Closing. In no event will Seller commence or maintain any action Assessments payable in installments which are not due until after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations Closing Date shall be based 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 latest available tax ▇▇▇▇basis of the most recent ascertainable data. If, after Close All prorations will be 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 Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to the Property who is indebted under a lease for basic rent for any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, and including the recipient Closing Date shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than ten time as all such indebtedness is paid in full. Within thirty (1030) days prior 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 delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the 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 additional funds owing to Seller exceed $1,000 the cost of performing Seller's audit. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leasedeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property For the purpose of this Section 7.5, all references to Transferor shall mean collectively Transferor and each of the Record Title Holders.
7.5.1 Rentals, revenues, and other income, if any, from the Property, taxes, assessments, rentsimprovement bonds, security depositsservice or other contract fees, utility costs, and CAM other expenses affecting the Property shall be prorated through Escrow between Buyer Transferee and Seller Transferor as of Close of Escrow. Rentsthe Closing Date; provided, security deposits and CAM expenses however, that Transferor shall be approved by Buyer prior receive a credit at the Closing in an amount equal to Close of Escrow. Rents and other charges under the Lease rentals that are delinquent as of the Close Closing Date, but only to the extent that such delinquent rentals are due and owing from Tenants occupying a portion of Escrow will not the Property on the Closing Date; and provided further, that Transferee shall be proratedentitled 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 rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect therefore entitled to the collected amounts; (ii) to rents due under the Lease income and responsible for the month in which the payment is received by Buyer; (iii) to rents attributable to any period expenses, after the Close of Escrow that are past due 12:01 a.m. on the date of receipt; and (iv) Closing Date. After the Closing, Transferor shall have no right to proceed in any manner or make any claim against Tenants for rents and other charges that were delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts Closing Date, except to the Seller)extent that any such person no longer occupies any portion of the Property. Buyer will use commercially reasonable efforts to collect any All non-delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against real estate taxes or assessments on the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations Property shall be prorated based on the latest available actual current 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 recipient shall promptly deliver a copy of but if such tax ▇▇▇▇ to has not yet been received by Transferor by the other party, and not later than ten (10) days Closing Date or if supplemental taxes are assessed after the Closing for the period prior to the delinquency date shown on such tax ▇▇▇▇ Buyer Closing, the parties 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 period prior to the Closing and Seller Transferee shall bear all real property taxes, including all supplemental taxes, allocable to the period from and after the Closing. If any expenses attributable to the Property and allocable to the period prior to the Closing are discovered or billed after the Closing, the parties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Transferor shall have borne all expenses allocable to the period prior to the Closing and Transferee shall bear all expenses allocable to the period from and after the Closing. The provisions of this Section 7.5 shall survive the Closing.
7.5.2 Fifteen (15) Business Days prior to the Closing, Escrow Agent shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 each of the new lease.
6.7.3. Seller agrees parties for their review and approval a preliminary closing statement (the "PRELIMINARY CLOSING STATEMENT") setting forth (i) the proration amounts allocable to indemnify and hold Buyer harmless each of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of parties pursuant to this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.Section
Appears in 1 contract
Sources: Acquisition and Contribution Agreement (Apartment Investment & Management Co)
Prorations. 6.7.1. 7.1 Real property taxes, assessments, rents, security deposits, and CAM expenses taxes shall be prorated through Escrow between Buyer and Seller as of Close of EscrowClosing based upon a three hundred sixty-five (365) day year. RentsAt Closing, security deposits and CAM expenses Purchaser shall be approved by Buyer given a credit for all such taxes and assessments which occur prior to Close of EscrowClosing but which are not yet due. Rents All payments and other charges under installments due through the Lease that are delinquent as of the Close of Escrow will not be proratedClosing Date on bonds, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrowspecial taxes, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement 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 shall each provide preliminary figures to the other no later than five (5) days prior to Closing.
7.6 Seller shall assume and pay all debts, charges, claims, damages, and liabilities attributable to leases 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.
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, obligations of landlord under the tenant leases.
7.8 Within ninety (90) days after Closing, Purchaser and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against reconcile the Property arising therefrom. All leasing commissions for new leases executed after the date actual amount of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear revenues or liabilities upon receipt or payment thereof, to the primary term of the new leaseextent those items were prorated or credited at Closing based upon estimates.
6.7.3. 7.9 To the extent in Seller's possession, Seller agrees shall furnish to indemnify Purchaser with the documents identified on Exhibit "B" and hold Buyer harmless in accordance with Section 5 above, a certified listing of all rental deposits and from any and all liabilities, claims, demands, suits, and judgments, move-in fees of any kind or whatever nature, including court costs redecoration, cleaning, and reasonable attorneys' fees (except those items processing charges. All such deposits, fees, and move-in charges shall be transferred to Purchaser at Closing. Prior to Closing, Seller shall deliver to Purchaser the original of each written lease and other rental agreement and a written description of each oral lease or rental agreement which under affects the terms of this Agreement specifically become real estate or improvements, including all amendments and modifications thereof and options to renew or extend the obligation of Buyer)term thereof.
7.10 Seller shall pay any real estate or personal property, brought by the Tenant transfer, excise, or sales taxes or any other third parties and based on events occurring on or before similar taxes due as a result of the date sale 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.
6.7.47.11 Mortgage and other reserves, if any, shall be assigned to Purchaser at Closing. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity Purchaser shall not be construed reimburse Seller for such reserves assigned to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by SellerPurchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Maxus Realty Trust Inc)
Prorations. 6.7.1. Real All rents and other income from the Property, including any initial lump sum or disproportionate payments which shall be allocable over the term of any agreement to which such payments relate, and real estate and personal property ad valorem taxes, assessments, rents, security deposits, and CAM other operating expenses from the Property shall be prorated on the basis of a 365 day year through Escrow between Buyer and Seller as the day preceding the day of Close of EscrowClosing. RentsIf Closing is extended by mutual agreement, security deposits and CAM expenses all adjustments shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent made as of the Close day prior to the extended date. Without limitation upon the foregoing, the following items shall be adjusted or prorated between Contributor and OP as set forth below:
(a) Monthly rents and percentage rent and "passthroughs" of Escrow will real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated, prorated until received; OP shall include such delinquencies in its normal billing and rents and other shall pursue the collection thereof in good faith after the Closing Date (but OP shall not be required to litigate or declare a default in any Tenant Lease). To the extent OP receives amounts received by Buyer on account of Tenant Leases on or after the Close of Escrow in respect of the Lease will Closing Date, such payments shall be applied first toward then current rent owed to OP in connection with the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the applicable Tenant Lease for the month in which such payments are received, and any excess monies received shall be applied toward the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided with Contributor's share thereof being promptly delivered to Contributor. OP 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 Contributor is entitled to receive its share of charges or amounts without first obtaining Contributor's written consent. Contributor hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Contributor. OP shall reasonably cooperate with Contributor in any collection efforts hereunder (but shall not be require to litigate or declare a default in 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, Contributor shall retain all rights relating thereto.
(b) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Contributor and OP if current tax rates differ from the latest previous tax rates as soon as the same are known. Contributor agrees that Buyer has no to the extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, the Contributor or the OP at any time subsequent to Closing but with reference to any period prior thereto during Contributor's ownership thereof, Contributor shall promptly pay to OP an amount equal to such additional assessments or levies. Similarly, if tax refunds become payable for periods during Contributor'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 Contributor) shall be promptly paid over to Contributor. In the event that any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with OP assuming the obligation to institute legal proceedings, including an action for unlawful detainer, against pay any installment due after the TenantClosing Date). In no event will Seller commence shall Contributor be charged with or maintain be responsible for any action increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or lease entered into on or after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of EscrowClosing Date.
6.7.2. All leasing commissions owing and tenant improvements (c) Interest with respect to all indebtedness or liabilities which will be a credit to the Consideration to be paid by OP for the contribution of the Property transactions entered into prior by Contributor;
(d) Transferable annual permits, licenses, and/or inspection fees, if any, on the basis of the duration of the same;
(e) Security Deposits, plus accrued interest, if any, payable thereon to execution tenants, and any other deposits and prepaid rent, shall be credited (or assigned) to OP;
(f) Utility charges levied against Contributor or the Property, and OP shall transfer all such utility services to its name and account immediately upon Closing;
(g) Service Contracts on the basis of this Agreement the charge or premium for the period involved;
(h) Tenant improvements costs and leasing commissions for leases signed after the Effective Date shall be paid by SellerOP if approved by OP in accordance with Section 4.3.
(i) All other operating expenses incurred in the management and operation of the Property. No insurance policies shall be assigned hereunder, and Seller accordingly there shall indemnify and hold Buyer harmless for Lease commission claims brought against be no proration of insurance premiums. Notwithstanding anything to the Property arising therefrom. All leasing commissions for new leases executed after contrary contained in this Agreement, the date provisions of this Agreement Section 6.2 shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new lease.
6.7.3survive Closing. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, Any prorations of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed described in this Agreement or payable by Contributor to OP shall be treated as a reduction in the closing documents delivered amount of the Distribution Loan Proceeds that are distributed to Contributor under Section 1.2(d). Any such prorations payable by SellerOP to Contributor shall be funded by an increase in the amount of the Distribution Loan and the proceeds thereof that are distributed to Contributor under Section 1.2(d) of this Agreement.
Appears in 1 contract
Prorations. 6.7.1. (a) Real estate and personal property taxes, assessmentscosts and revenues (including rents), rents, security depositsmonthly assessments by the Association, and CAM expenses all other proratable items shall be 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. Rents and other charges under the Lease that are delinquent as of the Close date of Escrow Closing. Seller shall pay all applicable sales and/or use tax due on revenues received and purchases made prior to the Closing date and shall comply with all statutory provisions necessary for Purchaser to avoid transferee liability for same. In the event the taxes for the year of Closing are unknown, the tax proration will be based upon the taxes for the prior year and, at the request of either party, the taxes for the year of Closing shall be reprorated and adjusted when the tax ▇▇▇▇ for such year is received and the actual amount of taxes is known.
(b) Purchaser will receive a credit at Closing for the prorated amount of all base or fixed rent payable pursuant to the Leases and all additional rents (collectively, “Rent”) previously paid to, or collected by, Seller and attributable to any period following the Closing Date. Rents are “Delinquent” when they were due prior to the Closing Date, and payment thereof has not been made on or before the Closing Date. Delinquent Rent shall not be prorated, prorated at Closing. All Rent collected by Purchaser or Seller from each tenant under the Leases from and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease Closing will be applied in the following orderas follows: (i) first, to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease Delinquent Rent owed for the month in which the payment is received by Buyer; Closing Date occurs, (ii) second, to any accrued Rents owing to Purchaser after Closing, and (iii) third, to rents Delinquent Rents owing to Seller for the period prior to Closing. Any Rent collected by Purchaser and due Seller will be promptly remitted to Seller. Any Rent collected by Seller and due Purchaser shall be promptly remitted to Purchaser. Purchaser is not required to make efforts to collect Delinquent Rents owed to Seller and Purchaser shall not be required to bring suit to collect same. Notwithstanding anything to the contrary contained herein, Seller shall not be prohibited or restricted from pursuing any tenant under the Leases for any Delinquent Rents due Seller for any period attributable to Seller’s ownership of the Property; provided that Seller shall wait for a period of not less than thirty (30) days following Closing before the initiation of a legal action for collection of Delinquent Rents against a prior tenant of Seller; and Seller’s right to proceed against a former tenant shall be limited to an action for Delinquent Rents and shall not seek to evict any period after tenant of the Close Property or to recover possession of Escrow an tenant’s space.
(c) With respect to electricity, telephone, television, water and sewer services that are past due on metered at the date of receipt; and (iv) to rents Property and other utilities (collectively, “Utilities”), Seller shall endeavor to have the respective companies providing the Utilities read the meters for the Utilities on or immediately prior to the Closing Date. Seller shall be responsible for all charges delinquent based on such final meter reading, and Purchaser shall be responsible for all charges thereafter. If such readings are not obtainable, then, until such time as readings are obtained, charges for all Utilities for which readings were not obtained shall be prorated as of the Close Closing Date based upon the per diem rate obtained by using the last period and bills for such Utilities that are available. Upon the taking of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rentsa subsequent actual reading, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations such apportionment shall be based on adjusted and reprorated to reflect the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any actual per diem rate for the billing period prior to Close of EscrowClosing and Seller or Purchaser, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrowas the case may be, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other partythe amount determined to be due upon such adjustment.
(d) Association charges attributable to the Units shall be current as of the Closing Date. However, any special assessments, capital or other contributions imposed by the Association, including without limitation the January 16, 2014 special assessment for repair work to the Condominium building and past capital expenses of the Association with respect to common areas, the baywall, and not seawall, and any other special assessment imposed by the Association prior to the Closing Date, shall be paid by Seller in full at or prior to Closing (irrespective of whether Seller previously elected to pay such assessments in installments).
(e) All security deposits, prepaid rentals, cleaning fees and other fees and deposits, plus any interest accrued thereon, paid by the tenants under the Leases shall be transferred or credited to Purchaser at Closing. The parties shall exchange figures to calculate prorations no later than ten three (103) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2Closing Date. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution The provisions of this Agreement Section 14 shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against survive the Property arising therefrom. All leasing commissions for new leases 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 leaseClosing.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (collectively, the "PRORATION ITEMS"):
(i) to Buyer's actual out-of-pocket costs of collection incurred Rents, in accordance with respect to the collected amounts; Subsection 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to rents due under the Lease for the month in which the payment is received by Buyer; be paid thereon.
(iii) to rents attributable to any period after the Close of Escrow that Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are past due meters on the date Real Property, Seller will cause readings of receipt; and all said meters to be performed not more than five (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (105) days prior to the delinquency 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) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa.
(v) Such other items of income and expense as are typically prorated at closing similar to the transaction contemplated by this Agreement. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on such tax a preliminary closing statement to be prepared by Seller and submitted to Purchaser two (2) days 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 ▇▇▇▇▇▇▇▇ Buyer 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, but Seller shall deliver will, if necessary, maintain such deposits until such time as Purchaser can post its own deposits (but in no event longer than thirty (30) days after Closing) so that such utility service will not be discontinued to the taxing authority their respective shares Property. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include Tenant's 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 tax Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenant under the Lease 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. 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 Tenant. All sums collected by Purchaser from and after Closing from Tenant (excluding tenant specific ▇▇▇▇, prorated ▇▇▇▇ for tenant work orders and other specific services as of Close of Escrow.
6.7.2described 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 delinquencies owed by such Tenant to Seller. All leasing commissions owing and tenant improvements with respect Any sums due Seller will be promptly remitted to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 6.7.1. Real property taxes, assessments, A. Rents (exclusive of delinquent rents, but including prepaid rents); refundable security deposits, deposits (which will be assigned to and CAM expenses assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; prepaid operating expenses; 1996 (if not paid) and 1997 real and personal property taxes and other similar items shall be prorated through Escrow between Buyer and Seller adjusted ratably as of Close 12:01 a.m. on the Closing Date. Assessments of Escrow. Rents, security deposits and CAM expenses record (other than ad valorem taxes) payable in installments which are due subsequent to the Closing Date shall be approved paid by Buyer prior to Close Purchaser. If the amount of Escrow. Rents and other charges under the Lease that are delinquent as any of the Close of Escrow will items to be prorated is not then ascertainable, the adjustments thereof shall be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect basis of the Lease will be applied in most recent ascertainable data. The parties agree to re-prorate the following order: proration items within forty-five (i45) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period days after the Close of Escrow that are past due on the date of receipt; and (iv) Closing, except as to rents and other charges delinquent as rent referred to in Paragraph 12B below.
