Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"): (i) Rentals, in accordance with Section 10.4(b) below. (ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon. (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading. (iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume. (v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months. (b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty Corp)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits Non-delinquent real property taxes and any prepaid rentscurrent installments on any improvement assessment liens, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges ▇▇▇▇▇-▇▇▇▇ bond payments and sewer charges. If there are meters on similar assessments affecting the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to Property and any personal property taxes affecting the Closing Date, and a per diem adjustment Personal Property shall be made for the days between the meter reading date and the Closing Date prorated based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements available tax bills using a 30-day month and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar a 360-day year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of Any increase in real estate property taxes shall be upon the basis and assessments arising out of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason sale of change in either assessment or rate or for any other reason) for the Real Property to Buyer (or its assignee), or a sale or change in ownership after the sale to Buyer, and Improvements should be determined any supplemental real property taxes and assessments arising out of any construction pertaining to be higher or lower than those that are apportioned, a new computation the Real Property completed following the Close of Escrow shall be madepaid by Buyer when assessed, and Buyer shall indemnify Seller from and against all such taxes. Any supplemental real property taxes or private assessments arising out of any occurrence before the Close of Escrow shall be paid by Seller when assessed to the extent such taxes or assessments are attributable to any period before the Close of Escrow, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period shall indemnify Buyer from and after the Proration Timeagainst all such taxes and assessments. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of parties’ indemnification obligations under this Section 10.4(a) will shall survive the Closing for twelve (12) monthsClose of Escrow.
(b) Purchaser will receive a credit Non-delinquent rentals and other charges payable by tenants shall be prorated based on the Closing Statement for the prorated amount updated Rent Roll delivered pursuant to Section 5(c)(v). Rentals are delinquent when payment thereof is more than thirty (30) days past due as of the Proration TimeClose of Escrow. In addition, rentals from a tenant less than thirty (30) days past due will be considered delinquent if that tenant also has at least one month of all Rental previously rental more than thirty days past due (e.g. if a tenant has not paid its monthly rental for January of a year, and assuming a date after February 1 for the Close of Escrow, due to or the January delinquency the rental for the month of February also will be considered delinquent even though it is less than thirty ((30) days past due). Escrow Holder shall credit the amount of security deposits held by Seller as shown on the Rent Roll against the Purchase Price payable by Buyer. Rentals collected by Seller not shown on the updated Rent Roll and attributable delinquent rentals collected by Buyer as hereafter provided shall be prorated by the parties outside of escrow as of the Closing Date and paid to any period the entitled party as soon as practical from and after the Proration Timetime to time as collected. After the ClosingClose of Escrow Buyer shall use its commercially reasonable efforts to collect any delinquent rentals, but Buyer shall not be required to file suit or evict a tenant. If, after making diligent efforts to collect delinquent rentals from any tenant or tenants, or ninety (90) days after the Close of Escrow, whichever first occurs, Buyer elects not to file a legal action against such tenant or tenants, Buyer shall notify Seller, and Seller will cause may file a legal action or actions against such tenant or tenants for the delinquent rentals owing to Seller except that Seller shall not pursue an eviction remedy. Delinquent rentals collected by Buyer, net of the reasonable costs of collection (including attorney’s fees), shall be paid or turned over to Purchaser all Rentalapplied first against rent accruing for the month in which the Closing occurs, then against any other amounts owing Buyer, then against other amounts most overdue. Percentage rent, if applicable and if any, received for the rental period including Closing shall be prorated upon receipt, based upon the tenant’s sales for the portion of the lease year allocable to Seller’s and Buyer’s respective ownership of the Property.
(c) No later than two (2) business days before the Close of Escrow, the parties will prorate outside of escrow on an accrual basis all known deposits and operating expenses concerning the Property, refundable deposits held by Seller after any governmental agency or utility that will be assigned to Buyer at the Close of Escrow. If any of the foregoing cannot be apportioned at the Closing Date because of the unavailability of the amounts which are to be apportioned, such items shall be apportioned and attributable paid to any period from and the entitled party as soon as practicable after the Proration TimeClosing Date, but in no event later than ninety (90) days after the Closing Date. "RENTAL" as used herein includes fixed monthly rentalsSewer, additional rentalsgas, percentage rentalselectric, escalation rentals (which include each Tenant's proration share of building operation telephone and maintenance costs and expenses as provided for under the Leaseother utility charges, to the extent not reimbursed or paid directly by tenants, shall not be prorated but shall be paid by Seller to the same exceeds any expense stop specified utility company.
(d) Buyer and Seller shall take all steps necessary to effectuate the transfer of all utilities presently in such Lease)Seller’s name into Buyer’s name as of the Close of Escrow. Where necessary, retroactive rentals, all administrative charges, Buyer will post deposits with the utility charges, tenant or real propertycompanies.
(e) All prorations and adjustments shall be made as of 12:00 midnight on the day immediately preceding the Closing Date.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Prorations. The following items relating to the Assets and the ownership and operation of the Generating Assets will be allocated pro rata per diem for the tax year that includes the date of Closing, with Seller liable for such items to the extent they are allocable to the period prior to the date of the Closing and Purchaser liable for such items to the extent they are allocable to periods beginning with and subsequent to the Closing:
(a) Seller and Purchaser agree Property Taxes on or with respect to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowAssets.
(iib) Cash Security Deposits and any prepaid Rents, additional rents, together Taxes, to the extent normally adjusted in connection with interest required to be paid thereonsimilar transactions, and other items payable by Seller under the Real Property Leases and the Business Contracts.
(iiic) Utility The amount of rents, Taxes and charges payable by Sellerfor sewer, includingwater, without limitationtelephone, electricity, water charges electricity and sewer charges. If there are meters on other utilities relating to the Real PropertyProperty and the real property subject to the Real Property Leases.
(d) All other items (excluding other Taxes) normally adjusted in connection with similar transactions. Except as otherwise agreed by the parties, Seller will cause readings the net amount of all said meters to such prorations will be performed not more than five settled and paid as of date of the Closing. At least ninety (590) days prior to date of the Closing, Seller will provide Purchaser with a reasonably detailed schedule showing a calculation of the estimated prorations as if the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based were occurring on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearsuch date. If the Closing Date shall occur before the tax a real estate Tax rate is fixed, the apportionment of real estate taxes Taxes shall be based upon the basis of the tax Tax rate for the preceding year applied to the latest assessed valuationvaluation and such Taxes shall be reprorated upon the request of Seller, on the one hand, or Purchaser, on the other hand, made within sixty (60) days after the date that the actual amounts become available. If, subsequent Seller and Purchaser agree to furnish each other with such documents and other records as may be reasonably requested in order to confirm all adjustment and proration calculations made pursuant to this Section 1.06. To the extent required by any approval of the transfer of the FERC project licenses related to the Closing DateHydro Units, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by all annual charges accrued under such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known licenses as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Asset Purchase Agreement (Pp&l Inc), Asset Purchase Agreement (Pp&l Resources Inc)
Prorations. (a) Seller All normal and Purchaser agree customarily proratable items relating to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by SellerPurchased Assets, including, without limitation, electricityReal Property Taxes, water charges personal property taxes, utility bills, alarm and sewer charges. If there are meters on security bills, ground lease rent and tower lease rent (collectively, the Real Property, Seller will cause readings "Closing Date Prorations") shall be prorated as of all said meters to be performed not more than five (5) days prior to the such assets' respective 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 being charged and credited for all of the Proration Items relating same up to such date ("Seller's Closing Date Prorations") and Purchaser being charged and credited for all of the period from same on and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the such date ("Purchaser's Closing Date (the "CLOSING STATEMENTProrations"). The Closing Statement, once agreed upon, All earn▇▇▇ ▇▇▇ey deposits held by Seller under Tower Leases for which Purchaser assumes liability under a Tower Lease Assignment and Assumption Agreement shall be signed by credited in favor of Purchaser and Selleragainst the Purchase Price. The proration Pre-Paid Expenses shall be paid at Closing by Purchaser to credited in favor of 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 against the Purchase Price at in the Closingaggregate amount thereof. If the actual amounts of the Proration Items are not known as of the Within ninety (90) days after each Closing Date, the prorations Seller 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, prepare and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as notify Purchaser of the Closing Date Prorations applicable to such Closing Date. If Purchaser disagrees with Seller's calculation of Closing Date Prorations, in which event no proration Purchaser will be made at notify Seller within five (5) business days after receipt of the Closing calculation. If the parties cannot resolve a disagreement as to such calculation within three (3) business days thereafter, they shall promptly submit the disagreement to an arbitrator mutually selected by the parties (the "Arbitrator"), whose decision with respect to utility billssuch Closing Date Prorations (which decision must be rendered within ten (10) business days after submission) will be final and binding. Purchaser and 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 each pay one-half of the Proration Time) expenses of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyArbitrator.