B. All sums paid following the Closing Date by any tenant of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action Property who is indebted under a lease for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient all then current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior 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 delinquency date shown on such tax ▇▇▇▇ Buyer Property 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 the terms hereof. At Seller's expense, 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. Seller shall deliver to Purchaser any sums received by Seller after the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect Closing Date which relate to the Property transactions entered into prior to execution period of time after the Closing Date, along with an accounting identifying any such sums. Paragraph 12B of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leaseDeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), security depositsexpenses under the Permitted Exceptions, and CAM expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer 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) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. Rents, security deposits and CAM expenses The preliminary proration shall be approved paid at Closing by Buyer prior Purchaser to Close 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 Escrowthe Purchase Price at the Closing. Rents and other charges under If the Lease that actual amounts of the Proration Items are delinquent not known as of the Close Closing Time, the prorations will be made -37- at Closing on the basis of Escrow the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be prorated, assigned to Purchaser. Final readings and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax final ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to any period prior utility bills (except to Close the extent covered by the proration of EscrowOperating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. 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 Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrowbefore November 30, 2016 (herein, the recipient shall promptly deliver a copy “Final Proration Date”). The provisions of such tax ▇▇▇▇ to this Section 10.4 will survive the other partyClosing until the Final Proration Date has occurred, and not later than ten (10) days in the event any items subject to proration hereunder are discovered prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to Final Proration Date, the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement same shall be paid promptly prorated 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under parties in accordance with the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are in any way related Section 10.4. Notwithstanding anything to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are contrary provided in any way related to the Property, and all expenses related thereto, this Agreement including, but not limited to, court costs this Section 10.4(a), Seller and attorneys' feesPurchaser hereby agree to use the following, provided, that estimated 2016 real estate taxes and assessments for purposes of the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any proration of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Sellersame at Closing: $110,000.00.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 6.7.1Buyer presently occupies the Property as the sole tenant under a triple net Lease with Seller. Real property As such, all taxes, assessments, rents, security depositsutilities, and CAM certain operating expenses associated with the Property are paid by Buyer, as tenant. As such, none of these expenses shall be prorated at Closing. However, at Closing, 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 Escrow between Closing, and Buyer shall be responsible for, and Seller take title to the Property subject to all real property taxes for the year of Closing;
(2) Although rent will be prorated as of Close Closing, the operating (triple net) expenses (excepting real property taxes) will not be. Seller estimates that the operating (triple net) expenses (excepting real property taxes) paid by tenant through the month of EscrowClosing will closely approximate what Seller will have spent (or be obligated to pay) for the period from January 31, 2004 through to the Closing.
(3) Utilities will be transferred to Buyer as of Closing; and
(4) If either party desires to have a reconciliation of the 2004 operating (triple net) expenses (excepting real property taxes) as of Closing, that party must notify the other in writing within fifteen (15) days following Closing. RentsAbsent such notice, security deposits and CAM expenses shall both parties will be approved by Buyer prior deemed to Close of Escrow. Rents and other charges have waived any right under the Lease that are delinquent 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 property taxes) will be reconciled as of the Close date of Escrow Closing. Following the reconciliation, if requested, Buyer will not be proratedpay to Seller the amount, and rents and other if any, that Seller has paid in excess of amounts received paid by tenant under the Lease; Seller will pay to Buyer on or after the Close amount, if any, that tenant has paid in excess of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents amounts actually due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receiptLease; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly party requesting the reconciliation will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ pay to the other party, and not later than ten (10) days prior to $1,000.00 unless the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or reconciliation results in the closing documents delivered by Sellerrequesting 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. 6.7.1Prorations between Seller and Purchaser shall be made within thirty (30) days of the Closing as follows:
(a) All taxes and assessments on the Assets for all prior years and all current year taxes and assessments that are due and payable on or before the Closing shall have been paid in full by Seller on or before the Closing. Real All general real estate, personal property taxes, assessments, rents, security deposits, and CAM expenses ad valorem taxes and assessments for the current year only shall be 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. Rents and other charges under the Lease that are delinquent as of the Close Closing Date on the basis of Escrow will not be proratedthe most recent available information, and rents as adjusted by any known changes relating to the period during which the Closing occurs, but without any adjustment resulting from the sale of the Assets under this Agreement.
(b) All charges for gas, electricity, water, telephone, sewer and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will utilities shall be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent prorated as of the Close Closing Date on the basis of Escrow (and Buyer promptly will remit these amounts 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 Seller)income accruing to Seller and responsible for the Losses and expenses accruing to Seller for the entire day upon which the Closing occurs. Buyer will All such prorations shall be made on the basis of the actual number of days of the month which shall have elapsed as of the day of the Closing and based upon a 365- day year. The amount of such prorations shall be subject to adjustment in cash after the Closing, as and when more complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of make such tax ▇▇▇▇ to the other party, and adjustments not later than ten sixty (1060) days after the Closing Date (which cooperation may include any reasonable inspection of Seller’s books and records). At least three (3) Business Days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Closing Date, Seller shall deliver to Purchaser a tentative statement of prorations setting forth the taxing authority their respective shares preliminary determination of all items to be prorated pursuant to this Section 2.06 and supported by all detail reasonably necessary to make such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2determination. All leasing commissions owing and tenant improvements with respect Prior to the Property transactions entered into prior to execution of this Agreement shall be paid by SellerClosing, Purchaser and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date use commercially reasonable efforts to agree on such statement of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new leaseprorations.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement
Prorations. 6.7.115.1 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' liabilities, if any, for such items); tenant reimbursement obligations for operating expenses paid by Seller for the period prior to the Closing Date; 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"). Real property 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 respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, assessments, rents, security deposits, and CAM expenses payable in installments which are due prior to the Closing Date shall be prorated through Escrow between Buyer and Seller as of Close of Escrowpaid by Seller. RentsAssessments, security deposits and CAM expenses excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be approved paid by Buyer prior Purchaser. If the amount of any of the items to Close be prorated is not then ascertainable, the adjustments thereof shall be on the basis of Escrowthe most recent ascertainable data. Rents and other charges under the Lease that are delinquent If any ongoing real estate tax contest has not been finalized as of the Close of Escrow will not Closing Date, Purchaser and Seller agree that the tax bill existing prior to the cont▇▇▇, shall be prorated, the most recent data for the tax year being contested and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) Purchaser agrees to Buyer's actual outre-of-pocket costs of collection incurred with respect prorate such amount as it relates to the collected amounts; (ii) real estate tax proration for the current tax year to rents due 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.
15.2 All basic rent paid following the Closing Date by any tenant of the Property who is indebted under the a Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action basic rent for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close the Proration Date in an amount greater than the amount of Escrow, or Seller receives all current basic rent and any further or supplemental tax ▇▇▇▇ relating delinquency accruing after the Closing Date owed by said tenant to any period after Close of Escrow, the recipient Purchaser shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt byPurchaser 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, provided Purchaser shall not be obligated to incur any expense, terminate any Lease or institute eviction or legal proceedings to collect "post-closing receipts." Purchaser shall promptly deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the delinquency date shown on such tax ▇▇▇▇ Buyer 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. Seller shall deliver 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 taxing authority their provisions of the respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2Leases. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution This Paragraph 15.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless recording of the Deed.
15.3 All refunds in connection with any ongoing real estate tax protests for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed after the date of this Agreement shall be prorated between Buyer and initiated by Seller as their respective periods of ownership bear prior to the primary term Closing shall remain the property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the new lease.
6.7.3. Seller event any such refunds are paid to Purchaser, Purchaser agrees to indemnify and hold Buyer harmless of and from promptly remit all such sums to Seller. Purchaser agrees, at no cost or expense to Purchaser, to execute any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought documents reasonably requested by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are Seller in any way related to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' feesconnection with such tax protests.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.112.1. Real Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses; real and personal property taxes, assessments, rents, security deposits; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day prior to the Closing Date, and CAM expenses 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 amount of any of the items to be prorated through Escrow between Buyer is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below and except for 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 the preceding sentence, Purchaser and Seller will agree on the amount of the credit to Purchaser. If Seller receives a credit for a utility deposit, Seller shall execute an assignment thereof substantially in the form attached as Exhibit N.
12.2. All monies received after Closing by Purchaser from any tenant of Close the Property who is indebted under a lease for rent for any period prior to 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 Escrow. Rents, security deposits and CAM expenses such monies to current rent shall be approved 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 Buyer prior Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Close Seller. Purchaser shall use good faith 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 EscrowPost-Closing Receipts through the first 90 days after the Closing Date. Rents 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 ($100,000.00) of the balance of the Purchase Price shall be deposited in escrow pursuant to the terms of the Escrow Agreement and shall constitute the "Holdback Escrow Funds". Seller and Purchaser shall set forth the outstanding rents and all other charges monthly payments due and payable to Purchaser (i.e. those allocable to the period of ownership of the Property by Purchaser) under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease Leases for the month in which the payment is received by Buyer; Closing occurs that have not already been credited to Purchaser at Closing (iiithe "Outstanding Rents Due") in a schedule to rents attributable to any period be created and agreed upon within three (3) business days after the Close of Escrow that are past due on the date of receipt; and Closing (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller"Closing Rent Schedule"). Buyer will Upon Closing, Purchaser shall use its best efforts to collect the Outstanding Rents Due. Purchaser shall also use commercially reasonable efforts to collect any delinquent rentsall 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, provided 1997, Purchaser shall deliver to Escrow Agent and Seller a schedule (the "Final Closing Rent Schedule") that Buyer has no obligation to institute legal proceedings, including an action accurately shows: (a) the total rents and all other monthly payments due and payable under the Leases for unlawful detainer, against the Tenantmonth following the month in which the Closing occurs (the "Second Month Outstanding Rents Due"); (b) all Second Month Outstanding Rents Due actually collected by Purchaser as of the date of the Final Closing Schedule (the "Second Month Rents Actually Collected"); and (c) the difference between the Second Month Outstanding Rents Due and the Second Month Rents Actually Collected (the "Second Month Deficiencies"). In no event will Seller commence or maintain addition to setting forth the Second Month Deficiencies, the Final Closing Rent Schedule shall also set forth the Outstanding Rents Due that have still not been collected by Purchaser, together with appropriate documentation supporting any action after such amounts. The sum of (a) the Close Outstanding Rents Due which are still outstanding at the time of Escrow against the Tenant to collect any sums purportedly owed by Final Closing Schedule and (b) the Tenant to Seller. Tax and assessment prorations Second Month Deficiencies shall be based on referred to as the latest available tax ▇▇▇▇"Rent Deficiency Sum". If, after Close This Rent Deficiency Sum will represent Purchaser's opinion of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating the amount owing to any period prior it under the terms of this Paragraph 12.3 and the Final Closing Rent Schedule shall specifically instruct the Escrow Agent to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ disburse an amount equal to the other party, and not later than Rent Deficiency Sum to Purchaser. Seller shall have ten (10) days prior following receipt of the Final Closing Rent Schedule to give Purchaser and Escrow Agent written notice of any objection to the delinquency date shown on such tax ▇▇▇▇ Buyer Final Closing Rent Schedule. If Seller delivers a timely notice of objection then Seller and Seller Purchaser shall deliver work together in good faith to agree upon the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees Final Closing Rent Schedule (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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 the Rent Deficiency Sum) , at which time Seller and attorneys' fees, provided, that Purchaser shall ▇▇▇▇▇ ▇ ▇▇▇nt letter of instruction to Escrow Agent setting forth the foregoing indemnity shall terms of the escrow disbursement. If Seller does not be construed to limit the effect of, nor shall it be applicable reply to the subject matter ofFinal Closing Rent Schedule within ten (10) days then the Rent Deficiency Sum shall be distributed to Purchaser and the remaining Holdback Escrow Funds shall be distrubuted in accordance with the terms of the Escrow Agreement. Paragraph 12.3 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
12.4. If at any time within 120 days of the closing of the escrow account Purchaser receives any monies for which it has previously received payment from Seller pursuant to Paragraph 12.3 above ("Post-Escrow Receipts"), then Purchaser shall be obligated to deliver any such Post-Escrow Receipts to Seller (along with a statement describing the same) within ten (10) days of SellerPurchaser's representations receipt of the same. Seller shall retain the right to conduct an audit of Purchaser's financial records, at no cost to Purchaser, for a period of five (5) months from the close of escrow in order to verify, and warranties expressed only to the extent necessary to so verify, the information discussed in this Paragraph 12. Paragraph 12.4 of this Agreement or in shall survive the closing documents delivered by SellerClosing and the delivery and recording of the Deed.
Appears in 1 contract
Sources: Sale Agreement (Balcor Realty Investors 84 Series Ii)
Prorations. 6.7.13.5.1. Real property taxes, assessments, rents, security deposits, Subject to the terms and CAM expenses shall be 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. Rents and other charges under the Lease that are delinquent as conditions of the Close Time Brokerage Agreement, all items of Escrow will not be prorated, income and rents and other amounts received by Buyer on or after expense arising from the Close of Escrow in respect operation of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred STATIONS with respect to the collected amounts; (ii) to rents due under Purchased Assets and the Lease Assumed Contracts on or before the close of business on the Closing Date shall be for the month in which account of SELLER and thereafter shall be for the payment is received account of PURCHASER. Proration of the items described below between SELLER and PURCHASER shall be effective as of 11:59 p.m., local time, on such date and shall occur as follows with respect to those rights, liabilities and obligations of SELLER transferred to and assumed by Buyer; (iii) PURCHASER hereunder.
3.5.2. Subject to rents attributable to any period after the Close terms and conditions of Escrow that are past due the Time Brokerage Agreement, liability for state and local Taxes assessed on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements Purchased Assets payable with respect to the Property transactions entered into prior tax year in which the Closing Date falls and the annual FCC regulatory fees for the STATIONS payable with respect to execution the year in which the Closing Date falls shall each be prorated as between SELLER and PURCHASER on the basis of this Agreement shall the number of days of the Tax year elapsed to and including the Closing Date.
3.5.3. Prepaid items, deposits, credits and accruals such as water, electricity, telephone, other utility and service charges, lease expenses, license fees (if any) and payments under any contracts or utility services to be paid assumed 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 executed after the date of this Agreement PURCHASER shall be prorated between Buyer SELLER and Seller as their respective periods of ownership bear to PURCHASER on the primary term basis of the new leaseperiod of time to which such liabilities, prepaid items and accruals apply.