Appears in 2 contracts
Sources: Asset Purchase Agreement (LCC International Inc), Asset Purchase Agreement (LCC International Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding On the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits all obligations and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items liabilities listed below relating to the period up to the Proration Time, and Purchaser Business and/or Assets will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known prorated as of the Closing Date, with Seller liable to Purchaser therefor to the extent such items relate to any time period up to and including the day prior to the Closing Date and Purchaser liable to Seller therefor to the extent such items relate to any time period commencing on or after the Closing Date: personal property, real estate, occupancy and water taxes, if any, on or with respect to the Business and/or Assets; rents, taxes and similar items payable by Seller under any Assigned Contract; the amount of any license or registration fees paid to a Governmental Authority with respect to any Permits which are being assigned or transferred hereunder; the amount of sewer rents and charges for water, telephone, electricity and other utilities and fuel; and any other items which are normally prorated in connection with similar transactions. Seller agrees to furnish Purchaser with such documents and other records as Purchaser reasonably requests in order for Purchaser to calculate all adjustments and prorations will pursuant to this Section 1.5. The amount of such prorations owed by Purchaser or Seller pursuant to this Section 1.5 shall be made at paid to Purchaser by Seller or to Seller by Purchaser, as the case may be, on the Closing Date and shall be treated as an adjustment to the Purchase Price paid by Purchaser to Seller on the Closing Date. If current payments with respect to items to be prorated pursuant to this Section 1.5 are not ascertainable on the Closing Date, such payments shall be prorated on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇most recently ascertainable ▇▇▇▇ for utilities will therefor and shall be reprorated between Seller and Purchaser within 30 days after the Closing Date and a cash settlement shall be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthspromptly thereafter on an item by item basis.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Asset Purchase Agreement (Chart House Enterprises Inc), Asset Purchase Agreement (Landrys Restaurants Inc)
Prorations. 15.1 Water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (a) i.e. adjusted for all tenants' liabilities, if any, for such items); operating expenses paid by Seller and Purchaser agree to adjust, as of 11:59 p.m. on which are reimbursable by the day preceding tenants for the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days period prior to the Closing Date, and a per diem adjustment shall be made less any amount previously paid by the tenants; unpaid operating expenses for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date prorated on a "net" basis, as set forth above; and all other items of expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing Date (the "CLOSING STATEMENTProration Date"). The Closing Statement, once agreed upon, Seller shall be signed entitled to a credit for all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser and Sellershall make its own replacement deposits for utilities as may be required by the respective utilities involved. The proration Assessments, excluding regular ad valorem real estate taxes, payable in
15.2 All basic rent paid following the Closing Date by any tenant of the Property who is indebted under a Lease for basic rent for any period prior to the Proration Date in an amount greater than the amount of all current basic rent owed by said tenant to Purchaser shall be deemed a "Post-Closing Receipt" until the earlier to occur of (i) one year after the Closing Date, or (ii) such time as all such indebtedness is paid at Closing by in full. Within ten (10) days following the end of each calendar month, Purchaser shall pay to Seller (if Post-Closing Receipts collected in the prorations result in a net credit to Seller) previous month. Purchaser shall use its reasonable, good faith efforts, at no additional cost or by Seller to Purchaser (if the prorations result in a net credit expense to Purchaser) by increasing or reducing , to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 30 days after 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 one-year anniversary of the Closing Date, upon the prorations will be made at written request of Seller, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing on Receipts through the basis first year after the Closing Date. Upon the delivery of the best evidence then available; thereafterPost-Closing Receipts reconciliation, when actual figures are received, rePurchaser shall deliver to Seller any Post-prorations will be made on Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the basis terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the actual figuresPost-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, and a final cash settlement will be made between Purchaser shall pay to Seller and said additional Post-Closing Receipts. Purchaser's obligations to attempt to collect Post- Closing Receipts shall expire one year from the Closing Date. No prorations will be made in relation Seller shall retain the right to insurance premiums, and Seller's insurance policies will not be assigned sue any tenant for rent owed to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements ler for any deposits with period prior to the utility providersProration Date. The provisions This Paragraph 15.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) monthsand the delivery and recording of the Deed.
(b) Purchaser will receive a credit on 15.3 Seller covenants to operate, maintain and manage the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent Property in the same exceeds any expense stop specified in such Lease)manner that it has managed, retroactive rentalsmaintained and operated the Property during the period of Seller's ownership, all administrative charges, utility charges, tenant or real propertysubject to reasonable wear and tear and casualty.
Appears in 2 contracts
Sources: Sale Agreement (Balcor Equity Pension Investors Ii), Sale Agreement (Balcor Equity Pension Investors I)
Prorations. 12.1. Rents (aexclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); prepaid or accrued (as the case may be) Seller interest on the Existing Bond and Purchaser agree to adjustMortgage Documents, water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 5%; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment credited against the balance of the cash due at Closing. To the extent any escrows or bond repayment deposits established in connection with the Bonds or Existing Bond and Mortgage Documents are not refunded to Seller at Closing, the proceeds in said escrows shall be made for the days between the meter reading date assigned to Purchaser and the Closing Date based on amounts thereof shall be a credit to Seller at the most recent meter reading.
(iv) Amounts Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation Purchaser shall pay such Post-Closing Receipt to insurance premiumsSeller, and Seller's insurance policies will Purchaser shall use reasonable efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder, but shall not be assigned liable to PurchaserSeller for its failure to collect same. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in which event no proration will be made accordance with the terms hereof. Seller retains the right to conduct an audit, at the expense of Seller at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing with respect Receipts reconciliation statement and upon the verification of additional funds owing to utility bills. Seller, Purchaser shall pay to Seller will be entitled to all deposits presently in effect with the utility providerssaid additional Post-Closing Receipts, and in the event Seller's audit discovers additional Post-Closing Receipts greater than $5,000.00, Purchaser will be obligated to make its own arrangements for any deposits with shall pay the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 2 contracts
Sources: Agreement of Sale (Balcor Realty Investors 85 Series I), Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. 13.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be made for the days between the meter reading date and the prorated at Closing Date based on the most recent meter reading.
(iv) Amounts payable under ascertainable data. Seller shall pay at Closing the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable bills therefor for the calendar yearperiod to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax rate for the preceding year applied consulting agreements with respect to the latest assessed valuationProperties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. If, subsequent The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date, real estate taxes (by reason . All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of change in either assessment or rate or the Closing Date so that Seller shall be responsible for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser costs associated therewith prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, and Purchaser shall be signed by Purchaser responsible for any costs associated therewith arising from and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of after the Closing Date, the . All prorations will described in this Agreement (except prorations for real and personal property taxes which shall be made at Closing deemed final as prorated on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will ) shall be subject to post-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to utility bills. Seller will such prorations; provided, however, that such prorations shall be entitled deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all deposits presently in effect with the utility providers, prorations shall be deemed final and Purchaser will be obligated not subject to make its own arrangements for any deposits with the utility providersfurther post-closing adjustment. The provisions of this Section 10.4(a) will the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for twelve any period prior to the date of Closing, free from any claim thereon by the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (12by legal action or otherwise) monthsthe collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any Lease which will remain effective subsequent to Closing, even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser will receive shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the Closing Statement date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the prorated amount owner of said rights a license fee equal to One Hundred Dollars (as $100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the Proration Time) of all Rental previously paid state where such Property is located to prevent such unauthorized use or collected to recover any damages authorized by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertylaws.
Appears in 2 contracts
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 86), Sale Agreement (Balcor Colonial Storage Income Fund 86)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits (to the extent such Security Deposits have not yet been applied toward the obligations of any Tenant under the Leases) and any prepaid rents, together with interest required to be paid to Tenants thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five three (53) days Business Days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assumeConstruction Contracts.
(v) Real estate Amounts payable under the Spectrasite Agreements (unless Purchaser complies with the requirements in Section 3.2).
(vi) Ad valorem 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 ad valorem 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 ad valorem 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 Any and all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of ClosingClosing shall be prorated in the same manner as ad valorem taxes set forth above. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for all unpaid amounts under the Construction Contracts assumed by Purchaser hereunder to the extent such amounts relate to incomplete tenant improvements contemplated by the relevant Lease. Purchaser will also receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration proportionate share of building operation and maintenance costs and expenses as provided for under the its Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. Rental is "DELINQUENT" when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. With respect to Tenants still in occupancy, Purchaser agrees to use commercially reasonable efforts with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by any Tenant. With respect to Tenants no longer in occupancy, Seller reserves the right to pursue the collection of Delinquent Rental. 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 current Rental (which may include delinquencies owed to Seller for the calendar month of Closing) and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller.
Appears in 2 contracts
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P), Sale Agreement (Mack Cali Realty L P)
Prorations. 15.1 Rent, additional rent, water and other utility charges; fuels; operating expenses; real and personal property taxes (a) Seller adjusted for all tenants' liabilities, if any, for such items); and Purchaser agree to adjust, all other items of expense and income shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (the "PRORATION TIMEProration Date"). Seller shall be entitled to a credit for all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the following (collectivelyrespective utilities involved. Assessments, the "PRORATION ITEMS"):
(i) Rentalsexcluding regular ad valorem real estate taxes, payable in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there installments which are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days due prior to the Closing Date, and a per diem adjustment Date shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts paid by Seller. Assessments, excluding regular ad valorem real estate taxes, payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the most recent ascertainable data. If any ongoing real estate tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to contest has not been finalized as of the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) Purchaser and Seller agree that the tax bill existing prior to the conte▇▇ ▇hall be the most recent data for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be madetax year being contested, and Seller (i) Purchaser agrees to pay Purchaser any increase shown by re-prorate such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or amount as it relates to be incurred in connection with any the real estate tax appeals that are pending at proration for the time current tax year to the extent such tax contest is successful. All other prorations will be adjusted finally pursuant to Paragraph 15.4 below. Purchaser shall be credited with and Seller shall be charged with an amount equal to the sum of Closing(i) all Tenant security deposits and interest thereon required under the Leases, and (ii) the amount of any other credits due to Tenants as of the Closing Date in accordance with the terms of the Leases, including prepaid rent. Seller will shall be entitled to retain all Tenant security deposits, interest thereon, or other such credits due Tenants for which Purchaser receives credit and Seller is charged pursuant to this Paragraph. At the Closing, Seller shall give Purchaser credit for an amount, determined on an accrual basis, equal to the abatement of rent for any period on and credited for after the amounts Closing Date to which Tenants are entitled under Leases in effect on the Closing Date. Subject to the other terms of this Agreement, Purchaser shall assume the performance of all terms, covenants and conditions of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating Leases with respect to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Agreement of Sale (Balcor Equity Pension Investors Ii), Agreement of Sale (Balcor Equity Pension Investors Iii)
Prorations. (a) Seller and Purchaser agree to adjust, 12.1. The following items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and credited against the balance of the cash due at Closing: i) rents (exclusive of delinquent rents, but including prepaid rents); ii) refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); iii) water and other utility charges; iv) fuels; v) prepaid operating expenses; vi) real and personal property taxes and assessments ("Taxes") prorated on a per diem adjustment "net" basis based on 105% of the most recent actual tax bills. The amount of the proration shall be made for calculated by (1) determining the days between net amount (the meter reading date "Net Amount") of (x) the amount of all Taxes accrued but not yet due and payable as of the Closing Date (based on the most recent meter reading.
actual bills), minus (ivy) Amounts the aggregate amount payable under by tenants of the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable Property for their respective shares of Taxes for the calendar yeartime period covered by the proration; (2) multiplying the Net Amount by 105%. If In addition, Seller shall give Purchaser a credit for the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis aggregate amount actually paid or deposited by tenants of the tax rate Property, as of the Closing, for their respective shares of Taxes for the preceding year applied to time period covered by the latest assessed valuation. If, subsequent to proration; vii) operating expenses which are reimbursable by the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) tenants for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (less any amount previously paid by the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, Tenants shall be signed by Purchaser credited to Seller; and Sellerviii) other similar items. The proration Assessments payable in installments which are due subsequent to the Closing Date shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on the basis final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All monies received after Closing by Purchaser from any tenant of the actual figuresProperty who is indebted under a lease for rent for any period prior to and including the Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of such monies to current rent and other charges shall be deemed a "Post-Closing Receipt" but only to the extent such pre-closing indebtedness has not been paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall set forth both current and a final cash settlement will be made between Seller and Purchaserdelinquent rent amounts on tenant bills in an effort to collect all amounts owing from tenants, including those which, upon collection, would constitute Post-Closing Receipts hereunder. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 2 contracts
Sources: Agreement of Sale (Balcor Pension Investors Vi), Agreement of Sale (Balcor Pension Investors Vi)
Prorations. The following adjustments to the Purchase Price shall be made between Seller and Purchaser:
(a) Seller and Purchaser agree to adjustThe following items, as applicable, shall be prorated between Purchaser and Seller on a per diem basis as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):Date:
(i) Rentalsall nondelinquent real estate taxes, installments of general and special assessments, homeowner's association dues, if any, and fire protection service charges, if any, due and payable in accordance with Section 10.4(b) below.the calendar year in which Closing occurs, based upon the most recent information available to Seller. If Closing shall occur before the tax rate or assessment for the current year is fixed, the initial proration of such taxes or assessments shall be based upon the latest available information. Thereafter, when the actual tax rate for such current year becomes known, Seller and Purchaser shall, outside of escrow and after Closing, re-prorate any such taxes or assessments to the extent that the actual rate thereof was different than the rate used for prorations made at Closing and shall pay, one to the other, any adjustment due as a result of such re-proration;
(ii) Cash Security Deposits current rents for the month in which the Closing occurs as actually paid, advance rentals, nonrefundable deposits and any prepaid rentsother charges, together with interest required to be paid thereon.if any, payable by Tenants under the Leases; and
(iii) Utility all charges payable by for fuel, water, sewer, electricity and other utility services furnished to the Property which are not metered to Tenants. Seller, includingto the extent the same is obtainable, without limitation, electricity, water charges and sewer chargesshall furnish meter readings for such utilities through the close of business on the day prior to the Closing. If there any such meter readings are meters on the Real Propertynot so obtainable, then Seller will cause shall provide meter readings as of all said meters to be performed a date not more than five thirty (530) days prior to the Closing Date, and a per diem adjustment the proration of utility charges shall initially be based upon such prior reading. Upon the taking of actual meter readings first after Closing, such proration shall be made for readjusted outside of escrow after Closing and Seller or Purchaser, as the days between case may be, shall promptly pay to the meter reading date and other the Closing Date based on the most recent meter readingamount determined to be so due upon such readjustment.
(ivb) Amounts payable under the Spectrasite Agreements All other items of accrued or prepaid income and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes expense shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known prorated as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereaftermost recent ascertainable amounts of or other reliable information for each item of income and expense. Seller and Purchaser shall duly cooperate with each other and the Title Company in making prorations, when actual figures are receivedadjustments and credits pursuant to this Section 10 and shall, re-prorations will be made on as requested by the basis Title Company, furnish to the Title Company such information as is in the possession of or obtainable by them to assist in making such prorations, adjustments or credits. In the event, for any reason beyond the reasonable control of the actual figuresparties hereto, information necessary to calculate any proration, adjustment or credit for any item required to be prorated, adjusted or credited under this Section 10 is not available prior to Closing, then such items shall be prorated, adjusted or credited outside of escrow after Closing as soon as such information is available, and a final cash settlement will be made between Seller and PurchaserPurchaser shall duly cooperate with each other in regard thereto and shall pay, one to the other, any amounts which may be owing as a result of any such subsequent proration, adjustment or credit. No In the event, at any time within six (6) months after Closing, errors shall be discovered in any prorations, adjustments or credits made pursuant to this Section 10, Seller and Purchaser shall correct such errors and shall pay, one to the other, any sums owning as a result of such correction.
(c) For purposes of all prorations will provided for in this Agreement, Seller shall be made in relation responsible for all days up to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, and Purchaser shall be responsible for all days including and after the Closing Date. Except as otherwise expressly provided in which event this Agreement, all prorations shall be final.
(d) Security deposits, including cleaning and pet deposits, and prepaid rent and any interest thereon, in the amounts set forth in the Leases (or if not set forth therein, as set forth on the Rent Roll) shall be credited to Purchaser at Closing.
(e) If on the Closing Date any Tenant is delinquent in the payment of rent, including any additional rent billed but unpaid at the time of Closing, the delinquent rent attributable to the period prior to the Closing shall remain the property of Seller and be paid to Seller if, as and when collected by Purchaser out of the funds received by Purchaser from such Tenant, and no proration will of such delinquent rent shall be made at Closing. For a period of one hundred eighty (180) days after Closing, Purchaser shall use reasonable efforts to attempt to collect and shall remit to Seller any such delinquent rents owing to Seller; provided, however, that (i) Purchaser shall be required only to periodically send bills to the Closing with respect Tenant(s) owing such delinquent rent and shall not be required to utility bills. Seller will be entitled to all deposits presently commence any litigation or undertake any other collection efforts in effect with regard thereto; and (ii) in the utility providers, and event Purchaser will be obligated to make its own arrangements collects rent from a person who owes rent for any deposits with period of time after Closing and for a period of time prior to Closing, all amounts collected from such person shall be applied first to the utility providers. The provisions amount of this Section 10.4(a) will survive rents owing by such person for the period of time after Closing for twelve (12) monthsand retained by Purchaser and only the excess, if any, shall be remitted to Seller.
(bf) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After Contemporaneously with the Closing, Seller will cause to be paid or turned over shall deliver to Purchaser at the offices of Seller's property manager all Rentaloriginals (including computer discs and tapes) of books and records of accounts, contracts, leases, leasing correspondence, receipts for deposits, bills and other papers that pertain to the Property, together with all advertising materials, booklets, keys and other items, if any, received used in the Property's operation, provided that Seller, at Seller's cost, may retain a copy of the foregoing items for tax reporting purposes. After the Closing and solely for the purposes of Section 10, Seller, upon at least five (5) days' prior written request to Purchaser, shall have the right to inspect the books and records for the Property located at the office of Purchaser and/or Purchaser's property manager to verify that Purchaser is remitting to Seller the proper amounts according to this Agreement and for any other purpose related to Seller's prior ownership of the Property.
(g) The cost of any tenant improvements paid or incurred by Seller after Closing for Leases approved by Purchaser and attributable to any period from and executed after the Proration Timedate of this Agreement shall be paid in full by Seller at or before Closing. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation Seller shall supply to Purchaser and maintenance costs Title Company paid invoices and expenses as provided final lien waivers for under the Lease, all such tenant improvement work to the extent performed on or prior to the same exceeds Closing Date. Any provision of this Agreement to the contrary notwithstanding, after the Effective Date, Seller shall not undertake any expense stop specified in tenant improvement work on any Unit without the prior written consent of Purchaser, such Lease)consent not to be unreasonably withheld, retroactive rentals, all administrative charges, utility charges, tenant conditioned or real propertydelayed.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Development Partners), Purchase and Sale Agreement (Development Partners Ii)
Prorations. Escrow Holder will prorate between the parties, in Cash, to the Close of Escrow, an amount calculated by multiplying the Total Sales Percentage by each of the following: (a) 2012 state, County, city and special district (if any) real property taxes, special taxes and assessments for the Project based on the latest information available to Escrow Holder (i.e., $4,205,805 real property taxes for the 2012 tax year calculated using the total assessed value provided in the 2012 First Pass Assessment (i.e., $25,953,750) and the effective tax rate for 2011), (b) rental payments, other revenues and expenses and (c) any other items Seller and Purchaser agree Buyer mutually instruct Escrow Holder to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prorate prior to the Closing Date, Close of Escrow. All rental payments and other tenant charges and additional rents received by Buyer from a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If tenant after the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied first to collection costs and then to the latest assessed valuationmost recently accrued obligation of such tenant. IfAfter application as set forth above, subsequent Buyer shall remit to Seller on the Final Adjustment Date (as defined below) that portion of rentals and other tenant charges and additional rents received after the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined Date attributable to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser periods prior to the Closing Date (month of Closing, and if attributable to the "CLOSING STATEMENT"). The Closing Statementmonth of Closing, once agreed uponSeller’s share thereof in accordance with the proration set forth above; provided, however, that any rent received from the United States of America, the Department of Homeland Security and Department of Justice, and Internal Revenue Service Department of Treasury, Bureau of Alcohol, Tobacco and Firearms shall be signed by Purchaser and Sellerdeemed to be payment for the prior month’s outstanding rent due. The proration In the event any prorations made under this Agreement shall prove to be incorrect for any reason, then any party shall be paid at Closing by Purchaser entitled to Seller (if an adjustment to correct the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to same. Any item which cannot be delivered by Purchaser in payment finally prorated because of the Purchase Price at the Closing. If the actual amounts unavailability of the Proration Items are not known as of the Closing Date, the prorations will information shall be made at Closing tentatively prorated on the basis of the best evidence data then available; thereafter, when actual figures are received, available and re-prorations will prorated when the information is available. If any items to be adjusted are not determinable at Closing (including, but not limited to, items set forth in this Article 5), the adjustment shall be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation subsequent to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing within thirty (30) days following the final determination of 2012 taxes and assessments for the Project (the “Final Adjustment Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers”). The provisions of this Section 10.4(a) will Article 5 and the obligations of Sellers and Buyer hereunder shall survive the Closing for twelve (12) monthsand shall not be deemed merged into any instrument delivered at Closing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Purchase Agreement (G REIT Liquidating Trust), Purchase Agreement (NNN 2002 Value Fund LLC)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited against the balance of the cash due at Closing. Assessments payable in installments which are due subsequent to the day preceding before the Closing Date (shall be paid by Purchaser. If the "PRORATION TIME")amount of any of the items to be prorated is not then ascertainable, the following (collectively, adjustments thereof shall be on the "PRORATION ITEMS"):
(i) Rentals, basis of the most recent ascertainable data. All prorations will be final except as to the matters referred to in accordance with Section 10.4(b) Paragraph 12.2 below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real PropertySeller shall have collected from tenants any payments for utilities, taxes, common area expenses, or other operating expenses in excess of amounts incurred by Seller will cause readings of all said meters to be performed not more than five (5) days for any period prior to the Closing Date, and then Purchaser shall receive a per diem adjustment shall be made credit 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 yearsuch excess amounts. If the Closing Date shall occur before the tax rate Seller is fixedcredited for any utilities, the apportionment taxes, common area expenses, or other operating expenses in excess of real estate taxes shall be upon the basis of the tax rate amounts incurred by Seller for the preceding year applied to the latest assessed valuation. If, subsequent any period prior to the Closing Date, real estate taxes (by reason of change in either assessment or rate or then Purchaser shall receive a credit for such excess amounts. If Seller is credited for any utilities, taxes, insurance, CAM or 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 expenses which 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 has paid applicable to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the proration date and which are reimbursable by tenants after the Closing, the amount of the credit shall be held in escrow by the Title Company and shall be released to Seller when payment is made by the tenant.