6.7.33.5.4. Seller agrees All prorations shall be made and paid insofar as feasible on the Closing Date; any prorations not made on such date shall be made as soon as practicable (not to indemnify exceed ninety (90) days) thereafter. SELLER and hold Buyer harmless PURCHASER agree to assume, pay and perform all costs, liabilities and expenses allocated to each of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of them pursuant to this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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' feesSection 3.5.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spanish Broadcasting System Inc)
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (collectively, the “Proration Items”):
(i) to Buyer's actual out-of-pocket costs of collection incurred Rents, in accordance with respect to the collected amounts; Subsection 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to rents due under the Lease for the month in which the payment is received by Buyer; be paid thereon.
(iii) to rents attributable to any period after the Close of Escrow that Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are past due meters on the date Real Property, Seller will cause readings of receipt; and all said meters to be performed not more than five (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (105) days prior to the delinquency 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) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa.
(v) Such other items of income and expense as are typically prorated at closing similar to the transaction contemplated by this Agreement. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on such tax a preliminary closing statement to be prepared by Seller and submitted to Purchaser two (2) days 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 ▇▇▇▇▇▇▇▇ Buyer 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, but Seller shall deliver will, if necessary, maintain such deposits until such time as Purchaser can post its own deposits (but in no event longer than thirty (30) days after Closing) so that such utility service will not be discontinued to the taxing authority their respective shares Property. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include Tenant’s 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 tax Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenant under the Lease 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. 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 Tenant. All sums collected by Purchaser from and after Closing from Tenant (excluding tenant specific ▇▇▇▇, prorated ▇▇▇▇ for tenant work orders and other specific services as of Close of Escrow.
6.7.2described 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 delinquencies owed by such Tenant to Seller. All leasing commissions owing and tenant improvements with respect Any sums due Seller will be promptly remitted to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Prorations. 6.7.1. Real A. ▇▇▇ts (exclusive 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; accrued but unpaid interest on the Note; fuels; prepaid operating expenses; 1995 (if not paid) and 1996 real and personal property taxes, assessments, rents, security deposits, ; accrued but unpaid interest on the Note and CAM expenses other similar items shall be prorated through Escrow between Buyer and Seller adjusted ratably as of Close 12:01 a.m. on the Closing Date. Assessments of Escrow. Rents, security deposits and CAM expenses record (other than ad valorem taxes) payable in installments which are due subsequent to the Closing Date shall be approved paid by Buyer prior to Close Purchaser. If the amount of Escrow. Rents and other charges under the Lease that are delinquent as any of the Close of Escrow will items to be prorated is not then ascertainable, the adjustments thereof shall be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect basis of the Lease will be applied in most recent ascertainable data. The parties agree to re-prorate the following order: proration items within forty-five (i45) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period days after the Close of Escrow that are past due on the date of receipt; Closing, except as to delinquent rent referred to in Paragraph 12B below. In addition, Purchaser shall give Seller a credit at Closing for all escrows, reserves and (iv) holdbacks held by the Lender under the Loan Documents, except for amounts, if any, of such escrows, reserves and holdbacks applicable to rents and other charges delinquent as expenses which relate to the period prior to the Closing Date for which Purchaser has not been given a credit hereunder.
B. All sums paid following the Closing Date by any tenant of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action Property who is indebted under a lease for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient all then current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior 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 delinquency date shown on such tax ▇▇▇▇ Buyer Property 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 the terms hereof. At Seller's expense, 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. Seller shall deliver to Purchaser any sums received by Seller after the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect Closing Date which relate to the Property transactions entered into prior to execution period of time after the Closing Date, along with an accounting identifying any such sums. Paragraph 12B of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leaseDeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the actually collected amounts; (ii) to rents due under the Lease for the calendar month in which the payment is received by BuyerClosing occurs (exclusive of Delinquent Rent, as hereinafter defined, but including prepaid rents covering a period subsequent to Closing); water and other utility charges; fuels; prepaid revenues and expenses covering a period subsequent to Closing; real and personal property taxes (iii) “Property Taxes”); and other similar revenue and expense items shall be adjusted ratably as of 11:59 P.M. Central Time on the Closing Date (“Proration Date”), and credited or debited to rents the balance of the cash due at Closing. All regular and supplemental taxes and assessments attributable to any the period prior to the Closing Date shall be the responsibility of Seller. All regular and supplemental taxes and assessments attributable to the period after the Close Closing Date shall be the responsibility of Escrow that are past due Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustment thereof shall be on the date of receipt; and (iv) to rents and other charges delinquent as basis of the Close of Escrow (and Buyer promptly most recent ascertainable data. With respect to Property Taxes, if Closing occurs before the current fiscal year’s tax bills are available, the proration will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on upon the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental previous fiscal year’s tax ▇▇▇▇ relating to any period prior to Close of Escrow, or and the proration shall be readjusted and settled by Seller receives any further or supplemental tax ▇▇▇▇ relating to any period and Purchaser within ten (10) business days after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ is issued. If special assessments have been levied against the Property for improvements, then the amount of any installments which are attributable to periods on or prior to the Closing Date shall be 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 partyitems to be prorated hereunder are unavailable on the Closing Date, and not later than a readjustment will be made within ten (10) business days prior to following the delinquency date shown on such tax ▇▇▇▇ Buyer availability of accurate bills and figures. Seller shall deliver instruct its property manager to discontinue data entry operations in the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to on-site computer system for the Property transactions entered into prior to execution (including making deposits of this Agreement shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless rental income) for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring period subsequent to the date close of closing business on December 23, 2011. Seller acknowledges that such discontinuance is intended to afford Seller and which are Purchaser an opportunity to coordinate the transition of the Property in any way related anticipation of Closing and to the Property, and all expenses related thereto, including, but not limited to, court costs and attorneys' fees, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed complete work on prorations as set forth in this Agreement Agreement. Seller shall instruct its property manager to forward to Purchaser or in the closing documents delivered by Sellerits designee final reports to facilitate transition planning and compilation of prorations as soon as practicable after discontinuing such data entry.
Appears in 1 contract
Sources: Agreement of Sale (Behringer Harvard Opportunity REIT II, Inc.)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, (a) The following adjustments to the Purchase Price paid hereunder shall be made between Seller and CAM expenses Purchaser and shall be prorated through Escrow between Buyer (as applicable) on a per diem basis up to and Seller as the day immediately before the Closing Date:
(i) Accrued general real estate taxes for the Property (the “Taxes”) for the year of Close of Escrow. Rents, security deposits and CAM expenses Closing shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent prorated as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer Closing Date on or after the Close of Escrow in respect basis of the Lease will be applied actual taxes for the year, if known, or if unknown, on the basis of the most recent ascertainable taxes, but in either case based on the following order: (i) to Buyer's actual outmaximum 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-of-pocket costs of collection incurred with respect prorate taxes with, if any amount is due, an appropriate payment from one party to the collected amounts; 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) to rents due under the Lease Jupiter Park of Commerce Association annual assessments and dues for the month in which year of Closing (the payment is received by Buyer; “Association Dues”);
(iii) Charges under Contacts to rents attributable to any period after the Close of Escrow that are past due on extent assigned to, and assumed by Purchaser at Closing (the date of receipt“Contract Fees”); and and
(iv) to rents South Florida Water Management District General Water Use Permit No. 50-25845-W fee and other Palm Beach County Wellfield Operating Permit WP-91-054 annual fee (collectively, the “Permit Fees”).
(v) The value of any fuel stored on the Premises, if any, at the price then charged by Seller’s supplier, including any taxes.
(vi) water charges delinquent as and sewer rents, if any, on the basis of the Close of Escrow (and Buyer promptly will remit these amounts to lien period for which assessed, except that if there is a water meter on the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rentsPremises, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against apportionment at the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations Closing shall be based on the latest last available tax ▇▇▇▇reading, subject to adjustment after the Closing when the next reading is available.
(b) Immediately after Closing, Seller shall make available at its offices, all records, contracts, receipts for deposits, unpaid bills, and other papers or documents which pertain to the Property together with all keys and other items, if any, used in the operation of the Property. IfExcept as otherwise expressly set forth in this Agreement, after Close of Escrow, Buyer receives any further Seller makes no representations regarding the existence or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy adequacy of such tax ▇▇▇▇ to documents or items for use in management or operation of the other partyProperty. The foregoing shall not include the separate books, records, correspondence, and not later than ten (10) other documentation of Seller located at its offices. After the Closing, Seller shall have the right to inspect the books and records of the Property for any purpose reasonably related to Seller's prior ownership of the Property. For purposes of all prorations provided for herein, Seller shall be responsible for all days up to and including the day immediately prior to the delinquency date shown on such tax ▇▇▇▇ Buyer Closing Date, and Seller Purchaser shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrowbe responsible for all days thereafter.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 executed after the date of this Agreement shall be prorated between Buyer and Seller (c) Except as their respective periods of ownership bear to the primary term of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed otherwise expressly provided in this Agreement or in the closing documents delivered by Seller(including Section 25 hereof), all pro-rations provided for herein shall be final.
Appears in 1 contract
Prorations. 6.7.115.1 Water and other utility charges due for the period prior to 12:01 a.m. on the Closing Date ("Proration Date") shall be paid by Seller. Real property taxes, assessments, rents, security deposits, and CAM expenses Regular ad valorem real estate taxes shall be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller)Proration Date. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment Real Estate tax prorations shall be based on the latest maximum discounted rate available at Closing. Prior to Closing, Purchaser and Seller shall notify all utilities providing service to the Property of the prospective change in ownership and that all bills for the period from and after the Proration Date shall be paid by Purchaser, with no interruption in service. All utility deposits, if any, may be withdrawn by and refunded to Seller and 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 shall be paid by Seller. Assessments, excluding regular ad valorem real estate taxes, which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. 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. IfAll other prorations will be 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 Close the Proration Date, Seller shall be entitled to receive, or shall be responsible to pay, as the case may be, its pro rata share of Escrowany 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, Buyer receives or any further of its affiliates or supplemental tax ▇▇▇▇ relating 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 Property (with a copy of each to Seller) a final reconciliation of Additional Rent due for calendar year 1996 on or before March 1, 1996. Purchaser shall use reasonable efforts (without any obligation to terminate leases or initiate lawsuits) to collect such Additional Rent from such tenants. On May 1, 1996, Purchaser shall provide Seller with a reconciliation of the amount of all Additional Rent collected from or refunded to tenants for calendar year 1996, and Purchaser and Seller shall reprorate such Additional Rent as of the Proration Date, within 10 days after Purchaser's delivery to Seller of such reconciliation. Notwithstanding anything to the contrary herein, the provisions of this Paragraph shall survive the Closing.
15.3 There shall be no credit to Seller for rent or other amounts delinquent as of the Closing Date. All 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 Close the Proration Date in an amount greater than the amount of Escrow, all current basic rent owed by said tenant to Purchaser for periods on or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient Closing Date shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than 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 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. 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 delinquency date shown on 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 refunded to tenants under such tenants' leases) 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 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. 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 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▇▇▇▇ Buyer and assumed by Purchaser: 2nd Amendment $ 45,018.75 3rd Amendment 177,186.00 Subtotal $222,204.75 Payment made by Seller shall deliver ($2,100.00) Purchaser's agreed share of Paxson improvement allowance ($80,136.00) Purchaser credit to the taxing authority their respective shares of such tax Seller for leasing commission paid for Paxson amendment ($3▇,▇▇▇▇.00) Outstanding EBP tenant improvement balance under August 2, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect 1994 Lease $ 34,224.00 ----------- Net closing credit to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.Purchaser $139,192.75 ===========
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Pension Investors I)
Prorations. 6.7.1. Real Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of Section10.4(b) below), security depositsexpenses under the Permitted Exceptions, expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property, expenses related to, and CAM expenses payment obligations included in, the Outparcel Obligations, and payment rights included in the Outparcel Rights (in each case, on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer 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”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. Rents, security deposits and CAM expenses The preliminary proration shall be approved paid at Closing by Buyer prior Purchaser to Close 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 Escrowthe Purchase Price at the Closing. Rents and other charges under If the Lease that actual amounts of the Proration Items are delinquent not known as of the Close Closing Time, the prorations will be made at Closing on the basis of Escrow the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be prorated, assigned to Purchaser. Final readings and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax final ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating for utilities will be made, if possible, as of the Closing Time, in which event no proration will be made at the Closing with respect to any period prior utility bills (except to Close the extent covered by the proration of EscrowOperating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. 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 Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrowbefore December 15, 2021 (herein, the recipient shall promptly deliver a copy “Final Proration Date”). The provisions of such tax ▇▇▇▇ to this Section 10.4 (excluding subsection (e) which is governed by Section 3.2 above) will survive the other partyClosing until the Final Proration Date has occurred, and not later than ten (10) days in the event any items subject to proration hereunder are discovered prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to Final Proration Date, the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement same shall be paid promptly prorated 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under parties in accordance with the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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' feesSection 10.4.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (HGR Liquidating Trust)
Prorations. 6.7.113.1. Real property taxes, assessments, Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security depositsdeposits (which will be assigned to and assumed by Purchaser and credited to Purchaser 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 date prior the Closing Date, and CAM expenses credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated through Escrow between Buyer 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 Close of Escrow. Rentsbusiness), security deposits and CAM expenses then Purchaser shall be approved 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 Buyer prior tenants and for which Seller has no obligation to Close pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of Escrowutility 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. Rents Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and other charges 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 amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to BuyerSeller's actual out-of-pocket costs of collection incurred existing real estate tax consulting agreements with respect to the collected amounts; 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, but only to the extent the performance of such services occurs prior to the Closing Date. Seller shall deliver to Purchaser all such real estate tax consulting contracts within thirty (ii30) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close days of Escrow that are past due on the date hereof. The fees or commissions payable to said consultants (if any) shall be treated as a portion of receipt; and (iv) the real estate tax liability to rents and other charges delinquent be pro-rated as of the Close Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of Escrow (and Buyer promptly will remit these amounts the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Seller). Buyer will use commercially reasonable efforts to collect Closing Date and Purchaser shall be responsible for any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action costs associated therewith arising from and after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to SellerClosing Date. Tax and assessment All prorations described in this Agreement shall be based deemed final as prorated on the latest available 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 recently ascertainable tax ▇▇▇▇information.
13.2. IfFor a period of ninety (90) days following the Closing Date, after Close all basic rent paid following the Closing Date by any tenant of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to the Properties who is indebted under a Lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrowall 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, or Seller receives any further or supplemental tax ▇▇▇▇ relating Purchaser shall pay such Post-Closing Receipt to any period Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after Close of Escrowthe Closing Date, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the 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. All leasing commissions owing and After the Closing, in no event shall Seller attempt to evict a tenant improvements with respect to the Property transactions entered into prior to execution through any manner. Paragraph 13.2 of this Agreement shall be paid 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 Seller shall indemnify advertisements, and hold Buyer harmless for Lease commission claims brought against telephone numbers, at each of the Property arising therefrom. All leasing commissions for new leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear Properties pursuant to the primary term of following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the new lease.