12.2. All basic rent paid following the Closing Date (by any tenant of the "CLOSING STATEMENT"). The Property who is indebted under a lease for basic rent for any period prior to and including the Closing Statement, once agreed upon, Date shall be signed deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser and of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. The proration Purchaser shall be paid at use its best efforts to collect all amounts which, upon collection, would constitute Post-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 ClosingReceipts hereunder. If the actual amounts of the Proration Items are not known as of Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in which event no proration will be made accordance with the terms hereof. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and the cost of performing Seller's audit. Paragraph 12.2 of this Agreement shall survive the Closing and the delivery and recording of the deed. If, following the Closing, Seller receives any rebates or refunds of utility charges, insurance, real or personal property taxes or operating expenses, the amount of such rebate or refund shall be paid to Purchaser, and Purchaser shall indemnify, defend and hold harmless the Seller against the claims of Tenants 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 providerssuch funds. The provisions of this Section 10.4(a) will paragraph shall be confirmed at and shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 2 contracts
Sources: Sale Agreement (Balcor Equity Pension Investors Iii), Agreement of Sale (Balcor Equity Pension Investors Ii)
Prorations. 3.2.1. The following shall be apportioned with respect to the Property as of the end of the Transition Period (as defined in Section 6.1.1), as if Purchaser were vested with title to the Property as of the end of the Transition Period.
(a) Seller and Purchaser agree to adjustrents, if any, as of 11:59 p.m. on the day preceding the Closing Date and when collected (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, term “rents” as used in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of this Agreement includes all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes payments due and payable for by Tenants under the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate Leases);
(b) taxes (by reason of change in either assessment or rate or including personal property taxes on the Personal Property) and assessments levied against the Property;
(c) payments under the Contracts;
(d) gas, electricity and other utility charges for any other reason) for the Real Property and Improvements should be determined which Seller is liable, if any, such charges to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made apportioned at Closing on the basis of the best evidence then availablemost recent meter reading occurring prior to Closing; thereafterand
(e) any other accrued or prepaid operating expenses for the Property and, when actual figures are receivedto the extent customarily prorated between a purchaser and a seller in the Commonwealth of Massachusetts, re-prorations will be made any other items pertaining to the Property.
3.2.2. Notwithstanding anything contained in the foregoing provisions:
(a) At Closing, Seller shall deliver to Purchaser any security deposits and prepaid rents (for periods on or after the basis end of the actual figures, Transition Period) under the Leases or credit to the account of Purchaser the unapplied amount of such security deposits and a final cash settlement will prepaid rents. All prepaid rents covering the period of time commencing on or after the end of the Transition Period shall be made between delivered by Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Purchaser on the Closing Date, or Purchaser may elect to receive a credit against the Purchase Price in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions amount of this Section 10.4(a) will survive the Closing for twelve (12) monthssuch prepaid rents.
(b) Purchaser will receive a credit on Any taxes paid at or prior to Closing shall be prorated based upon the Closing Statement amounts actually paid. If taxes and assessments for the prorated amount (as of the Proration Time) of all Rental previously current year have not been paid to or collected by Seller and attributable to any period from and after the Proration Time. After the before Closing, Seller will cause shall be charged at Closing an amount equal to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing that portion of such taxes and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (assessments which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, relates to the extent period before the same exceeds any expense stop specified in end of the Transition Period and Purchaser shall pay the taxes and assessments prior to their becoming delinquent. Any such Lease)apportionment made with respect to a tax year for which the tax rate or assessed valuation, retroactive rentalsor both, all administrative chargeshave not yet been fixed shall be based upon the most recent ascertainable, utility charges, tenant or real propertyand shall be re-prorated post-Closing once final taxes and assessments for such period have been determined.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Global Partners Lp)
Prorations. Notwithstanding anything to the contrary in any CAPCO Agreement:
(a) Seller The Parties agree that all of the items normally prorated, including those listed below (but not including Income Taxes), relating to the business and Purchaser agree to adjust, operation of the DLC Nuclear Assets shall be prorated as of 11:59 p.m. on the day preceding DLC Nuclear Closing Date, with DLC liable to the extent such items relate to any time period prior to the DLC Nuclear Closing Date, and the applicable Specified FE Subsidiary liable to the extent such items relate to periods commencing with the DLC Nuclear Closing Date (measured in the "PRORATION TIME")same units used to compute the item in question, the following (collectively, the "PRORATION ITEMS"otherwise measured by calendar days):
(i) RentalsPersonal property, in accordance real estate and occupancy Taxes, assessments and other charges, if any, on or with Section 10.4(b) below.respect to the business and operation of the DLC Nuclear Assets;
(ii) Cash Security Deposits Rent, Taxes and all other items (including prepaid services or goods not included in Inventory) payable by or to a DLC under any prepaid rents, together with interest required to be paid thereon.of the DLC Nuclear Agreements;
(iii) Utility charges payable by SellerAny permit, includinglicense, without limitationregistration, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters compliance assurance fees or other fees with respect to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.any Transferable Permit;
(iv) Amounts payable under Sewer rents and charges for water, telephone, electricity and other utilities with respect to the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.DLC Nuclear Assets;
(v) Real estate taxes due Rent and Taxes payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for DLC under the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating Leases assigned to the period up to the Proration Time, applicable Specified FE Subsidiary; and
(vi) ANI and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ insurance premiums for utilities will be made if possible as the current year or other applicable policy period;
(vii) Impositions and fees payable to the Department of Energy and the NRC; and
(viii) Membership fees in respect of the Closing DateInstitute for Nuclear Power Operator, the Nuclear Energy Institute and similar organizations involved solely in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsnuclear matters.
(b) Purchaser will receive a credit In connection with the prorations referred to in Section 3.4 (a) above, in the event that actual figures are not available at the DLC Nuclear Closing Date, the proration shall be based upon the actual Taxes or other amounts accrued through the DLC Nuclear Closing Date or paid for the most recent year (or other appropriate period) for which actual Taxes or other amounts paid are available. Such prorated Taxes or other amounts shall be re-prorated and paid to the appropriate Party within sixty (60) days of the date that the previously unavailable actual figures become available. The prorations shall be based on the number of days in a year or other appropriate period (i) before the DLC Nuclear Closing Statement for the prorated amount Date and (as of the Proration Timeii) of all Rental previously paid to or collected by Seller and attributable to any period from including and after the Proration TimeDLC Nuclear Closing Date. After the Closing, Seller will cause The Parties agree to furnish each other with such documents and other records as may be paid or turned over reasonably requested in order to Purchaser confirm all Rental, if any, received by Seller after Closing adjustment and attributable proration calculations made pursuant to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertythis Section 3.4.
Appears in 2 contracts
Sources: Nuclear Generation Conveyance Agreement (Duquesne Light Co), Nuclear Generation Conveyance Agreement (Dqe Inc)
Prorations. (a) Seller The Purchase Price for the Property shall be subject to prorations and Purchaser agree credits as follows to adjust, be determined as of 11:59 p.m. 12:01 a.m. on the day preceding Closing Date:
1. Rents Payable Under Tenant Leases. Any portion of any rents collected subsequent to the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required properly allocable to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days periods prior to the Closing Date, and a per diem adjustment net of Purchaser's third-party costs of collection, if any, shall be made for paid, promptly after receipt, to 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 Seller, but subject 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 all of the tax rate for the preceding year applied provisions of this Section; and any portion thereof properly allocable to the latest assessed valuation. If, periods 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 apportionedif any, a new computation shall be made, paid to Purchaser. Any amount collected from a tenant shall first be applied to such tenant's current monthly rental and Seller agrees then to pay Purchaser any increase shown past due amounts in the reverse order in which they were due. Any advance rental payments or deposits paid by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser tenants prior to the Closing Date and applicable to the periods of time subsequent to the Closing Date and any security deposits or other amounts paid by tenants, together with any interest on both thereof to the extent such interest is due to tenants, shall be credited to Purchaser on the Closing Date. No credit shall be given the Seller for accrued and unpaid rent or any other non-current sums due from tenants until said sums are paid.
2. Motel Room, Restaurant and Bar Revenues. Purchaser shall be entitled to all food service, bar, beverage and liquor revenues and charges and all revenues and charges from restaurant operations, Motel banquet and conference facility operations, and all other revenue of any kind attributable to any of the same for the period on and after 12:01 a.m. on the Closing Date. Purchaser shall pay over to Seller all collections of accounts receivable in connection with the Properties which have accrued as of Closing (the "CLOSING STATEMENTClosing Accounts Receivable"). The By no later than sixty (60) days after Closing, Purchaser shall pay to Seller an amount equal to the remaining Closing StatementAccounts Receivable, once minus those uncollectible Closing Accounts Receivable as agreed upon, shall be signed upon by Purchaser and Seller. The proration Seller shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller deliver to Purchaser (if the prorations result in or provide Purchaser a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of against the Purchase Price at for the Closing. If Properties in an amount equal to all guest reservation deposits held by the actual amounts of Motels for Motel guests arriving or staying after check-out time for the Proration Items are not known as of Motel on the Closing Date, the prorations will be made at Closing on the basis . All collections of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for Motel receivables from any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller party after Closing shall be applied first to receivables due from such party which have accrued prior to Closing and attributable second to any period receivables due from and such party which have accrued after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyClosing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Super 8 Motels LTD), Purchase and Sale Agreement (Super 8 Motels LTD)
Prorations. (a) 5.4.1 The following shall be prorated between Seller and Purchaser agree to adjust, as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (on the "PRORATION TIME"basis of the actual number of days elapsed over the applicable period regardless when payable):
(a) All real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges if, as and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date) to Purchaser on the Closing Date. As to any tenant security deposits held in the form of letters of credit or other financial instruments (the “Non-Cash Security Deposits”), Seller shall (i) deliver to Purchaser at Closing such original Non-Cash Security Deposits, and (ii) execute and deliver at Closing such other instruments as the issuer of such Non-Cash Security Deposits shall reasonably require in order to cause the named beneficiary under such Non-Cash Security Deposits to be changed to Purchaser; provided that such instruments do not impose any liability on Seller. Purchaser will not receive a credit against the Purchase Price for the Non-Cash Security Deposits. Rents which are delinquent as of the Closing Date shall not be prorated on the Closing Date. Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent Purchaser receives rents on or after the Closing Date, such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents that shall then be due and payable to Purchaser, and third to any delinquent rents owed to Seller, with Seller’s share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser. Purchaser may not waive any delinquent rents nor modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent, which consent may be given or withheld in Seller’s sole and absolute discretion. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant; provided, however, that Seller shall not be entitled to exercise such right until the expiration of the six (6) month period following the Closing. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall ▇▇▇▇ and attempt to collect such delinquent rent in the ordinary course of business, but shall not be obligated to engage a collection agency or take legal action to collect any delinquencies. With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Closing Date, Seller shall retain all rights relating thereto. Any rents received by Seller applicable to the period after the Closing shall be promptly remitted to Purchaser.
(c) If any tenant of the Property is obligated to pay percentage rent based upon the calendar year or lease year in which the Closing Date occurs (the “Percentage Rent Year”), Purchaser shall, within thirty (30) days after receipt of such payment with respect to the Percentage Rent Year, remit to Seller that portion which is equal to the number of days which elapsed between the commencement date of the Percentage Rent Year for each such tenant and the Closing Date, divided by the total number of days in such Percentage Rent Year. If Seller has received payments of percentage rent based on any Percentage Rent Year in which the date of Closing occurs, in excess of Seller’s share as calculated as set forth above in this Section 5.4.1(c), it shall promptly pay such excess to Purchaser. In the event that the Leases require the reconciliation of additional rent “pass-throughs” to the landlord for common area maintenance charges, real estate taxes or other operating expenses (collectively, the "PRORATION ITEMS"):
(i) Rentals“Expenses”), Purchaser shall perform all of the obligations of the landlord under the Leases with respect to such reconciliations for the year of Closing as and when required by the terms of the Leases and provide Seller with the results of such reconciliations no later March 31st of the calendar year succeeding the Closing Date. If such results reflect the underpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall ▇▇▇▇ the appropriate amounts to such tenants in accordance with the terms of their leases and remit to Seller its prorata share of the amount collected from the tenants within thirty (30) days of Purchaser’s collection of the same. If such results reflect the overpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall deliver to Seller an invoice from Purchaser together with evidence reasonably satisfactory to Seller indicating that such sums are due to such tenants. Seller shall pay Purchaser Seller’s prorata share of the amounts due to such tenants within thirty (30) days of Purchaser’s demand, provided that Seller shall have no obligation to reimburse Purchaser for any sums not invoiced on or before July 1st of the calendar year succeeding the Closing Date. Notwithstanding the foregoing, if, as of the Closing, Seller has received additional rent payments in excess of the amount that the tenants would be required to pay, based on the actual Expenses as of the Closing, Purchaser shall receive a credit in the amount of such excess. The provisions of this Section 10.4(b5.4.2(c) belowshall survive the Closing.
(iid) Cash Security Deposits All operating expenses customarily apportioned between sellers and any prepaid rents, together with interest required purchasers of real estate properties similar to be paid thereonthe Property and located in the same geographic area as the Property.
(iiie) Utility charges payable by SellerCharges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the Assignment and Assumption of Contracts.
(f) Any prepaid items, including, without limitation, electricityfees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees.
(g) Utilities, water charges including, without limitation, telephone, steam, electricity and sewer charges. If there are meters gas, on the Real basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings.
(h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assignable and are assigned to Purchaser at the Closing, which shall be credited in their entirety to Seller.
(i) Personal property taxes, if any, on the basis of the fiscal year for which assessed.
(j) Permitted administrative charges, if any, on those tenants’ security deposits transferred by Seller pursuant to the Assignment and Assumption of Leases.
(k) Taxes payable by Seller relating to operations of the Property, Seller will cause readings including, without limitation, business and occupancy taxes and sales taxes, if any.
(l) Such other items as are customarily apportioned between sellers and purchasers of all said meters real properties of a type similar to the Property and located in the same geographic area as the Property subject to Section 7.2.3(a) hereof.
(a) Intentionally deleted.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be performed not more than five apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that (5i) days prior with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one hundred eightieth (180th) day after the Closing Date and (ii) with respect to the items required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one (1) year anniversary of the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before a real estate or personal property tax rate or assessment is fixed for the tax rate is fixedyear in which the Closing occurs, the apportionment of real estate taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. If, subsequent to Promptly after the Closing Date, real estate taxes (by reason of change in either assessment or new tax rate or for any other reason) for assessment is fixed, the Real Property and Improvements should be determined to be higher apportionment of taxes or lower than those that are apportioned, a new computation assessments shall be made, recomputed and Seller agrees to pay Purchaser any increase shown by discrepancy resulting from such recomputation and vice versa. Purchaser shallany errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing.
5.4.3 Items to be prorated at Closing, assume all the Closing shall include a credit to Seller for costs and expenses incurred or to be incurred by Seller in connection with any real estate tax appeals that new Leases or modifications to any existing Leases entered into after the date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of this Agreement, but only to the extent such costs and expenses are pending approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) or disclosed to Purchaser in writing or in the proposed lease at least three (3) Business Days prior to the time of Closingdate hereof. Seller will shall be charged responsible for all brokerage and credited leasing commissions and tenant improvement costs for the amounts initial term of all of the Proration Items relating Leases entered into prior to the period up date of this Agreement and for any extension, renewal or expansion of any such Lease exercised prior to the Proration Timedate of this Agreement, provided in all such instances, the term of such Lease, extension, renewal or expansion and Purchaser will be charged and credited for all the regularly scheduled payment of the Proration Items relating rent commences prior to the period date of this Agreement (collectively, “Seller Leasing Costs”). Purchaser shall be responsible for and expressly assumes the obligation to pay all brokerage and leasing commissions, tenant improvement costs and other costs and expenses including attorney’s fees other than the Seller Leasing Costs for any new leases entered into from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement date of this Agreement and any extension, renewal or expansion of any existing Lease exercised or entered into from and after the date of this Agreement including, without limitation amounts owed under the Brokerage Agreements, provided in all such instances, the term of such Lease, extension, or expansion or the regularly scheduled payment of rent commences from and after the date of this Agreement, provided such new leases or extensions or expansions are approved or deemed approved by Purchaser pursuant to be prepared by Seller Section 7.2.3(a) of this Agreement and submitted provided such brokerage and leasing commissions, tenant improvement costs and other costs are disclosed to Purchaser prior in writing, in the applicable lease or other agreement delivered to Purchaser at the time Purchaser approves (or is deemed to have approved) such new leases, or any such Lease extensions, renewals or expansions (collectively, “Purchaser Leasing Costs”). If at the Closing Date (the "CLOSING STATEMENT"). The Closing StatementSeller has paid any Purchaser Leasing Costs, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net at the Closing shall include an appropriate credit to Seller) or by . If at the Closing there remain unpaid Seller Leasing Costs, Purchaser shall expressly assume the responsibility to Purchaser (if pay such unpaid Seller Leasing Costs, and the prorations result in a net at the Closing shall include an appropriate credit to Purchaser.
5.4.4 As provided in Section 11.1.2, Seller shall be responsible for paying all fees, costs or commissions owing to the Broker (as defined in Section 11.1.2) with regard to the transactions contemplated by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. this Agreement.