6.7.3. Seller agrees to indemnify Closing Date and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees shall expire on the day which is one hundred eighty (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring 180) days subsequent to the date of closing and which are in any way related when the public telephone directory pertaining to each Property is published subsequent to the PropertyClosing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all expenses related thereto, including, but not limited to, court costs existing telephone directory listings and attorneys' fees, provided, advertisements and signs can be replaced in due course and within the license period specified above. In the event that the foregoing indemnity 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 not 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 construed entitled to limit a pro-rata credit for such portion of the effect of, nor shall it be applicable cost of such listing and/or advertisement attributable to the subject matter ofperiod 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, any then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of Sellerthe Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's representations and warranties expressed temporary license set forth in this Agreement paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or in trade names beyond the closing documents delivered 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 Sellerfederal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 85)
Prorations. 6.7.14.8.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and All collected rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: income (iincluding pet deposits and advance rentals) to Buyer's actual out-of-pocket costs of collection incurred and all operating expenses with respect to the collected amounts; (ii) to rents due under the Lease Property for the month in which the payment is received 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 the close of business of the day immediately preceding the Closing Date. Rent collected by Buyer; Purchaser on or after the Closing Date, shall be applied first to any current rent due, with any additional amount applied then to pay any arrearages (iiiin 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 Closing, a statement indicating such tenant’s corresponding arrearages, if any, with respect to any unpaid rents attributable to the period prior to the Closing. All rent collected by the Seller prior to the Closing, for rental periods subsequent to the Closing (i.e., prepaid rent), shall be paid to Purchaser at Closing. If the amount of any period after the Close of Escrow that are past due item to be adjusted is not ascertainable on the date of receipt; and (iv) to rents and other charges delinquent as of Closing Date, the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed item shall be prorated by the Tenant to Seller. Tax Purchaser and assessment prorations shall be Seller based on the latest best available tax ▇▇▇▇information. If, Those items shall be reprorated as promptly after Close 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 Escrow, Buyer receives any further or supplemental eight (8) months after the Closing. Any payments due as a result of reproration shall be paid within ten (10) days of the reproration.
4.8.2. If the Closing occurs before the tax ▇▇▇▇ relating to any period for the year of closing is available, taxes shall be prorated using the taxes paid in the prior to Close of Escrow, or Seller receives any further or supplemental year. After the tax ▇▇▇▇ relating to any period after Close of Escrowis available, the recipient taxes shall promptly deliver a copy be reprorated at the request of such the Seller or Purchaser based on the tax ▇▇▇▇ to for the other party, and not later than year of closing. Any amounts due as a result of the reproration shall be paid within ten (10) days prior to of the delinquency date shown reproration. Special assessment liens, if any, that are a charge or lien on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution or that are due and payable at the time of this Agreement Closing 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 shall be responsible for all utility charges accrued prior to the Closing Date and Seller shall indemnify receive a refund of all utility deposits and hold Buyer harmless for Lease commission claims brought against the Property arising therefrominsurance premiums. All leasing commissions for new leases 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are If a change in any way related to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall utility service cannot be construed to limit effected on the effect ofClosing Date, nor shall it utility charges will be applicable to the subject matter of, any of Seller's representations estimated and warranties expressed prorated as provided in this Agreement or in the closing documents delivered by SellerSection 4.8.1.
Appears in 1 contract
Sources: Sale Agreement (America First Apartment Investors Inc)
Prorations. 6.7.1. Real (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, rents, security deposits, and CAM expenses ) shall be prorated through Escrow between 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 with respect to which 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 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 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 as 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 Close of Escrow. Rentssuch payments after Closing, security deposits and CAM expenses such sums shall be approved 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 prior to Close with the cooperation of EscrowSeller 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). Rents and other charges under For those Leases in which tenants pay a proportionate share of taxes (including the Lease that are delinquent as current payments of the Close of Escrow will not be proratedNicollet Mall Special Assessment), and rents and insurance charges or other amounts received by Buyer on expenses over a base year amount or after expense stop, the Close of Escrow in respect proration between the parties of the Lease will income received from tenants over such base year amount or expense stop shall be applied 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 following orderparties 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) the 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 ’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 out-of-pocket costs amount of collection 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 8.5(a). In addition to the foregoing, on or before the end of the ninety (90) day period described in this paragraph above, Buyer also shall prepare with the cooperation of Seller all other annual reconciliations required in connection with the Property including, without limitation, annual reconciliations under the Parking Lease, Rooftop Lease and REA, as required thereby, and the parties shall reprorate the amounts payable thereunder (a) with respect to the collected amounts; (ii) to rents due REA, in the same manner as the reproration of rent under the Leases, based on the 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 for Seller’s prorated share of all 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 month in which Hotel Owner’s share; the payment is received by Buyer; (iiiHotel Owner then reimburses Seller. In the event Buyer receives payment(s) to rents from the Hotel Owner after Closing attributable to 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 period after the Close of Escrow that are past due on cash security deposits held by Seller under Leases (plus any interest thereon accrued prior to the date of receipt; and (ivClosing, if required by law or contract) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, shall be credited against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten Purchase Price (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver be entitled to retain such cash security deposits). Seller shall receive credits at Closing for the taxing authority their respective shares amount of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements any utility or other deposits with respect to the Property transactions entered to the extent such deposits are assignable to Buyer and are so assigned or credited to Buyer at Closing. Buyer shall cause all utilities to be transferred into prior Buyer’s name and account at the time of Closing. As soon as reasonably practicable after Closing, Seller shall transfer to execution Buyer all non-cash security deposits and deliver to Buyer all necessary consents to such transfers. Between the date of this Agreement Closing and until such transfer takes place, Seller agrees to hold any such non-cash security deposit in trust for the benefit of Buyer. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date or in the case of rents or other charges that are paid in arrears or are otherwise not yet ascertainable or payable as of the Closing Date, 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 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 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. 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 Title 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; Buyer shall pay all other recording fees. Any closing escrow fees and other closing charges of the Title Company for the sale transactions shall be split equally between Seller and Buyer. 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 prorated between Seller and Buyer based solely on the respective number of days of ownership of the Property by SellerSeller 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 shall indemnify receive a credit at Closing for its prorata share thereof. Once the final amount of percentage rent is determined, the parties shall reprorate, and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases executed party owing the other shall promptly remit the amount owed no later than fifteen (15) days after the date reproration is determined.
(d) The provisions of this Section 8.5 shall survive the Closing.
(e) The obligations of Buyer under this Agreement shall be prorated between are subject to satisfaction or written waiver of Buyer and Seller as their respective periods of ownership bear to the primary term each of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind following conditions or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring 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 shall have received the date of closing and which are REA Estoppel; and
(5) The Lender under the First Mortgage Loan shall have approved, in any way related writing, to the Propertyextent consent is required, the 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 all expenses related thereto, including but Seller does not limited request an adjournment of the Closing to court costs and attorneys' fees.
6.7.4. Buyer agrees comply such adjournment not to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are in any way related to the Propertyexceed ten (10) days, and all expenses related theretoBuyer elects in writing to terminate this Agreement, includingthen the Deposit shall be promptly delivered to Buyer by Title Company and, but not limited toupon receipt thereof by Buyer, court costs and attorneys' feesneither party shall have any further claim against the other by reason of this Agreement, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Sellerexcept as otherwise specifically provided herein.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Prorations. 6.7.1The following prorations shall be made as of 12:01 a.m. on the day the Closing occurs on the basis of a 365- day year. At least two (2) business days prior to the Closing Date, Escrow Holder shall deliver to Seller and Buyer a 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 prorated on the basis that Buyer shall receive a credit for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing and for all security deposits held by Seller. Buyer shall not receive a credit for any Rent Seller has not received as of the Closing which is allocable to the period prior to the Closing. If Buyer shall collect any such Rent after the Closing, Buyer shall promptly pay the 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 property estate taxes and assessments shall be prorated as of the Closing on the basis of the most recent tax statement for the Property.
5.2.3 Any adjustments or prorations not 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 the Closing occurs (or other applicable period) for taxes, assessments, rentsmaintenance charges and operating expenses (collectively, security deposits"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 be prorated through Escrow 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 and Seller as of Close of Escrow. Rents, security deposits and CAM with a credit for any unpaid tenant improvement expenses shall be approved by Buyer prior to Close of Escrow. Rents that are the landlord's obligation under Leases (other than New Documents and other charges than the $38,200 tenant improvement expense under the Lease that are delinquent as with the University of the Close of Escrow will not be proratedPhoenix), and rents and a credit for any free rent granted to tenants under Leases other amounts received by Buyer on or after than New Documents (other than the Close one month of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect free rent granted to the collected amounts; (ii) to rents due under the Lease University of Phoenix for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the SellerMarch 2000). Seller represents to Buyer will use commercially reasonable efforts that Seller shall not dissolve or otherwise cease conducting business within one year after Closing and shall maintain sufficient assets to collect any delinquent rentsenable it to reasonably comply with its obligations under this paragraph and satisfy its other indemnification obligations under this Agreement.
5.2.5 For a period of twelve (12) months following the Closing Date, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant and Buyer's successors and assigns shall make available to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver make available to the taxing authority Buyer and Buyer's successors and assigns, and their respective shares of such tax ▇▇▇▇employees, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing agents and tenant improvements representatives, all books and records maintained with respect to the Property transactions entered into prior which relate to execution any of the items to be prorated or allocated under this Agreement in connection with the Closing, which books and records shall be paid by Seller, made available for inspection and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefromcopying upon reasonable notice during ordinary business hours. All leasing commissions for new leases executed after the date of this Agreement Any such inspection shall be prorated between Buyer at reasonable intervals and Seller as their respective periods of ownership bear to at the primary term of the new leaseinspecting party's sole cost and expense.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxesAll revenues, assessmentsincome, rentsreceivables, security depositscosts, 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 CAM expenses with respect to the items enumerated below where a particular manner of apportion- ment is provided, then apportionment of such item shall be prorated through Escrow between Buyer and Seller as of Close of Escrowmade in such manner. RentsThe obligation to make apportionments shall survive Closing. Without limitation, security deposits and CAM expenses the following items shall be approved so apportioned:
(i) Monthly rents and percentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as and when collected. If at Closing there are any past due rents or charges owed by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will occupancy tenants, they shall not be prorated, prorated until received; Purchaser shall include such delinquencies in its normal billing and rents and other shall pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Tenant Lease). To the extent Purchaser receives amounts received by Buyer on account of Tenant Leases on or after the Close of Escrow in respect of the Lease will Closing Date, such payments shall be applied first toward then current rent owed to Purchaser in connection with the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the applicable Tenant Lease for the month in which such payments are received, and any excess monies received shall be applied toward the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided 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 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 require to litigate or declare a default in 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.
(ii) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Seller and Purchaser if current tax rates differ from the latest previous tax rates as soon as the same are known. Seller agrees that Buyer has no 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 institute legal proceedings, including an action for unlawful detainer, against pay any installment due after the TenantClosing Date). In no event will shall Seller commence be charged with or maintain be responsible for any action increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or lease entered into on or after the Close Closing Date.
(iii) Transferable annual permits, licenses, and/or inspection fees, if any, on the basis of Escrow against the Tenant duration of the same;
(iv) Security Deposits, plus accrued interest, if any, payable thereon to collect tenants, and any sums purportedly owed by the Tenant to Seller. Tax other deposits and assessment prorations prepaid rent, shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further credited (or supplemental tax ▇▇▇▇ relating assigned) to any period prior to Close of Escrow, Purchaser;
(v) Utility charges levied against Seller or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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 Purchaser shall transfer all expenses related thereto, including but not limited such utility services to court costs its name and attorneys' feesaccount immediately upon Closing;
(vi) Service Contracts on the basis of the charge or premium for the period involved;
(vii) Tenant improvements and leasing commissions in accordance with Paragraphs 7(a) and 7(b).
6.7.4. Buyer agrees to indemnify (viii) All other operating expenses incurred in the management and hold Seller harmless operation of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are in any way related to the Property. No insurance policies shall be assigned hereunder, and all expenses related thereto, including, but not limited to, court costs and attorneys' fees, provided, that the foregoing indemnity accordingly there shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any no proration of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Sellerinsurance premiums.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses 5.4.1 The following shall be prorated through Escrow between Buyer Seller and Seller Purchaser as of Close 12:01 a.m. on the Closing Date (on the basis of Escrowthe 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. RentsIn 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 CAM expenses shall be approved by Buyer are not applied or forfeited prior to Close the Closing Date) to Purchaser on the Closing Date. As to any tenant security deposits held in the form of Escrowletters 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 and other charges under the Lease that which are delinquent as of the Close of Escrow will Closing Date shall not be prorated, 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 and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will Closing Date, such payments shall be applied in first toward the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) Closing occurs, second to the rents attributable 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 after 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 Close of Escrow that are past due on the date of receipt; and (iv) right to pursue any remedy against any tenant owing delinquent rents and any other charges delinquent as 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 Close six (6) month period following the Closing. Delivery of Escrow (the Assignment and Buyer promptly will remit these amounts to Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Seller)Closing. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations Purchaser shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ 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 period prior tenant of the Property is obligated to Close 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 Escrowsuch 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 “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 receives any further or supplemental tax 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 ▇▇▇▇ relating the appropriate amounts to any period after Close such tenants in accordance with the terms of Escrow, their leases and remit to Seller its prorata share of the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to amount collected from the other party, and not later than ten tenants within thirty (1030) days prior to of Purchaser’s collection of the delinquency date shown on same. If such tax ▇▇▇▇ Buyer and Seller 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 taxing authority 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 5.4.2(c) shall survive the Closing.
(d) All operating expenses customarily apportioned between sellers and purchasers of real estate properties similar to the Property and located in the same geographic area as the Property.
(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, fees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees.
(g) Utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to 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 respective 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 shall remain responsible for refunding to the tenants of the Property (including any former tenants of the Property), such tenants’ prorata shares of such the real estate tax ▇▇▇▇, prorated as refund received by Seller and arising out of Close of Escrowthe tax certiorari proceedings for calendar years 2003 through 2006. This provision shall survive the Closing.
6.7.2. All leasing commissions owing (a) Intentionally deleted.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that (i) with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one hundred eightieth (180th) day after the Closing Date and tenant improvements (ii) with respect to the Property transactions items required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one (1) year anniversary of the Closing Date. If the Closing shall occur before a real estate or personal property tax rate or assessment is fixed for the tax year in which the Closing occurs, the apportionment of taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing.
5.4.3 Items to be prorated at the Closing shall include a credit to Seller for costs and expenses incurred by Seller in connection with any new Leases or modifications to any existing Leases entered into after the date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of this Agreement, but only to the extent such costs and expenses are approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) or disclosed to Purchaser in writing or in the proposed lease at least three (3) Business Days prior to the date hereof. Seller shall be responsible for all brokerage and leasing commissions and tenant improvement costs for the initial term of all Leases entered into prior to execution the date of this Agreement and for any extension, renewal or expansion of any such Lease exercised prior to the date of this Agreement, provided in all such instances, the term of such Lease, extension, renewal or expansion and the regularly scheduled payment of rent commences prior to the date of this Agreement (collectively, “Seller Leasing Costs”). Purchaser shall be paid by Sellerresponsible 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 shall indemnify and hold Buyer harmless Leasing Costs for Lease commission claims brought against the Property arising therefrom. All leasing commissions for any new leases executed entered into from and 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilitiesextension, claims, demands, suits, and judgments, renewal or expansion of any kind existing Lease exercised or nature, including court costs entered into from and reasonable attorneys' fees (except those items which under after the terms date of this Agreement specifically become including, without limitation amounts owed under the obligation Brokerage Agreements, provided in all such instances, the term of Buyer)such Lease, brought by extension, or expansion or the Tenant or any other third parties regularly scheduled payment of rent commences from and based on events occurring on or before after the date of closing 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 which 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 way related such Lease extensions, renewals or expansions (collectively, “Purchaser Leasing Costs”). If at the Closing Seller has paid any Purchaser Leasing Costs, the prorations at the Closing shall include an appropriate credit to Seller. If at the Closing there remain unpaid Seller Leasing Costs, Purchaser shall expressly assume the responsibility to pay such unpaid Seller Leasing Costs, and the prorations at the Closing shall include an appropriate credit to Purchaser.