5.4.5 The provisions of this Section 10.4(a) will 5.4 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits “Proration Items”): real estate and any prepaid rents, together with interest personal property taxes and assessments which are required to be paid thereon.
during the calendar year in which the Closing occurs (iiion a cash basis so that such proration pursuant to this Section 10.4(a) Utility charges shall be with respect to the taxes payable in the year in which the Closing occurs and not the taxes which are attributable to such year but payable the following year), utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (c) below), and operating expenses payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis owner of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of ClosingProperty. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld, delayed or conditioned) prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, or if errors in prorations are discovered, 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 premiums (except to Purchaserthe extent covered by the proration of Operating Expenses). Final readings and final ▇b▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expenses). 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 A final reconciliation of this Section 10.4(aProration Items shall be made by Purchaser and Seller within fifteen (15) will survive days after the first anniversary of the Closing for twelve (12) monthsDate.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Closing Time) of all Rental Rentals previously paid to or and collected by Seller and attributable to any period from and after following the Proration Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all RentalRentals, if any, received by Seller after Closing and attributable for distribution pursuant to any period from and after the Proration Timethis Section. "RENTAL" “Rentals” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration ’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to Seller or its successor by Tenants under the Tenant Leases or from other occupants or users of the
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. (a) All real property ad valorem taxes, personal property taxes, special taxes and assessments shall be prorated (employing a 365-day year) between Purchaser and Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (as defined below) based upon the "PRORATION TIME")current property assessment. If such assessment is not available for the year in question, such taxes and assessments shall be prorated at Closing based on the following (collectively, previous year’s tax bill and promptly reprorated when the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowamount thereof can be ascertained.
(iib) Cash Security Deposits and any prepaid rentsAll expenses, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, including without limitation, electricity, water utility fees and deposits and all maintenance charges and sewer charges. If there are meters on the Real Propertypayments under existing recorded reciprocal easements/servitudes agreements and/or similar agreements, Seller will cause readings of all said meters to be performed not more than five (5) days prior with respect to the Closing Date, and a per diem adjustment Property shall be made for the days allocated between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date. Seller shall be responsible for all such expenses for the period of time up to but not including the Closing Date, except for any such expenses incurred by or at the prorations will direction of Purchaser in connection with Purchaser’s inspection of the Property, all of which expenses incurred by or at the direction of Purchaser shall be paid by Purchaser. Purchaser shall be responsible for all such expenses for the period of time from, after, and including the Closing Date. If accurate allocations cannot be made at Closing because current bills are not then available (for example, as in the case of utility bills), the parties shall allocate such expenses at Closing on the basis best available information, subject to prompt adjustment upon receipt of the best final bill or other evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figuresapplicable income or expense.
(c) All prorations and allocations made pursuant to this Section 4 shall be determined by allocating the tax, assessment or other expense on a per acre basis.
(d) If any errors or omissions are made regarding adjustments and a final cash settlement will be made between Seller and Purchaserprorations pursuant to this Section 4, the parties shall make the appropriate corrections promptly upon the discovery thereof. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be If any estimates are made at the Closing with respect regarding adjustments or prorations, the parties shall make the appropriate correction promptly when accurate information becomes available. Any corrected adjustment or proration shall be paid in cash to utility bills. Seller will be the party entitled thereto.
(e) All obligations to all deposits presently adjust prorations set forth 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 4 shall survive the Closing of the transaction for twelve a period of nine (129) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement
Prorations. (a) Seller Rentals, revenues, and Purchaser agree to adjustother income, if any, from the Property, taxes, assessments, improvement bonds, service or other contract fees, equity costs, and other expenses affecting the Property shall be prorated between Transferee and Transferor as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on a 365 day year. For purposes of calculating prorations, Transferee shall be deemed to be title holder of the most recent meter reading.
(iv) Amounts payable under Property, and therefore entitled to the Spectrasite Agreements income and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable responsible for the calendar yearexpenses, after 12:01 a.m. on the Closing Date. If Delinquent rentals as of the Closing Date shall occur before the tax rate is fixednot be prorated, the apportionment of real estate taxes but when paid to Transferee shall be upon delivered by Transferee to Transferor, less the basis costs and expenses incurred by Transferee in collecting the same (provided that all current rent has then been paid with respect to such Leases). After the Closing, Transferor shall have no right to proceed in any manner or make any claim against any Tenants for rents that were delinquent as of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, except to the extent that any such person no longer occupies any portion of the Property. All non-delinquent real estate taxes (or assessments on the Property shall be prorated based on the actual current tax ▇▇▇▇, but if such tax ▇▇▇▇ has not yet been received by reason of change in either assessment Transferor by the Closing Date or rate or for any other reason) if supplemental taxes are assessed after the Closing for the Real Property and Improvements should be determined period prior 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 the Closing, assume 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 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 property taxes, including all of the Proration Items relating supplemental taxes, allocable to the period up prior to the Proration TimeClosing and Transferee shall bear all real property taxes, and Purchaser will be charged and credited for including all of the Proration Items relating supplemental taxes, allocable to the period from and after the Proration TimeClosing. The estimated Closing prorations shall be set forth on a preliminary closing statement If any expenses attributable to be prepared by Seller the Property and submitted allocable to Purchaser the period prior to the Closing Date (are discovered or billed after the "CLOSING STATEMENT"). The Closing StatementClosing, once agreed upon, the parties shall be signed by Purchaser and Seller. The proration shall be paid at make any necessary adjustment after the Closing by Purchaser cash payment to Seller (if the prorations result in a net credit party entitled thereto so that Transferor shall have borne all expenses allocable to Seller) or by Seller the period prior to Purchaser (if the prorations result in a net credit Closing and Transferee shall bear all expenses allocable to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at period from and after the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will 5.5 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Acquisition and Contribution Agreement (Apartment Investment & Management Co)
Prorations. (a) Rents, including, without limitation, percentage rents, if any, and any additional charges and expenses payable by tenants under Leases, all as and when actually collected (except for tenant CAM Charges (as such term is defined below), which will be prorated at Closing based on estimates of the same, all in accordance with the provisions of Section 8.5(b) below); real property taxes and assessments; 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); and any other expenses of the operation and maintenance of the Property, but specifically excluding the cost of insurance, (including, without limitation, expenses prepaid by Seller and Purchaser agree expenses already paid by Seller but which are being amortized over time by Seller and with respect to adjustwhich Seller shall receive a credit at Closing in the amount of the prepaid or unamortized portion thereof), shall all be prorated as of 11:59 p.m. on the day preceding immediately prior to Closing (i.e., Buyer is entitled to the Closing Date (income and responsible for the "PRORATION TIME"expenses of the day of Closing), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time365-day year. The preliminary estimated Closing prorations contemplated by this Section 8.5(a) shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior Buyer for review and approval on or before September 26, 2006. Buyer and its representatives shall be afforded reasonable access to Seller’s books and records with respect to back-up evidence and Seller’s work papers pertaining to such preliminary prorations to confirm the Closing Date (the "CLOSING STATEMENT")accuracy thereof. The Closing StatementSuch prorations, once agreed uponupon by Buyer and Seller, shall be signed by Purchaser and Sellerdelivered to the Title Company for purposes of making the preliminary proration adjustments at Closing, subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser Buyer (if the preliminary prorations result in a net credit to PurchaserBuyer) by increasing or reducing the cash to be delivered by Purchaser Buyer in payment of the Purchase Price at the Closing. Additionally, 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. Buyer shall be entitled the credits due Buyer from Seller, if any, as expressly set forth in Section 7.2. All rents collected after the Closing shall be applied and paid as provided in this Section 8.5(a). 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. 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. Buyer shall use reasonable efforts to collect such rents and other sums owing to Seller.
(b) On or before the Closing, Seller will prepare an estimate, as of the Closing, of the amounts of all taxes, insurance charges and other expenses owed by tenants under the Leases (collectively “CAM Charges”), as specified in the Leases (collectively, “Operating Expense Recoveries”) for the portion of calendar year 2006 during which Seller owned the Property (the “2006 Partial Year”). If the actual amounts collected by Seller from tenants for Operating Expense Recoveries for the 2006 Partial Year are less than the amounts that would have been owed by tenants under the tenant Leases for such items based on Seller’s estimate, Buyer will pay such difference to Seller at Closing. If the amounts collected by Seller from tenants for Operating Expense Recoveries for the 2006 Partial Year are greater than the amounts that would have been owed by tenants under the tenant Leases for such items based on Seller’s estimate, Seller will pay to Buyer at Closing such difference. A final reconciliation of the Proration Items are CAM Charges and Operating Expense Recoveries for the 2006 Partial Year shall be prepared by Seller, and delivered to Buyer, on or before December 31, 2006, in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(b). Thereafter, Buyer shall have ten (10) business days to reasonably approve of or object to, in writing, such reconciliation. In the event that Buyer does not object in writing to Seller within such time period, the reconciliation shall be deemed final and approved by Buyer. When the reconciliation is reasonably approved by Buyer or is deemed approved by Buyer pursuant to this Section, the party owing the other party a sum of money based on such reconciliation shall pay said sum of money to the other party. With respect to any audit of any CAM Charges applicable to any period of time from and after the Closing billed to Health Net, Buyer agrees to indemnify, hold harmless and defend Seller from and against any and all amounts owing as a result of said Health Net Cam Charges audit. With respect to any audit of any CAM Charges applicable to calendar-year 2005 which were billed to Health Net (a “2005 Health Net CAM Audit”), Seller agrees to indemnify, hold harmless and defend Buyer from and against any and all amounts owed to Health Net as a result of said 2005 Health Net CAM Audit (collectively, “Audit Claims”), provided, however, that the indemnity described in this sentence shall survive only for the period of time that Health Net has the right to conduct a 2005 Health Net CAM Audit pursuant to the express provisions of the Health Net Lease of the Property, provided, however, that if a 2005 Health Net CAM Audit has been commenced within such allotted time period, such indemnity shall survive until such 2005 Health Net CAM Audit has been resolved (the “Audit Survival Period”). Any such Audit Claim which Buyer may have at any time against Seller, whether known or unknown, which is not specifically asserted by written notice to Seller within such time period shall not be valid or effective, and neither Seller nor any Seller Related Parties shall have any liability with respect thereto. In connection with any 2005 Health Net CAM Audit, Seller and Buyer shall each have the right to participate in any such audit, and each such party shall cooperate with the other in connection therewith. The amount of any cash security deposits held by Seller under Leases shall be credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits). Seller shall receive credits at Closing for the amount of any utility or other similar deposits with respect to the Property and to the extent practical, shall pay to the applicable utility providers all utility charges payable with respect to the Property for the period prior to Closing. Buyer shall cause all utilities to be transferred into Buyer’s name and account at the time of Closing. 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 received from tenants, which have not been collected as of the Closing Date, then the prorations will same shall be made calculated as soon as reasonably practicable (except that the CAM Charges and Operating Expense Recoveries shall be calculated within the timeframes described above) but in any event within sixty (60) days after the Closing Date or the date that such amounts have been collected by either party, 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. Notwithstanding the foregoing, in the event that either party collects rent or other charges from tenants that were not collected at Closing, such party owing the other party a sum of money with respect to such rent or other charges from tenants, shall use commercially reasonable efforts to pay said sum to the other party within five (5) business days after receipt of such sum. Any amounts not paid within ten (10) days after receipt of such sum 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 from and after Closing on and to the basis manner in which such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice.