5.4.4 As provided in Section 11.1.2, Seller shall be responsible for paying all fees, costs or commissions owing to the Property, and all expenses related thereto, including but not limited Broker (as defined in Section 11.1.2) with regard to court costs and attorneys' feesthe transactions contemplated by this Agreement.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities5.4.5 At Closing, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to Purchaser shall be receive a credit against 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or Purchase Price in the closing documents delivered by Selleramount of $2,600,000.
5.4.6 The provisions of this Section 5.4 shall survive the Closing.
Appears in 1 contract
Sources: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Prorations. 6.7.1(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (except as hereinafter provided), collected Rentals (subject to the terms of paragraph (b) below) and operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Real property taxes, assessments, rents, security depositsSeller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and CAM expenses shall Purchaser will be prorated through Escrow between Buyer charged and Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as credited for all of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect Proration Items relating to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller)Closing Time. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment Such preliminary estimated Closing prorations shall be based set forth on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating a preliminary closing statement to any period prior be prepared by Seller and submitted to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient Purchaser for Purchaser’s approval (which approval shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten be unreasonably withheld) two (102) days prior to the delinquency date shown Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Time, the prorations will be made at Closing on such tax the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ Buyer for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before August 31, 2016 (herein, the “Final Proration Date”); provided that such reconciliation, as it relates to real estate taxes shall deliver be made within thirty (30) days following the issuance of the 2016 tax bills for the Real Property and the Improvements. The provisions of this Section 10.4 (excluding subsection (e) which is governed by Section 3.2 above), will survive the Closing until Final Proration Date, and in the event any items subject to proration hereunder are discovered prior to Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include such Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the taxing authority their respective shares extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to the landlord under the Tenant Lease or from other occupants or users of such tax the Property, 36 excluding specific tenant ▇▇▇▇, prorated as of Close of Escrow.
6.7.2▇▇▇▇ which are governed by Section 10.4(d). All leasing commissions owing and tenant improvements with respect Rentals are “Delinquent” if they were due prior to the Property transactions entered into prior to execution of this Agreement shall be paid by Seller, Closing Time and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring payment thereof has not been made on or before the date Closing Time. Delinquent Rentals will not be prorated and shall not include, but shall exclude, any amounts of closing Operating Expense Recoveries paid by Purchaser to Seller pursuant to Section 10.4(d). For a period of three (3) months after Closing, Purchaser agrees to include on any rental invoices provided by Purchaser to Tenants the amount of any Delinquent Rentals owed by such Tenants if known to or by Purchaser, 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 legal or other 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 including instituting legal actions, but in no event shall Seller be permitted to institute eviction proceedings against any Tenant or take any action against a Tenant which are would affect such Tenant’s right to occupy the premises demised under its Tenant Lease. With respect to any Delinquent Rentals received by Purchaser within six (6) months 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 specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, 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 way collection costs of Purchaser related to the Propertysuch Tenant, and all expenses related thereto, including but not limited then to court costs prior delinquencies owed by Tenant to Seller. Any sums collected by Purchaser and attorneys' fees.
6.7.4. Buyer agrees due Seller will be promptly remitted to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are in any way related to the PropertySeller, and all expenses related thereto, including, but not limited to, court costs any sums collected by Seller and attorneys' fees, provided, that the foregoing indemnity shall not due Purchaser will be construed promptly remitted to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by SellerPurchaser.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 6.7.1. Real property taxes(a) Rents, assessmentsincluding, without limitation, percentage rents, security depositsand all other income from the operation of the Property, if any, and CAM any additional charges and expenses payable by tenants under Leases, and assessments and charges payable to and collectable by the owner of the Property under the Property Declarations, all as and when actually collected; real property taxes (based on Title Company estimates, in the event that real property taxes for the year of Closing are not fully ascertained as of the Closing Date) and assessments (on a cash basis); water, sewer and utility charges; and amounts payable under any Service Contracts to be assumed by Buyer at Closing; and any other ordinary and recurring expenses of the operation and maintenance of the Property and with respect to which Seller shall receive a credit at Closing in the amount of the prepaid or unamortized portion thereof), shall all be prorated as of 12:01 a.m. on the date of Closing (i.e., Buyer is entitled to the income and responsible for the expenses of the entire day of Closing and all subsequent periods, and Seller is entitled to the income and responsible for expenses attributable to all periods prior to the day of Closing), on the basis of a 365-day year. Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions for which Buyer is responsible, as provided in Section 7.2. All rents and income collected after the Closing shall be prorated applied and paid as provided in this Section 8.5(a). Buyer shall have no obligation to Seller to collect any such unpaid rents or other charges (but agrees to invoice same to the applicable tenant as otherwise provided below), and all rents and other charges collected shall be first applied to current rents and charges due, next to rents and charges past due (in reverse order to which they become past due) for the period after the Closing Date through Escrow the then current rent period, and lastly to rents and charges past due for the period prior to the Closing Date. If a tenant shall specifically designate a payment as being attributable to, or if it is readily ascertainable that a payment received from a tenant is attributable to a specific period of time or for a specific purpose, including, without limitation, for operating expenses or real estate tax payments which were not paid or were underpaid by such tenant or for reimbursement for work performed by Seller on the tenant’s premises, such payment shall be so applied provided no other amounts payable for the period from and after Closing are past-due. If there is no such designation or if not so readily ascertainable, any payment received from a tenant after Closing shall be deemed a payment of rent due after the Closing until the tenant is current on rents and sums due under the applicable Lease on or after the Closing, 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. For a period of up to ninety (90) days after Closing, Buyer agrees to remit invoices prepared by Seller (in the name of Buyer) in order to ▇▇▇▇ items payable by tenant’s under Leases, but Buyer shall not be required to take any other action to collect such amounts due unless it chooses to take such action and Buyer may deduct the reasonable apportioned third-party costs of collection from any such amounts collected before remitting the balance due Seller. Seller retains the right to collect any such rents and other sums from tenants after Closing; provided, however, that Seller shall have no right to cause any such tenant to be evicted, to execute against the assets of such tenant required for operation in the Property, or to exercise any other landlord remedy against such tenant other than to ▇▇▇ for collection. To the extent Seller collects rents and charges for Leases after the Closing Date, Seller agrees to hold all collections in trust, and to promptly turn over such collections to Buyer, and Buyer shall apply such funds between Buyer and Seller as in the manner provided herein. Reconciliations of Close of Escrow. Rentstaxes, security deposits insurance charges and CAM other expenses owed by tenants under Leases for the calendar year (or fiscal year if different from the calendar year) in which the Closing occurs shall be approved prepared by Buyer prior with the cooperation of Seller within 180 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 or up to Close an expense cap, the proration between the parties of Escrowthe income received from tenants over such base year amount or expense stop or up to an expense cap shall be calculated by multiplying the total reimbursement payable by the applicable tenant (after taking into account the applicable base year, expense stop or expense cap) for such applicable billing period by a fraction the numerator of which is the total expenses incurred by the applicable party (i.e. Seller or Buyer, as applicable) with respect to its applicable period of ownership with respect to such applicable billing items (to which such base year, expense stop or expense cap apply, but without regard to the amount of any base year, expense stop or expense cap amounts), and the denominator of which is the total amount of such expenses for the Property incurred by both Seller and Buyer combined for the entire calendar (or, if applicable, fiscal) year within such billing period and billing items and otherwise in accordance with this Section 8.5(a) (and after taking into account any estimated payments of rent actually collected by Seller and Buyer respectively for their respective period of ownership). Rents By way of illustration but without limiting the foregoing, if: (i) the Closing occurs on June 1, 2016, (ii) during Seller’s period of ownership of the Property during the year 2016 (151 days), Seller incurred expenses of $450,000, (iii) during Buyer’s period of ownership of the Property during the year 2016 (214 days), Buyer incurred expenses of $500,000, (iv) total expenses for such year recovered from tenants under Leases is 33 $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 other charges 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 or expense cap on expense reimbursements, the proration between the parties of income received from tenants from reconciliations of expenses under the Lease that are delinquent Leases shall be calculated by multiplying the total reimbursable expenses for each tenant by a fraction the numerator of which is the total expenses incurred by the applicable party (i.e. Seller or Buyer, as applicable) with respect to its applicable period of the Close of Escrow will not be proratedownership with respect to such applicable billing items, and rents the denominator of which is the total amount of such expenses for the Property incurred by both Seller and other Buyer combined for the entire calendar (or, if applicable, fiscal) year within such billing period and billing items and otherwise in accordance with this Section 8.5(a) (and after taking into account any estimated payments of rent actually collected by Seller and Buyer respectively for their respective period of ownership). If any Lease is in effect for less than an entire year, then such proration and calculation of expense shall only be with respect to the applicable billing period under the applicable Lease. Notwithstanding the above, (i) any amounts received by Buyer of rent or additional rent due to or from tenants with respect to Leases terminated before the Date of Closing shall be the sole obligation/benefit of Seller, and (ii) any amounts of rent or additional rent due to or from tenants with respect to Leases for which rent first commences on or after the Close date of Escrow in respect Closing shall be the sole obligation/benefit of Buyer and shall not be subject to proration or adjustment under the above provisions. All adjustments set forth above shall be calculated on a tenant by tenant basis. In calculating prorations, no expenses shall be included within the numerator or denominator unless such expenses are reimbursable under the applicable Lease will be applied in the following order: (i) without giving effect to Buyer's actual out-of-pocket costs of collection incurred any lease provisions creating a base year, expense stop or expense cap with respect to the collected amounts; (ii) total amount of such expenses that are reimbursable to rents landlord. Notwithstanding anything herein to the contrary, except as provided in the second sentence of this paragraph, Seller shall be solely responsible, at Seller's sole cost and expense, for all tenant reimbursements, payments, credits and reconciliations due under the Lease tenants for the month period prior to Closing based on funds collected by Seller prior to Closing (and for all reconciliation periods prior to the current reconciliation period in which the payment Closing Date occurs, as applicable), whether such amounts are determined to be due as a result of an audit exercisable by a tenant under a Lease that is received by Buyer; (iii) to rents attributable to any period exercised after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence Closing or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement shall be paid by Sellerotherwise, and Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 agrees to indemnify defend and hold Buyer harmless from and against all costs, expenses, liabilities and credits that may be due or become due to tenants attributable to any such prior periods (and for all reconciliation periods which ended prior to the Closing Date). In the event any tenants are due reimbursements, payments, credits or reconciliations attributable to such prior periods prior to Closing and such credits are known to and not disputed at Closing by Seller, Buyer shall receive a credit at Closing against the Purchase Price in the amount of such outstanding reimbursements, payments, credits or reconciliations due tenants and Buyer shall be responsible for paying same due tenants to the extent, but only to the extent, of the credit given Buyer by Seller hereunder at Closing. This provision shall survive Closing without limitation as to time. The amount of any cash security deposits and pre-paid rents attributable to periods following the Closing, if any, held by Seller under Leases shall be credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits and such pre-paid rent). Seller will use commercially reasonable efforts (including payment of any reasonable issuer fees not otherwise payable by the applicable tenant) to cause any letters of credit held as security deposits to be transferred to, or reissued in, the name of Buyer at Closing. With respect to any such letters of credit held as security deposits that are not so transferred or reissued into the name of Buyer as of Closing, Seller shall continue to hold such letters of credit on behalf of Buyer and shall act as lawfully directed by Buyer following Closing with respect to any such letters of credit; provided, however, that Buyer shall defend, indemnify and hold harmless Seller from and against any and all liabilities, claims, demandslosses, suitsdamages, costs, expenses, obligations and judgmentsliabilities (including, of any kind or naturewithout limitation, including court costs and reasonable attorneys' ’ fees (except those items which under and disbursements) incurred by Seller arising out of any action taken by Seller with respect to any such letter of credit in accordance with instructions as Buyer may direct. Seller shall receive credits at Closing for the terms amount of this Agreement specifically become the obligation of Buyer), brought by the Tenant any utility or any other third parties and based on events occurring on or before the date of closing and which are in any way related deposits with respect to the Property, Property to the extent such accounts are transferred to Buyer and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4Buyer receives the benefit of same. Buyer agrees and Seller shall cooperate to indemnify cause all utilities to be transferred into Buyer’s name and hold account, or, at the option of either party, to cause Seller’s existing accounts to be closed and to cause a new account to be opened in Buyer’s name, at the time of or immediately upon Closing in which event Seller harmless of and from shall be entitled to any and all liabilities, claims, demands, suits and judgments, refunds of any kind such utility or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or other deposits. Notwithstanding any other third parties and based on events occurring subsequent provision above to the date of closing and which are in any way related to the Propertycontrary, and all expenses related thereto, utility charges (including, but not limited to, court costs water rates and attorneys' feessewer charges or rentals), provided, that the foregoing indemnity if metered shall not be construed apportioned at Closing, but Seller shall cause all utility meters to limit be read not more than two (2) days before Closing Date, and Seller agrees to pay promptly after receipt all utility bills and charges accruing up to and including the effect of, nor shall it be applicable day preceding the Closing Date and Buyer agrees to the subject matter of, pay all charges from and after Closing. Seller and Buyer hereby agree that if any of Seller's representations the aforesaid prorations and warranties expressed in this Agreement credits are based on estimates, or cannot be calculated accurately on the Closing Date, or in the case of rents or other charges received from tenants or other assessments due to or payable by the owner of the Property under the Property Declarations, such amount have not been collected, then the same shall be calculated as soon as reasonably practicable after the Closing Date, or the date actual amounts or known, or the date such amounts have been collected, as applicable, 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) days after written demand by the other party (or any other amount due by one party to the other for the period after Closing under this Agreement not paid within thirty (30) days after demand by the party to who payment is owed) 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 or third parties under the Property Declarations (but subject to proration hereunder) prior to or 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.
(b) All title charges (including survey coverage and other endorsements and reinsurance charges to the Title Policy and the lender’s title policy, but excluding the basic premium for the Title Policy), survey costs and recording fees shall be paid by Buyer at Closing. Seller shall be responsible for the basic premium for the Title Policy. Any escrow or closing documents delivered by fees shall be split equally between Seller and Buyer. The parties will execute and deliver any required transfer or other similar tax declarations to the appropriate governmental entity at Closing.
(c) Any percentage rent received in the year in which Closing occurs shall be prorated based upon the number of days of Seller’s and Buyer’s respective ownership of the Property, regardless of whether such sales occur during the portion of the lease year allocable to Seller’s and Buyer’s respective ownership of the Property.
(d) The provisions of this Section 8.5 shall survive the Closing.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses 5.4.1 The following shall be prorated through Escrow between Buyer Seller and Seller Purchaser as of Close 12:01 a.m. on the Closing Date (on the basis of Escrowthe actual number of days elapsed over the applicable period):
(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. RentsIn 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 CAM expenses shall be approved by Buyer are not applied or forfeited prior to Close the Closing Date in accordance with the terms of Escrowthe respective Leases) to 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 and other charges under the Lease that which are delinquent as of the Close of Escrow will Closing Date shall not be prorated, 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 and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will Closing Date, such payments shall be applied in first toward the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; Closing occurs (iii) and prorated between Purchaser and Seller accordingly), second, to the rents attributable 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 after of time prior to the Close 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 Escrow that are past due on 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 date of receipt; and (iv) right to pursue any remedy against any tenant owing delinquent rents and any other charges 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 Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rentsClosing Date, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrowretain all rights relating thereto.
6.7.2. (c) All leasing commissions owing income and tenant improvements with respect operating expenses customarily apportioned between sellers and purchasers of real estate properties similar to the Property transactions entered into prior and located in the same geographic area as the Property.
(d) Charges and payments under Assumed Contracts or permitted renewals or replacements thereof assigned 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 executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear Purchaser pursuant to the primary term Assignment and Assumption of the new leaseContracts.
6.7.3. (e) Any fees or licenses prepaid by Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilitiesfor which Purchaser will receive credit or benefit following Closing, claimsincluding, demandswithout limitation, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and for licenses which are in any way related transferred to Purchaser at the Property, Closing and all expenses related thereto, including but not limited to court costs annual permit and attorneys' inspection fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are in any way related to the Property, and all expenses related thereto(f) Utilities, including, but not limited towithout limitation, court costs telephone, steam, electricity and attorneys' feesgas, providedon the basis of the most recently issued bills therefor, that subject to adjustment after the foregoing indemnity Closing when the next bills are available, or if current meter readings are available, on the basis of such readings.
(g) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assigned to Purchaser at the Closing, which shall not be construed credited in their entirety to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
(h) Intentionally Deleted.
(i) Intentionally Deleted.
(j) Intentionally Deleted.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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 Escrow12.1. Rents and other charges under the Lease that are delinquent as (exclusive of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation but including prepaid rents); refundable security deposits (which will be assigned to institute legal proceedingsand assumed by Purchaser and credited to 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 Closing Date, including an action for unlawful detainer, and credited against the Tenantbalance of the cash due at Closing. In no event will Seller commence or maintain any action after Assessments payable in installments which are due subsequent to the Close Closing Date shall be paid by Purchaser and Assessments payable in installments which are attributable to the period of Escrow against the Tenant time prior to collect any sums purportedly owed Closing shall be paid by the Tenant to Seller. Tax and assessment prorations If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be based on the latest available tax ▇▇▇▇basis of the most recent ascertainable data. If, after Close All prorations will be 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 Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to the Property who is indebted under a lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient all current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller, subject to proration for the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller month of Closing. 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 taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the 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. All leasing commissions owing and tenant improvements with respect to Seller will pay the Property transactions entered into prior to execution cost of performing Seller's audit. Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leasedeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses The following adjustments to the Purchase Price shall be prorated through Escrow between Buyer and Seller made at the Closing by proration of the amounts as specified below as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as 11:59 p.m. of the Close of Escrow will not date preceeding the closing:
(a) Ad valorem real estate and personal property taxes applicable to the Properties for 1996, such apportionment to be prorated, and rents and other amounts received by Buyer made on or after the Close of Escrow in respect basis of the Lease will be applied in previous year's taxes unless the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment bill therefor is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax avail▇▇▇▇. IfOnce the taxes for 1996 are established, 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 Escrowupon written demand by either party, the recipient parties shall promptly deliver recompute such proration in accordance with the current tax figures, and any excess payment or credit received by a copy of such tax ▇▇▇▇ party shall promptly be reimbursed by it to the other party. Buyer shall have the right to contest the 1996 taxes and Seller shall provide Buyer with any information in Seller's possession to assist such contest. The provisions for readjustment of taxes are intended to and shall survive the Closing of this transaction.
(b) 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 not later than ten (10) days other like contracts affecting the Subject Property. The amount of charges paid by Seller prior to the delinquency date shown on such tax ▇▇▇▇ Buyer Closing and Seller attributable to a period after the Closing shall deliver be credited to Seller. The amount of receipts received prior to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of EscrowClosing and attributable to a period after the Closing shall be credited to Buyer.
6.7.2. (d) All leasing commissions owing and tenant improvements other proratable items with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are in any way related to the Subject Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity 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 construed applied first to limit 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 effect ofClosing, nor shall it including real estate taxes for the year 1996, will be applicable adjusted, and payment therefor will be made by Seller to Buyer or by Buyer to Seller, as appropriate, as soon as figures are available after the subject matter ofClosing and, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Sellercase of revenues, if any, when they are collected.
Appears in 1 contract
Prorations. 6.7.1Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “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 (except as hereinafter provided), amounts payable or paid under any Service Contracts assumed by Purchaser, collected Rentals (subject to the terms of Section 10.4(b) below) accrued interest under the Mortgage Loan and operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Real property taxes, assessments, rents, security depositsSeller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and CAM expenses Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer 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”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. Rents, security deposits and CAM expenses The preliminary proration shall be approved paid at Closing by Buyer prior Purchaser to Close 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 Escrowthe Purchase Price at the Closing. Rents and other charges under If the Lease that actual amounts of the Proration Items are delinquent not known as of the Close Closing Time, the prorations will be made at Closing on the basis of Escrow the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be prorated, assigned to Purchaser. Final readings and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax final ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating for utilities will be made if possible as of the Closing Time, in which event (that is, as to any period prior to Close of Escrowutility account, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver if such a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated final billing as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements the Closing Time is then available) no proration will be made at the Closing with respect to utility bills (except to the Property transactions entered into prior extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to execution all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers (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 Agreement Section 10.4 (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 any payment owing under this sentence to be made), and in the event any items subject to proration hereunder are discovered on or before the Final Reconciliation Date to be in error so as to result in a monetary adjustment of greater than $500, the same shall be paid promptly prorated 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under parties in accordance with the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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' feesSection 10.4.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses shall be 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 Escrow12.1. Rents and other charges under the Lease that are delinquent as (exclusive of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation but including prepaid rents); refundable security deposits (which will be assigned to institute legal proceedingsand assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6%; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, including an action if any, for unlawful detainersuch items) and taking into account the full discount available for payment of real estate taxes which remain unpaid; 100% of operating expenses which are reimbursable by Eckards, Publix, Beall's Outlet, Fashion Bug, Cli▇▇'▇ ▇▇lliards, Kimsworth Inc. and Ross Dress for Less and 75% of t▇▇ ▇perating expenses which are reimbursable by the balance of the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited against the Tenantbalance of the cash due at Closing. In no event will Seller commence or maintain any action after Assessments payable in installments which are due subsequent to the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations Closing Date shall be based 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 latest available tax ▇▇▇▇basis of the most recent ascertainable data. If, after Close All prorations will be 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 Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to the Property who is indebted under a lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient all current basis rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax ▇▇▇▇ to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior 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 delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the 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 additional Post-Closing Receipts equal an amount greater than $5,000, the cost of performing Seller's audit. All leasing commissions Seller retains the right to bring suit for collection of delinquent rent against any tenant owing and tenant improvements with respect more than $5,000 of delinquent rent to the Property transactions entered into prior to execution Seller. Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against recording of the Property arising therefromdeed.
12.3. All leasing commissions for new Percentage rent payable under the leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear the Closing Date as follows:
12.3.1. Any percentage rent attributable to a specified period ("Percentage Rent Period") ending prior to the primary term of Closing Date shall be promptly paid over to the new leaseSeller if and when collected. Seller shall be entitled to all percentage rent attributable to the period prior to Closing Date for any Percentage Rent Period ending prior to Closing Date.
6.7.312.3.2. Seller agrees Percentage rent payable with respect to indemnify and hold Buyer harmless a Percentage Rent Period a portion of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are in any way related occurs prior to the Property, Closing Date and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless a portion of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring which occurs subsequent to the date Closing Date shall be apportioned between Purchaser and Seller on the basis of closing and their respective period of ownership during the applicable Percentage Rent Period. Seller shall be entitled to percentage rent determined by multiplying the total percentage rent for such Percentage Rent Period by a fraction, the numerator of which are shall be the total number of days in any way related such Percentage Rent Period prior to the Property, Closing Date and all expenses related thereto, including, but not limited to, court costs and attorneys' fees, provided, that the foregoing indemnity denominator of which shall not be construed to limit the effect of, nor total number of days in the Percentage Rent Period. Purchaser shall it be applicable entitled to the subject matter ofremainder of such percentage rent. The amount of such percentage rent allocated to Seller shall be adjusted by the parties and paid by Purchaser or Seller to the other, any as appropriate, on the Closing Date based upon the most recently ascertainable financial data for calendar year 1996 and for calendar year 1997 (with percentage rent for calendar year 1997 being based on 75% of Seller's representations and warranties expressed the percentage rent payable in this Agreement or calendar year 1996 with no other reproration). Seller shall have similar audit rights as contained in the closing documents delivered by SellerParagraph 12.2 above.
Appears in 1 contract
Prorations. 6.7.112.1. Real property taxes, assessments, Rents (exclusive of delinquent rents, security depositsbut including prepaid rents); prepaid associations dues, if any; water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes and installments of special assessments which are due in the year in which the Closing Date occurs; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses credited against the balance of the cash due at Closing. Assessments payable in installments which are due in years subsequent to the year in which the Closing Date occurs shall be paid by Purchaser. If the amount of any of the items to be prorated through Escrow between Buyer and Seller is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. All prorations will be final except as of Close of Escrowto delinquent rent referred to in Paragraph 12.2 below. Rents, Refundable security deposits will be assigned to and CAM expenses assumed by Purchaser and credited to Purchaser at Closing.
12.2. All 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 approved deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) business days following each receipt by Buyer prior Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Close of EscrowSeller. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be proratedPurchaser shall use commercially reasonable efforts to collect all amounts which, and rents and other amounts received by Buyer on or after the Close of Escrow upon collection, would constitute Post-Closing Receipts hereunder (but in respect of the Lease no event will be applied obligated to retain legal counsel or the services of an outside collection agency or to initiate legal proceedings in the following order: (ifurtherance thereof) to Buyer's actual and may deduct from such Post-Closing Receipts so collected its reasonable out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period so collecting such Post-Closing Receipts. Within 120 days after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rentsClosing Date, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller and the confirmation thereof by Purchaser, Purchaser shall pay to Seller said additional Post-Closing Receipts. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leaseDeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Pension Investors I)
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (collectively, the “Proration Items”):
(i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received Utility charges payable by Buyer; (iii) to rents attributable to any period after the Close of Escrow that Seller, if any, including, without limitation, electricity, water charges and sewer charges. If there are past due meters on the date Real Property, Seller will cause readings of receipt; and all said meters to be performed not more than five (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (105) days prior to the delinquency Closing Date, and a per diem adjustment shall be made for the days between the meter reading date shown and the Closing Date based on such the most recent meter reading.
(ii) License fees and any other amounts payable under the AT&T Wireless License, if any.
(iii) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation.
(iv) Any unconfirmed assessments will be satisfied in full by Seller at Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The 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 ▇▇▇▇▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated for utilities will be made if possible as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements 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 Property transactions entered into prior utility providers, and Purchaser will be obligated to execution make its own arrangements for any deposits with the utility providers. The provisions of this Agreement shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless Section 10.4(a) will survive the Closing for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 leasetwelve (12) months.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Prorations. 6.7.13.6.1. Real property taxes, assessments, rents, security deposits, All items of income and CAM expenses shall be 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. Rents and other charges under expense arising from the Lease that are delinquent as operation of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred Stations with respect to the collected amounts; (ii) to rents due under Purchased Assets and the Lease Assumed Leases on or before the close of business on the Closing Date shall be for the month 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 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 year in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due Closing Date falls shall each be prorated as between Seller and Purchaser on the date basis of receipt; the number of days of the Tax year elapsed to and (iv) including the Closing Date.
3.6.3. The FCC annual regulatory fees for the fiscal year October 1, 2004 through September 20, 2005 for the Stations which are payable in August, 2005 shall be assumed to rents be the same as the annual regulatory fees paid in August, 2004 and other charges delinquent shall be prorated at Closing as of the Close Closing Date.
3.6.4. Prepaid items, deposits, credits and accruals such as water, electricity, telephone, other utility and service charges, lease expenses, license fees (if any) and payments under any contracts or utility services to be assumed by Purchaser shall be prorated between Seller and Purchaser on the basis of Escrow (the period of time to which such liabilities, prepaid items and Buyer promptly will remit these amounts to the Seller)accruals apply.
3.6.5. Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment All prorations shall be based made and paid insofar as feasible on the latest available tax ▇▇▇▇Closing Date and shall be made in accordance with generally accepted accounting principles; any prorations not made on such date shall be made as soon as practicable (not to exceed ninety (90) days) thereafter. IfAs soon as practical within said ninety (90) day period, Purchaser shall deliver to Seller Purchaser's certificate setting forth as of the Closing Date all adjustments to be made 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 Close delivery. Seller and Purchaser shall attempt jointly to reach agreement as to the amount of Escrowthe adjustments to be made hereunder within sixty (60) days after receipt by Purchaser of such written objection by Seller, Buyer receives any further which agreement, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or supplemental tax ▇▇▇▇ relating review. In the event of a disagreement between Purchaser and Seller with respect to any period prior the accounting to Close be made hereunder, the parties agree that a public accounting firm chosen jointly by Purchaser and Seller shall be the final arbiter of Escrow, such disagreement. The cost of such accounting firm shall be shared equally by the parties. Any amounts due Purchaser or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, for the recipient adjustments provided for herein shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than be paid within ten (10) calendar days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrowafter final determination.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spanish Broadcasting System Inc)
Prorations. 6.7.113.1. Real property taxes, assessments, Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security depositsdeposits (which will be assigned to and assumed by Purchaser and credited to Purchaser 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 Closing Date, and CAM expenses credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated through Escrow between Buyer 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 Close of Escrow. Rentsbusiness), security deposits and CAM expenses then Purchaser shall be approved 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 Buyer prior tenants and for which Seller has no obligation to Close pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of Escrowutility 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. Rents Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and other charges which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to BuyerSeller's actual out-of-pocket costs of collection incurred existing real estate tax consulting agreements with respect to the collected amounts; 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 (ii15) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close days of Escrow that are past due on the date hereof. The fees or commissions payable to said consultants (if any) shall be treated as a portion of receipt; and (iv) the real estate tax liability to rents and other charges delinquent be pro-rated as of the Close Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of Escrow (and Buyer promptly will remit these amounts the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Seller). Buyer will use commercially reasonable efforts to collect Closing Date and Purchaser shall be responsible for any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action costs associated therewith arising from and after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to SellerClosing Date. Tax and assessment All prorations described in this Agreement shall be based deemed final as prorated on the latest available tax ▇▇▇▇Closing Date, except as to delinquent rent referred to in Paragraph 13.2 below.