(c) If the Closing occurs, Seller shall pay (i) the title insurance premium for the CLTA portion of the best evidence then available; thereafterTitle Policy, when actual figures are received(ii) any costs incurred in recording the Deed or any other instruments with respect to the transfer contemplated herein, re-prorations will be made on and (iii) all costs to satisfy, release and discharge any Seller’s Liens. If the basis Closing occurs, Buyer shall pay (i) the costs of extended coverage and any endorsements to the Owner’s Policy, (ii) the costs, if any, to obtain the updated Survey or a new survey, (iii) all state, county and city transfer taxes, if any, payable in connection with the consummation of the actual figuressale of the Property to Buyer as contemplated herein, and a final cash settlement will (iv) all fees, costs, or expenses in connection with Buyer’s due diligence reviews hereunder. Any other closing costs shall be made allocated in accordance with local custom as determined by the Title Company. Any escrow fees shall be split equally between Seller and PurchaserBuyer. No prorations The parties will execute and deliver any required transfer or other similar tax declarations to the appropriate governmental entity at Closing.
(d) Any percentage rent for the rental periods including Closing shall be made in relation to insurance premiumsprorated upon receipt, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ based upon the tenant’s sales for utilities will be made if possible as the portion of the Closing Date, in which event no proration will be made at lease year allocable to Seller’s and Buyer’s respective ownership of the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. Property.
(e) The provisions of this Section 10.4(a) will 8.5 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Hines Real Estate Investment Trust Inc)
Prorations. (a) Seller and Purchaser agree to adjust, The following shall all be prorated as of 11:59 p.m. 12:01 a.m. on the date of Closing, on the basis of a 365-day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
year: (i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Sellerand all other income from the Property, if any, including, without limitation, electricity, water any additional charges and sewer charges. If there are meters on expenses payable under the Real PropertyLeases, Seller will cause readings of if any, all said meters to be performed not more than five as and when actually collected (5) days whether such collection occurs prior to to, on, or after the Closing Date, ); (ii) real property taxes and a per diem adjustment shall be made assessments for the days between the meter reading date and year in which the Closing Date based on the most recent meter reading.
occurs, (iii) water, sewer and utility charges, (iv) Amounts payable under the Spectrasite Agreements and amounts payable under any service contracts Buyer assumes at Closing for the Service Contracts other than those Service Contracts month in which Purchaser has elected not to assume.
the Closing occurs and prior months, (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 annual permits (to the latest assessed valuation. If, subsequent extent same are assigned 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, Buyer at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date ) and/or inspection fees (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing calculated on the basis of the best evidence then available; thereafterperiod covered), when actual figures are received, re-prorations will be made on and (vi) any other expenses relating to the basis operation and maintenance of the actual figuresProperty. Buyer shall include all rent arrearages, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumsif any, and Selleron Buyer's insurance policies will not be assigned to Purchaser. Final readings and final monthly invoices or ▇▇▇▇▇▇▇▇ 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 utilities will periods after Closing shall be made 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 possible as 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, in which event no proration will then the same shall be made at calculated within thirty (30) days after the Closing with respect Date, or as soon as sufficient information is available to utility billspermit the parties to accurately calculate such proration(s), and either party owing the other 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 will shall be entitled responsible for payment in full of all real estate taxes and assessments for years prior to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on Seller shall pay the premium for the Title Policy 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 Statement for the and not previously prorated amount (in escrow shall be divided as of the Proration Time) of all Rental previously paid to or collected by Seller provided herein, and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to shall be paid or turned over to Purchaser promptly upon receipt of a ▇▇▇▇ therefor, and any and all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance other costs and expenses as provided for under the Lease, relating to the extent purchase and sale transaction contemplated hereby shall be paid by the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyparty incurring same.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Homes for America Holdings Inc)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser 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; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited or debited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the tax rate for most recent ascertainable data, other than real estate taxes, which shall be prorated on the preceding year applied basis of 105% of the aggregate 1995 real estate taxes. Additionally, Purchaser shall receive a credit of $35,000.00 as "rent concessions" at Closing. All prorations will be final except as to the latest assessed valuationdelinquent rent referred to in Paragraph 12.2 below.
12.2. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, any rent is in arrears for the prorations will period prior to the calendar month when the Closing occurs, then the first rent collected by Purchaser shall be made at Closing applied to current rents and then towards subsequent delinquent rent. If on the basis of Closing Date rent is in arrears only for the best evidence calendar month when the Closing occurs, then available; thereafter, when actual figures are received, re-prorations will the first rent collected by Purchaser shall be made on the basis of the actual figures, and a final cash settlement will be made apportioned between Seller and Purchaser. No prorations will Any amounts due to Seller shall be made in relation paid by Purchaser to insurance premiums, and Seller's insurance policies will not be assigned Seller within 10 days of receipt of such amounts. Any amounts collected by Purchaser pursuant to Purchaserthis Paragraph are hereinafter collectively referred to as the "Post Closing Receipts". Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing with respect Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to utility bills. Seller will be entitled any Post-Closing Receipts owing to all deposits presently Seller and not previously delivered to Seller in effect accordance with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providersterms hereof. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. (a) As applicable, general real estate taxes, assessments, homeowner's association dues, condominium association dues, condominium fees, utility payments and other items that are customarily prorated shall be prorated with respect to the Properties at the Closing. In the event that final bills (including but not limited to real estate tax bills) are not available or cannot be issued prior to Closing for any item being prorated then Purchaser and Seller and Purchaser agree to adjustallocate 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 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) belowwritten notice.
(iib) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereonAll prorations are final unless otherwise indicated in this Agreement.
(iiic) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before amount of the tax rate is fixed, the apportionment of current real estate taxes and assessments for the Properties is not ascertainable at the time of closing, said taxes and assessments shall be upon prorated on the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, 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 (by reason of change in either assessment or rate or for any other reasona) taxes and assessments attributable to Property shall be based upon an amount equal to the most recent ascertainable taxes and assessments for the Real tax parcel of which such Property and Improvements should be determined to be higher or lower than those that are apportioned, is a new computation part multiplied by a fraction the denominator of which shall be madethe total number of square feet in the tax parcel of which such Exercised Lot is a part and the numerator of which shall be the number of square feet in such Property, and Seller agrees to pay Purchaser any increase shown by (b) said taxes and assessments shall be reprorated when the actual separate bills for such recomputation and vice versa. Purchaser shallProperty shall be issued.
(d) If, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on Property is not being treated as a separate tax parcel, then, within thirty days after Closing, the basis of parties shall file the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on necessary petitions and applications to have the basis of the actual figures, and Property assessed as a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsseparate tax parcel.
(be) Purchaser will receive a credit on the Closing Statement for the prorated amount The obligations set forth in this subparagraph (as of the Proration TimeE) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After shall survive the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Heartland Partners L P)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”): real estate and personal property taxes and assessments for the year in which Closing occurs, periodic fees or assessments under declarations, reciprocal easement agreements or similar agreements to which the Property is subject, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with amounts payable or paid under any Service Contracts assumed by Purchaser, collected Rentals (subject to the terms of Section 10.4(b) below.
(ii) Cash Security Deposits accrued interest under the Mortgage Loan and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges operating expenses payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters the owner of the Property (on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. Ifa 365 day year, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closingactual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld, delayed or conditioned) at least two (2) Business Days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event (that is, as to any utility account, if such a final billing as of the Closing Time is then available) no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providersproviders (and if so requested in writing by Purchaser, Seller will provide reasonable and good faith assistance to Purchaser in establishing new utility accounts, at no cost or liability to Seller). A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before the later of twenty (20) days after Closing and March 15, 2015 (the "Final Reconciliation Date"); provided that such reconciliation, as it relates to real estate taxes, shall be made within thirty (30) days following the issuance of the tax bills for each Real Property. The provisions of this Section 10.4(a10.4 (excluding subsection (e) which is governed by Section 3.2 above), will survive the Closing until the Final Reconciliation Date (and such period reasonably necessary thereafter for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause payment owing under this sentence to be paid made), and in the event any items subject to proration hereunder are discovered on or turned over before the Final Reconciliation Date to Purchaser all Rentalbe in error so as to result in a monetary adjustment of greater than $500, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified shall be promptly prorated by the parties in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyaccordance with the terms of this Section 10.4.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser 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 day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence most recent ascertainable data. If the amount of current real estate or personal property taxes is not then available; thereafterascertainable, when actual figures are received, re-prorations will the adjustment thereof shall be made on the basis of 105% of the actual figures, and a final cash settlement will be made between Seller and Purchasermost recent ascertainable tax bill(s). No All prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ al except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All rents collected by Purchaser shall first be applied to current rent due from the applicable tenant and then to any rent in arrears for utilities will be made if possible as said tenant at Closing ("Delinquent Rent"). Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Delinquent Rents hereunder to Seller. 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 Closing DateDelinquent Rents reconciliation statement and upon the verification of additional funds owing to Seller, in which event no proration will be made at Purchaser shall pay to Seller said additional Delinquent Rents and the Closing with respect to utility billscost of performing Seller's audit. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Properties LTD-Viii)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with Section 10.4(bcollected Rentals (subject to the terms of (b) below.