13.2. IfFor a period of ninety (90) days following the Closing Date, after Close all basic rent paid following the Closing Date by any tenant of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to the Properties who is indebted under a Lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrowall 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, or Seller receives any further or supplemental tax ▇▇▇▇ relating Purchaser shall pay such Post-Closing Receipt to any period Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after Close of Escrowthe Closing Date, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as 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 Close Purchaser's books and records to verify the accuracy of Escrow.
6.7.2the 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. All leasing commissions owing and After the Closing, in no event shall Seller attempt to evict a tenant improvements with respect to the Property transactions entered into prior to execution through any manner. Paragraph 13.2 of this Agreement shall be paid 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 Seller shall indemnify advertisements, and hold Buyer harmless for Lease commission claims brought against telephone numbers, at each of the Property arising therefrom. All leasing commissions for new leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear Properties pursuant to the primary term of following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the new lease.
6.7.3. Seller agrees to indemnify Closing Date and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees shall expire on the day which is one hundred eighty (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring 180) days subsequent to the date of closing and which are in any way related when the public telephone directory pertaining to each Property is published subsequent to the PropertyClosing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all expenses related thereto, including, but not limited to, court costs existing telephone directory listings and attorneys' fees, provided, advertisements and signs can be replaced in due course and within the license period specified above. In the event that the foregoing indemnity 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 not 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 construed entitled to limit a pro-rata credit for such portion of the effect of, nor shall it be applicable cost of such listing and/or advertisement attributable to the subject matter ofperiod 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, any then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of Sellerthe Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's representations and warranties expressed temporary license set forth in this Agreement paragraph shall expire on the date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or in trade names beyond the closing documents delivered 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 Sellerfederal law or the laws of the state where such Property is located to prevent such unauthorized use or to recover any damages authorized by such laws.
Appears in 1 contract
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 85)
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses The following shall be prorated through Escrow between Buyer Seller and Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent Purchaser as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: Cut-Off Time:
(i) All real estate taxes, water or sewer charges and general or special assessments on the Real Property, or any other governmental tax or charge levied or assessed against the Property. If the Closing shall occur before the actual amounts payable are known, then apportionment shall be based on the most recently ascertainable tax rates and assessed value of the Property. Seller shall be responsible for all such taxes that are allocable to Buyer's actual out-of-pocket costs of collection incurred any period prior to the Closing Date and Purchaser shall be responsible for all such taxes allocable to any period from and after the Closing Date. 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 collected amounts; 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 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) to rents due under the Lease All rent for the month in which the payment is received 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 Buyer; Purchaser to Seller if collected by Purchaser after the Closing.
(iii) With respect to rents attributable 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 period after Property Contract (including, without limitation, prepaid bonuses or decorating allowances paid to Seller with respect to laundry or other similar ancillary agreements) over the Close term of Escrow that are past due on the date of receipt; and Property Contract.
(iv) Seller shall perform, or cause to rents be performed, an accounting of cash on hand at the Property (i.e., in-house banks and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇▇ 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 prior to Closing by Seller in respect of Bookings relating to a period after the Closing shall be credited to Seller at Closing. IfAll 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, after Close 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 Escrowsuch employees, Buyer 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 further or supplemental tax ▇▇▇▇ relating (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 Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating the Closing Date and Purchaser shall be responsible for all such Condominium Charges allocable to any period from and after Close of Escrow, the recipient shall promptly deliver a copy of Closing Date. If any such tax ▇▇▇▇ Condominium Charges relating to the other party, and not later than ten (10) days period prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Closing are paid in installments, then Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring pay on or before the date of closing and which Closing Date any remaining installments with respect to such Condominium Charges that are in allocable to any way related period prior to the PropertyClosing Date and same shall be adjusted between Seller and Purchaser as of the Cut-Off Time. 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 applicable, make 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, Purchaser shall receive a credit in an amount equal to the FF&E Balance on the date hereof. Notwithstanding the foregoing, 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 all expenses related theretoof the books and records of Seller, including but not limited as may be necessary to court costs make the adjustments and attorneys' fees.
6.7.4prorations required under this Agreement. Buyer agrees Prior to indemnify Closing, representatives of Purchaser and hold Seller harmless of shall jointly prepare a statement (the “Preliminary Closing Statement”) based upon such preliminary inventories, audits and from any and all liabilities, claims, demands, suits and judgments, of any kind examinations which will show the net amount due to Seller or nature, including court costs and reasonable attorneys' fees, brought by Purchaser as the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are in any way related to the Propertyresult thereof, and all expenses related thereto, including, but not limited that net amount will be added to, court costs or deducted from, the Purchase Price. Within ninety (90) days following the Closing, representatives of Purchaser and attorneys' feesSeller shall prepare a revised statement (the “Final Closing Statement”, providedand together with the Preliminary Closing Statement, that collectively, the foregoing indemnity “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 construed to limit deemed merged into any instrument of conveyance delivered at the effect ofClosing. Purchaser and Seller acknowledge and agree that, nor shall it be applicable to except as otherwise expressly provided herein, the subject matter of, any purpose and intent of Seller's representations the provisions set forth in this Section 8.4 and warranties expressed 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 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 closing documents delivered foregoing provisions. Purchaser and Seller further acknowledge and agree that the apportionments as to the Hotel-Related Units in this Section 8.4(b) shall be prepared, to the extent applicable, in accordance with the current edition of the Uniform System of Accounts for Hotels of the Hotel Association of New York City, Inc., as adopted by Sellerthe American Hotel Association of the United States and Canada.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Hotels & Resorts, Inc)
Prorations. 6.7.1Prior to the Closing, Seller shall determine the amounts of the prorations in accordance with this Agreement and notify Purchaser thereof. Real property taxesPurchaser shall review and approve such determination promptly and prior to the Closing, assessmentssuch approval not to be unreasonably withheld or delayed. The prorations shall be calculated as of 11:59 p.m. on the day immediately preceding the Closing Date. Thereafter, rents, security deposits, Purchaser and CAM expenses Seller shall each inform Title Company of such amounts. The following items shall be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not Closing Date and shall be prorateddeducted from or added to the Purchase Price, and rents and other amounts received by Buyer as appropriate, payable at the Closing:
(a) Non-delinquent general real estate taxes for the Property shall be prorated based on or after the Close of Escrow in respect 110% of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available most recent tax ▇▇▇▇(s) for the Property. IfAs the Purchaser is a municipal corporation, after Close the property will be tax exempt post-Closing. Seller and Purchaser agree to cooperate on obtaining said exemption. Seller reserves the right to appeal the taxes for the year of EscrowClosing and prior years and obtain any reductions, Buyer receives any further certificates of error, objections or supplemental tax ▇▇▇▇ relating other refunds. Seller and Purchaser agree to any re-prorate the taxes for the year of Closing.
(b) All operating expenses of the Property which pertain to a period both prior to Close of Escrowand after the Closing Date, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrowincluding, without limitation, utility charges (including, without limitation, water and sewer charges) based on the recipient shall promptly deliver a copy of such tax ▇▇▇▇ last ascertainable bills (if current bills are not available) if and to the other party, extent that final meter readings cannot be made and not later than ten (10) days separate bills issued to Seller and Purchaser by the utility suppliers prior to the delinquency date shown on Closing Date; provided, however, that Seller and Purchaser hereby agree to cooperate to seek to have such tax ▇▇▇▇ Buyer final meter readings made prior to Closing and Seller shall deliver the account party changed to the taxing authority their respective shares of such tax ▇▇▇▇, prorated Purchaser effective as of Close of Escrowthe Closing Date.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Real Estate Sale Contract
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents, All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are Any delinquent as of rents attributable to periods prior to the Close of Escrow will not be prorated, and rents and other amounts received which are collected by Buyer on or after 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 Close of Escrow in respect right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received Tenant by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and unlawful detainer or other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Sellermeans. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, If after Close of Escrow, Buyer Escrow either party receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow. All prorations shall be based on a 360- day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property transactions entered into prior to execution of this the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for Lease lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new leases Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear bears to the primary term of the new leaseLease subject, in all events, to the 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 of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date Close of closing Escrow 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' attorneys fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date Close of closing Escrow 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, assessments, rents, security deposits, and CAM expenses (a) The following shall all be prorated through Escrow between Buyer and Seller as of Close 12:01 a.m. on the date of Escrow. RentsClosing, security deposits and CAM expenses shall be approved by Buyer prior to Close on the basis of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following ordera 365-day year: (i) to Buyer's actual out-of-pocket costs of rents, and all other income from the Property, if any, including, without limitation, any additional charges and expenses payable under the Leases, if any, all as and when actually collected (whether such collection incurred with respect to occurs prior to, on, or after the collected amountsClosing Date); (ii) to rents due real property taxes and assessments for the year in which the Closing occurs, (iii) water, sewer and utility charges, (iv) amounts payable under the Lease any service contracts Buyer assumes at Closing for the month in which the payment is received by Buyer; Closing occurs and prior months, (iiiv) annual permits (to rents attributable the extent same are assigned to any period after the Close of Escrow that are past due Buyer at Closing) and/or inspection fees (calculated on the date basis of receipt; the period covered), and (ivvi) any other expenses relating to rents the operation and other charges delinquent as maintenance of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller)Property. Buyer will use commercially reasonable efforts to collect any delinquent rentsshall include all rent arrearages, provided that Buyer has no obligation to institute legal proceedingsif any, including an action for unlawful detainer, against the Tenant. In no event will Seller commence on Buyer's monthly invoices or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to tenants and promptly deliver to Seller any such rent arrearages that relate to periods prior to the Closing if and when collected by Buyer; provided, however, that rents received from delinquent tenants after the Closing Date that are designated for periods after Closing shall be applied first against tenant's current rent due and then against any delinquent rents. The amount of any security or other deposits required to be returned to tenant's under the Leases by Seller, if any, shall be credited against the cash portion of the Purchase Price; accordingly, Seller shall retain the deposits and Buyer shall be responsible for handling such deposits in accordance with the Leases and applicable law. Seller shall retain all utility deposits, if any. Seller and Buyer hereby agree that if any of the aforesaid prorations cannot be calculated accurately on the Closing Date, then the same shall be calculated 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 either party owing the other party, and not later than party a sum of money based on such subsequent proration(s) shall pay said sum to the other party within ten (10) days after such calculation is made; provided, however, that the tax proration referenced in Section (ii) herein shall be final as of the date of Closing. Seller shall be responsible for payment in full of all real estate taxes and assessments for years prior to the delinquency date shown on such tax Closing.
(b) Seller shall pay the premium for the Title Policy except for that portion to delete the so-called "survey exception." Buyer shall pay all expenses associated with the performance of Buyer's due diligence pursuant to Section 2.1 above. Escrow fees and recording charges and any other expenses of the escrow for the sale shall be split equally between Buyer and Seller. Buyer shall pay the costs of the execution and filing of the Deed. All costs and charges described in this paragraph shall be paid at Closing. Any bills received after the Closing and not previously prorated in escrow shall be divided as provided herein, and shall be paid promptly upon receipt of a ▇▇▇▇ Buyer therefor, and Seller shall deliver any and all other costs and expenses relating to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing purchase and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement sale transaction contemplated hereby 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 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 leaseparty incurring same.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Homes for America Holdings Inc)
Prorations. 6.7.112.1. Real Rents (exclusive 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, such as trash removal, heating, ventilation and air conditioning service and maintenance contracts; real and personal property taxes, assessments, rents, security deposits; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses credited or debited 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 amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data, other than real estate taxes, which shall be prorated through Escrow between Buyer and Seller on the basis of 105% of the aggregate 1995 real estate taxes. Additionally, Purchaser shall receive a credit of $35,000.00 as of Close of Escrow"rent concessions" at Closing. RentsAll prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. If, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be proratedClosing Date, and rents and other amounts received by Buyer on or after the Close of Escrow any rent is in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease arrears for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close the calendar month when the Closing occurs, then the first rent collected by Purchaser shall be applied to current rents and then towards subsequent delinquent rent. If on the Closing Date rent is in arrears only for the calendar month when the Closing occurs, then the first rent collected by Purchaser shall be apportioned between Seller and Purchaser. Any amounts due to Seller shall be paid by Purchaser to Seller within 10 days of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy receipt of such tax ▇▇▇▇ amounts. Any amounts collected by Purchaser pursuant to this Paragraph are hereinafter collectively referred to as the other party"Post Closing Receipts". Within 120 days after the Closing Date, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax ▇▇▇▇the Post-Closing Receipts reconciliation, prorated as of Close of Escrow.
6.7.2Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leasedeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Prorations. 6.7.1. Real property (a) As applicable, general real estate taxes, assessments, rentshomeowner's association dues, security depositscondominium association dues, condominium fees, utility payments and CAM expenses other items that are customarily prorated shall be 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. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under Properties at the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the TenantClosing. In no the event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten that final bills (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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 real estate tax bills) are not available or cannot be issued prior to Closing for any item being prorated then Purchaser and attorneys' feesSeller agree to allocate such items on a fair and equitable basis as soon as such bills are available, final adjustment to be made as soon as reasonably possible after the Closing, but in no event later than three hundred sixty-five (365) days after Closing. Payments in connection with final adjustment shall be due within thirty (30) days of written notice.
6.7.4. Buyer agrees (b) All prorations are final unless otherwise indicated in this Agreement.
(c) If the amount of the current real estate taxes and assessments for the Properties is not ascertainable at the time of closing, said taxes and assessments shall be prorated on the basis of the most recent ascertainable real estate taxes and assessments, and the parties shall reprorate the taxes and assessments when the actual bills therefor shall be issued; provided, however, that if any Property is not assessed as a separate parcel for tax purposes, then (a) taxes and assessments attributable to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and Property shall be based on events occurring subsequent upon an amount equal to the date most recent ascertainable taxes and assessments for the tax parcel of closing which such Property is a part multiplied by a fraction the denominator of which shall be the total number of square feet in the tax parcel of which such Exercised Lot is a part and the numerator of which are shall be the number of square feet in any way related to the such Property, and all expenses related thereto(b) said taxes and assessments shall be reprorated when the actual separate bills for such Property shall be issued.
(d) If, includingat the time of Closing, but the Property is not limited tobeing treated as a separate tax parcel, court costs then, within thirty days after Closing, the parties shall file the necessary petitions and attorneys' fees, provided, that applications to have the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed Property assessed as a separate tax parcel.
(e) The obligations set forth in this Agreement or in subparagraph (E) shall survive the closing documents delivered by SellerClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Heartland Partners L P)
Prorations. 6.7.112.1. Real Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses; real and personal property taxes, assessments, rents, security deposits; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day prior to the Closing Date, and CAM expenses 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 amount of any of the items to be prorated through Escrow between Buyer is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below and except for 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 the preceding sentence, Purchaser and Seller will agree on the amount of the credit to Purchaser. If Seller receives a credit for a utility deposit, Seller shall execute an assignment thereof substantially in the form attached as Exhibit N.
12.2. All monies received after Closing by Purchaser from any tenant of Close the Property who is indebted under a lease for rent for any period prior to 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 Escrow. Rents, security deposits and CAM expenses such monies to current rent shall be approved 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 Buyer prior Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Close Seller. Purchaser shall use good faith 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 EscrowPost-Closing Receipts through the first 90 days after the Closing Date. Rents 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 ($100,000.00) of the balance of the Purchase Price shall be deposited in escrow pursuant to the terms of the Escrow Agreement and shall constitute the "Holdback Escrow Funds". Seller and Purchaser shall set forth the outstanding rents and all other charges monthly payments due and payable to Purchaser (i.e. those allocable to the period of ownership of the Property by Purchaser) under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease Leases for the month in which the payment is received by Buyer; Closing occurs that have not already been credited to Purchaser at Closing (iiithe "Outstanding Rents Due") in a schedule to rents attributable to any period be created and agreed upon within three (3) business days after the Close of Escrow that are past due on the date of receipt; and Closing (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller"Closing Rent Schedule"). Buyer will Upon Closing, Purchaser shall use its best efforts to collect the Outstanding Rents Due. Purchaser shall also use commercially reasonable efforts to collect any delinquent rentsall 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, provided that Buyer has no obligation to institute legal proceedings1997, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller Purchaser shall deliver to Escrow Agent and Seller a schedule (the taxing authority their respective shares of such tax ▇▇▇▇, prorated "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 Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 executed after the date of this Agreement the Final Closing Schedule (the "Second Month Rents Actually Collected"); and (c) the difference between the Second Month Outstanding Rents Due and the Second Month Rents Actually Collected (the "Second Month Deficiencies"). In addition to setting forth the Second Month Deficiencies, the Final Closing Rent Schedule shall also set forth the Outstanding Rents Due that have still not been collected by Purchaser, together with appropriate documentation supporting any such amounts. The sum of (a) the Outstanding Rents Due which are still outstanding at the time of the Final Closing Schedule and (b) the Second Month Deficiencies shall be prorated between Buyer and Seller as their respective periods of ownership bear referred to the primary term of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.as
Appears in 1 contract
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (collectively, the “Proration Items”):
(i) to Buyer's actual out-of-pocket costs of collection incurred Rents, in accordance with respect to the collected amounts; Section 10.4(b) below.
(ii) Seller shall credit Purchaser at Closing with all cash Security Deposits and any prepaid rents, together with any interest to rents due under be paid to the Lease for the month in which the payment is received by Buyer; Tenant thereon.
(iii) to rents attributable to any period after the Close of Escrow that Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are past due 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 estimated adjustment shall be made for the days between the meter reading date of receipt; and the Closing Date based on the most recent meter reading.
(iv) to rents Amounts payable under the Apex Agreements and other charges delinquent as Service Contracts.
(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 Close of Escrow (and Buyer promptly will remit these amounts tax rate for the preceding year applied to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax ▇▇▇▇assessed valuation. 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other partyreason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and not later than 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.
(vi) The value of fuel stored at the Real Property, at Seller’s most recent cost, including taxes, on the basis of a reading made within ten (10) days prior to the delinquency date shown Closing by Seller’s supplier.
(vii) To the extent that any of Westcore Management’s employee benefits impose a waiting period on new employees before such benefit will be available, and Seller or MCRC has the ability to continue comparable benefits post-Closing in favor of the Company Employees, during all or a portion of such waiting period, payment to Seller or MCRC of the costs of continuing such benefits for such period.
(viii) Any unpaid costs necessary to complete the Mt. Pyramid Project will be credited to Purchaser. If the parties cannot reasonably agree on such tax costs, the amount in dispute will be held in escrow by the Escrow Agent until completion of the project, at which time, any unpaid costs not occasioned by (A) change orders agreed to by Purchaser post-Closing or (B) increases to the cost of construction resulting from the actions of Purchaser, will be paid from the escrow, and any excess monies will be paid to Seller. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as 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 ▇▇▇▇▇▇▇▇ Buyer 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 following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. For purposes of this Agreement, rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to (i) pursue legal action to enforce collection of any such amounts owed to Seller by any Tenant, (ii) terminate the Lease with respect to any such Tenant, or (iii) terminate any Tenant’s right to possession under such Lease. After the Closing, if Purchaser declines to pursue a collection action against a Tenant for Delinquent Rental, then Seller shall deliver have the right to do so; provided, however, that Seller shall not (A) terminate any Lease or terminate or disturb Tenant’s right to possession thereunder, or (B) commence any lawsuit until the earlier of one year after the Closing Date or one month prior to the taxing authority their respective shares expiration of the statute of limitations with respect to such tax claim. All sums collected by Purchaser from and after Closing from each Tenant (excluding tenant specific ▇▇▇▇, prorated ▇▇▇▇ for tenant work orders and other specific services as of Close of Escrow.
6.7.2. All leasing commissions owing described in and tenant improvements with respect governed by Section 10.4(d) below) will be applied first to the Property transactions entered into prior month in which the Closing occurs, then to execution of this Agreement shall current amounts owned by such Tenant to Purchaser and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will 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 executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear promptly remitted to the primary term of the new lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 6.7.1. Real (a) As between Assignee and Tenant, revenues and expenses, utility charges for the billing period in which the Transfer Date occurs, real and personal property taxes, assessments, rents, security deposits, certain prepaid expenses and CAM expenses other related items of revenue or expense attributable to the Facility shall be prorated through Escrow between Buyer Tenant and Seller as of Close of Escrow. Rents, security deposits and CAM expenses shall be approved by Buyer prior to Close of Escrow. Rents and other charges under the Lease that are delinquent Assignee as of the Close of Escrow will not Transfer Date. In general, such prorations shall be proratedmade so that as between Assignee and Tenant, and rents and other amounts received by Buyer on or Tenant shall be reimbursed for prepaid expense items to the extent that the same are attributable to periods after the Close Transfer Date and Tenant shall remain responsible for the payment as and when due of Escrow in respect 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 Lease will 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 Transfer Date.
(b) All such prorations shall be applied made on the basis of actual days elapsed in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any relevant accounting or revenue period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest most recent information available tax ▇▇▇▇to Tenant. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period Utility charges which are not metered and read on the Transfer Date shall be estimated based on prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other partycharges, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares be re-prorated upon receipt of such tax ▇▇▇▇, prorated statements therefor as of Close of Escrowthe Transfer Date.
6.7.2. (c) All leasing commissions owing and tenant improvements with respect amounts which are subject to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which proration under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are require adjustment after the Transfer Date shall be settled within thirty (30) days after the Transfer Date or, in any way related 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 Property, and all expenses related thereto, including but not limited amounts subject to court costs and attorneys' feesproration.
6.7.4. Buyer agrees (d) On the Transfer Date, Tenant shall have the right to indemnify and hold Seller harmless of and from remove any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought ▇▇▇▇▇ cash (as compared to resident funds) then being maintained by Tenant at the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by SellerFacility.
Appears in 1 contract
Sources: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)
Prorations. 6.7.112.1. Real property taxes, assessments, Rents (exclusive of delinquent rents, but including prepaid rents); refundable security depositsdeposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 5%; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses 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 amount of any of the items to be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rentsis not then ascertainable, security deposits and CAM expenses the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Rents and other charges under on the Lease that are delinquent as basis of the Close most recent ascertainable data. If the amount of Escrow will current real estate or personal property taxes is not then ascertainable, the adjustment thereof shall be prorated, and rents and other amounts received by Buyer on or after the Close basis of Escrow in respect 105% of the Lease most recent ascertainable tax bill(s). All prorations will be ▇▇▇al except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All rents collected by Purchaser shall first be applied in to current rent due from the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable applicable tenant and then to any period after the Close of Escrow that are past due on the date of receipt; and rent in arrears for said tenant at closing (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller"Delinquent Rent"). Buyer will Purchaser shall use commercially reasonable its best efforts to collect any delinquent rentsall amounts which, provided that Buyer has no obligation to institute legal proceedingsupon collection, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant would constitute Delinquent Rents hereunder to Seller. Tax Seller retains the right to conduct an audit, at reasonable times and assessment prorations upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Delinquent Rents reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall be based on pay to Seller said additional Delinquent Rents and the latest available tax ▇▇▇▇cost of performing Seller's audit. 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 recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution Paragraph 12.2 of this Agreement shall be paid by Seller, survive the Closing and Seller shall indemnify the delivery and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new leases 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 recording of the new leasedeed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other 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.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Properties LTD-Viii)
Prorations. 6.7.1The following are to be apportioned as of 12:00 a.m. EDT/EST on the day of Closing. Real property taxesSuch adjustments, assessmentsif and to the extent known and agreed upon as of Closing, rents, security deposits, and CAM expenses shall be prorated through Escrow between paid by Buyer and to Seller (if the prorations result in a net credit to Seller) or by Seller to Buyer (if the prorations result in a net credit to Buyer). Any such adjustments not determined as of Close of Escrow. Rents, security deposits and CAM expenses Closing shall be approved by Buyer prior to Close of Escrow. Rents and other charges under paid in accordance with the Lease that are delinquent as of the Close of Escrow will not be prorated, and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied process described in the immediately preceding sentence, in cash or other immediately available funds as soon as practicable following order: Closing.
(ia) to Buyer's actual outAll non-ofdelinquent ad valorem and non-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease ad valorem real property taxes and assessments for the month in which Real Property. If the payment is received by Buyer; (iii) to rents attributable to any period after Closing shall occur before the Close amounts of Escrow that such taxes and assessments are past due on fixed, apportionment of such taxes and assessments shall be based upon the date of receipt; and (iv) to rents and other charges delinquent as of proposed taxes for the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed year 2011 promulgated by the Tenant to Seller. Tax and assessment prorations County’s Property Appraiser’s Office using the maximum discount available or if said proposed taxes are not available, then the apportionment shall be based on the taxes and charges paid for the latest available tax ▇▇▇▇applicable period using the maximum discount available. IfWithout limiting the generality of the foregoing, the parties acknowledge that Seller may be pursuing an appeal seeking a reduction in the real property taxes applicable to the Real Property for the year 2011 or prior years. Buyer agrees to cooperate reasonably with Seller in pursuing any such appeal both prior to and after Close of Escrow, the Closing Date. All rebates resulting from any such appeal shall belong solely to Seller. Within five (5) business days after Buyer receives any further such rebate, Buyer shall pay such rebate to Seller. In addition, in the event the real property taxes are prorated at Closing based on an amount which is reduced subsequent to Closing as the result of any such tax appeal, Buyer agrees to reprorate the real property taxes at the request of Seller. The Buyer’s obligations set forth in this Section 5.2(a) shall survive Closing.
(b) Current accounts opened by Seller paid or supplemental tax ▇▇▇▇ relating payable under service or utility contracts covering the Property, including, without limitation, water, gas and electric services subject to meter readings. If there is no meter or if the bills for any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrowthe foregoing have not been issued before the Closing Date, the recipient charges therefore shall promptly deliver be adjusted on the Closing Date on the basis of the charges for the most recent prior period.
(c) Rents collected from tenants and other occupants of the Real Property, including prepaid rents and other revenues collected under the Tenant Leases. Prior to Closing, Seller shall furnish to Buyer and Escrow Holder a copy schedule of such tax ▇▇▇▇ all rents and other charges which are then payable by tenants and other occupants of the Real Property but which have not been paid to date. Buyer agrees that subsequent to the other partyClosing Date, any rents collected shall be applied first towards any rent arrearages owing to Seller and not later than shall be remitted to Seller within ten (10) days after receipt. The Buyer’s obligations set forth in this Section 5.2(c) shall survive Closing.
(d) All security deposits collected by Seller from tenants and other occupants of the Real Property, with any and all interest accrued thereon to the extent payable to tenants, which shall be transferred to Buyer or, at Seller’s option, appropriate adjustments therefore shall be made to the Purchase Price. Any prorations which are not expressly provided for herein shall be made in accordance with customary practice in the County. All apportionments made at the Closing pursuant to this Section 5.2 shall survive closing for a period of sixty (60) days. At the expiration of said period, unless either Seller or Buyer objects to an apportionment or proration, all adjustments shall be deemed final. Notwithstanding anything set forth in this Agreement to the contrary, Buyer acknowledges and agrees that Seller shall not be responsible for any costs, expenses or other amounts relating to or arising from the Property prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and which Seller shall deliver to the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are in any way related acquired title to the Property, and all which shall include, without limitation, any costs or expenses related theretoto any code violations, including but not limited to court costs and attorneys' feesopen permits, delinquent utility charges and/or liens.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to 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, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Prorations. 6.7.1. Real Sellers and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), security depositsexpenses under Permitted Exceptions, and CAM expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Sellers will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Sellers and Seller as of Close of Escrowsubmitted 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”). RentsThe Closing Statement, security deposits and CAM expenses once agreed upon, shall be approved signed by Buyer prior Purchaser and Sellers and delivered to Close the Title Company for purposes of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. Rents and other charges under The preliminary proration shall be paid at Closing by Purchaser to Sellers (if the Lease that preliminary prorations result in a net credit to Sellers) or by Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are delinquent not known as of the Close Closing Time, the prorations will be made -39- at Closing on the basis of Escrow 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 Sellers and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Sellers’ insurance policies will not be prorated, assigned to Purchaser. Final readings and rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by the Tenant to Seller. Tax and assessment prorations shall be based on the latest available tax final ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to any period prior utility bills (except to Close the extent covered by the proration of EscrowOperating Expense Recoveries). 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 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 Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrowbefore November 30, 2016 (herein, the recipient shall promptly deliver a copy “Final Proration Date”). The provisions of such tax ▇▇▇▇ to this Section 10.4 will survive the other partyClosing until the Final Proration Date has occurred, and not later than ten (10) days in the event any items subject to proration hereunder are discovered prior to the delinquency date shown on such tax ▇▇▇▇ Buyer and Seller shall deliver to Final Proration Date, the taxing authority their respective shares of such tax ▇▇▇▇, prorated as of Close of Escrow.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Agreement same shall be paid promptly prorated 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 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 agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorneys' fees (except those items which under parties in accordance with the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the date of closing and which are in any way related Section 10.4. Notwithstanding anything to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the date of closing and which are contrary provided in any way related to the Property, and all expenses related thereto, this Agreement including, but not limited to, court costs this Section 10.4(a), Sellers and attorneys' feesPurchaser hereby agree to use the following, providedestimated 2016 real estate taxes and assessments for purposes of the proration of same at Closing: (x) $172,450.00 for the Cherokee Plaza Real Property and the Cherokee Plaza Improvements, that (y) $154,000.00 for the foregoing indemnity shall not be construed to limit ▇▇▇▇▇ Plains Exchange Real Property and the effect of▇▇▇▇▇ Plains Exchange Improvements, nor shall it be applicable to and (z) $105,000.00 for the subject matter of, any of Seller's representations ▇▇▇▇▇▇▇▇ Bridge Commons Real Property and warranties expressed in this Agreement or in the closing documents delivered by Seller▇▇▇▇▇▇▇▇ Bridge Commons Improvements.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)