(ii) Cash Security Deposits ), expenses under the Permitted Exceptions, and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges expenses under Service Contracts assumed by Purchaser at Closing payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters the owner of the Property (on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. Ifa 365 day year, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closingactual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) Business Days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before November 30, 2016 (herein, the “Final Proration Date”). The provisions of this Section 10.4(a) 10.4 will survive the Closing until the Final Proration Date has occurred, and in the event any items subject to proration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4. Notwithstanding anything to the contrary provided in this Agreement including, but not limited to, this Section 10.4(a), Seller and Purchaser hereby agree to use the following, estimated 2016 real estate taxes and assessments for twelve purposes of the proration of same at Closing: (12x) months$1,452,200.00 for the Champions Village Real Property and the Champions Village Improvements and (y) $178,200.00 for the Oak Park Real Property and the Oak Park Improvements.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Closing Time) of all Rental Rentals previously paid to or and collected by Seller and attributable to any period from and after following the Proration Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all RentalRentals, if any, received by Seller after Closing and properly attributable to any period from and after following the Proration Closing Time. "RENTAL" as used herein “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include each such Tenant's proration ’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to the landlord under the Tenant Lease or from other occupants or users of the Property, excluding specific tenant ▇▇▇▇▇▇▇▇ which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. For a period of three (3) months after Closing, Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to incur legal fees or other out-of-pocket expenses, conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. Purchaser shall have the exclusive right to collect Delinquent Rentals from current Tenants of the Property and Seller hereby relinquishes its rights to pursue claims against any Tenant or guarantor under any Tenant Leases for same. Nothing herein shall prohibit Seller from pursuing Delinquent Rentals from former tenants of the Property. With respect to any Delinquent Rentals received by Purchaser within one (1) year after Closing (the “Delinquent Rental Proration Period”), Purchaser shall pay to Seller any rent or payment actually collected during the Delinquent Rental Proration Period properly attributable to the period prior to the Closing Time. All sums collected by Purchaser during the Delinquent Rental Proration Period, from such Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, all of which shall be payable to and belong to Seller in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such Tenant to Purchaser (including 34 Delinquent Rentals attributable to the period after the Closing Time), then any collection costs of Purchaser related to such Tenant, and then to prior delinquencies owed by Tenant to Seller. Seller shall not be entitled to institute legal actions to pursue Delinquent Rental after Closing. Any sums collected by Purchaser and due Seller will be promptly remitted to Seller, and any sums collected by Seller and due Purchaser will be promptly remitted to Purchaser.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Preferred Apartment Communities Inc)
Prorations. All revenues, income, receiv ables, costs, ex▇▇▇▇▇s and payables of the Property shall be apportioned equitably between the parties as of Closing on the basis of the actual number of days in a particular month, and with respect to the items enumerated below where a particular manner of apportionment is provided, then apportionment of such item shall be made in such manner. The obligation to make apportionments shall survive Closing. Without limitation, the following items shall be so apportioned:
(ai) Seller Monthly rents and Purchaser agree to adjustpercentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as of 11:59 p.m. on and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the day preceding collection thereof in good faith after the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest but Purchaser shall not be required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer chargeslitigate or declare a default in any Tenant Lease). If there are meters To the extent Purchaser receives amounts on the Real Property, Seller will cause readings account of all said meters to be performed not more than five (5) days prior to Tenant Leases on or after the Closing Date, and a per diem adjustment such payments shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which applied first toward then current rent owed to Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with the applicable Tenant Lease for which such payments are received, and any real estate tax appeals that are pending at excess monies received shall be applied toward the time payment of Closingany delinquent rents, with Seller's share thereof being promptly delivered to Seller. Purchaser may not waive any delinquent rents nor modify a Tenant Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive its share of charges or amounts without first obtaining Seller's written consent. Seller will hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be charged require to litigate or declare a default in any Lease). With respect to delinquent rents and credited for the any other amounts or other rights of all any kind respecting tenants who are no longer tenants of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Property as of the Closing Date, Seller shall retain all rights relating thereto.
(ii) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the prorations will earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Seller and Purchaser if current tax rates differ from the latest previous tax rates as soon as the same are known. Seller agrees that to the extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, the Seller or the Purchaser at any time subsequent to Closing but with reference to any period prior thereto during Seller's ownership thereof, Seller shall promptly pay to Purchaser an amount equal to such additional assessments or levies. Similarly, if tax refunds become payable for periods during Seller's ownership of the Property, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Seller) shall be promptly paid over to Seller. In the event that any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installment due after the Closing Date). In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made at or lease entered into on or after the Closing Date.
(iii) Transferable annual permits, licenses, and/or inspection fees, if any, on the basis of the best evidence then available; thereafterduration of the same;
(iv) Security Deposits, when actual figures are receivedplus accrued interest, re-prorations will if any, payable thereon to tenants, and any other deposits and prepaid rent, shall be made credited (or assigned) to Purchaser;
(v) Utility charges levied against Seller or the Property, and Purchaser shall transfer all such utility services to its name and account immediately upon Closing;
(vi) Service Contracts on the basis of the actual figurescharge or premium for the period involved;
(vii) Tenant improvements costs and leasing commis sions for leases signed after the June 2, 1997 shall be paid by Purchaser if approved by Purchaser in accordance with Paragraphs 7(a) and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months7(b).
(bviii) Purchaser will receive a credit on All other operating expenses incurred in the Closing Statement for the prorated amount (as management and operation of the Proration Time) Property. No insurance policies shall be assigned hereunder, and accordingly there shall be no proration of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyinsurance premiums.
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree to adjust, The following shall be prorated as of 11:59 11.59 p.m. CST on the day immediately preceding the Closing Date and be adjusted against the Purchase Price due at Closing: (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(ia) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits rents and any prepaid rentsother amounts actually collected from tenants and other persons using or occupying the Property as of the Closing Date; (b) utility charges including sewer charges (utility charges shall be prorated based on the last reading of meters prior to Closing performed at Seller’s request, if possible) and normally prorated operating expenses for the month of Closing that are actually paid as of the Closing Date subject however to Section 6.5 below with respect to ratio utility billing systems (RUBS); and (c) amounts owed by Seller or paid for the month of Closing under the Contracts described in Section 3.3 hereof as of the Closing Date (on the basis of the fiscal year or billing period of the person levying or charging for the same). Leasing commissions or finder’s fees (if any) shall be paid in full by Seller for each lease entered into after the Effective Date and prior to Closing. Within sixty (60) days after the Closing, Purchaser and Seller will make a further adjustment based upon the above proration provisions for such rents collected or charges paid which accrued or were incurred prior to the Closing Date, but not billed or paid at that date, including any bills that were not available as of the Closing Date but relate to. expenses incurred prior to the Closing Date and thereafter paid. Except as otherwise stated in this Agreement, all prorations shall be made on a 365-day calendar year basis, based on the actual number of days in the applicable month. The terms of this Section 6.3 shall survive Closing as necessary to accommodate the post-Closing adjustments contemplated herein. Seller and Purchaser shall endeavor to cause the Title Company to prepare draft closing statements containing the prorations and adjustments described in this Section 6 and deliver the same together with interest required to be paid thereon.
invoices or bills for all prorated expenses and other reasonable backup information from Seller no later than 3:00 p.m. CST two (iii2) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) business days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Resource Apartment REIT III, Inc.)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by SellerRents, including, without limitation, electricitypercentage rents, water if any, and any additional charges and sewer charges. If there are meters expenses payable under tenant leases, all as and when actually collected (whether such collection occurs prior to, on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to or after the Closing Date); real property taxes and assessments; water, sewer and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and utility charges; amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
any service contracts; annual permits and/or inspection fees (v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon calculated on the basis of the tax rate for period covered); and any other expenses of the preceding year applied operation and maintenance of the Property (including, without limitation, those expenses listed on SCHEDULE 5 attached hereto already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the unamortized portion thereof), together with tenant improvement costs, leasing commissions, as provided in Section 7.2 above, shall all be prorated as of 12:01 a.m. on the date the Deed is recorded, on the basis of a 365-day year. Any sums collected by Buyer from tenants after the Closing shall be promptly paid to Seller to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason extent of change in either assessment or rate or for any rents and other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, sums which were delinquent at Closing, assume after first applying all expenses incurred such amounts collected to current obligations. Buyer shall use reasonable efforts to collect such delinquent rents but shall not be obligated to expend any sums, commence any litigation, terminate any lease or threaten to terminate any lease to do so. Seller retains the rights to collect any such delinquent rents from tenants after Closing provided that Seller shall not commence any legal or equitable proceedings in the nature of an unlawful detainer, eviction or other proceeding which would have the effect of interfering with any tenant's quiet enjoyment of its leased premises or result in a lien or encumbrance on such leased premises. The amount of any security deposits under tenant leases shall be credited against the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property, in which case all such deposits for which Seller receives credit shall remain in place for the benefit of Buyer and Seller shall execute and deliver such documents as shall be necessary to assign such deposits to Buyer. Buyer shall cause all utilities to be incurred in connection with any real estate tax appeals that are pending transferred into Buyer's name and account at the time of Closing. Seller will be charged and credited for the amounts of all Buyer hereby agree that if any of the Proration Items relating to the period up to the Proration Time, aforesaid prorations and Purchaser will credits cannot be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth calculated accurately on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, then the prorations will same shall be made at calculated as soon as reasonably practicable after the Closing Date and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay said sum to the other party. Seller and Buyer shall jointly prepare and approve a preliminary Closing Statement on the basis of the best evidence then available; thereafterleases and other sources of income and expenses, when actual figures are received, reand shall deliver such computation to the Title Company prior to the Closing.
(b) Seller shall pay one-prorations will be made on the basis half (1/2) of the actual figuresescrow fee, any county transfer taxes applicable to the sale, and a final cash settlement will be made between Seller and Purchaserthe costs of obtaining the CLTA portion of the title insurance policy. No prorations will be made in relation to Buyer shall pay the costs of obtaining the ALTA portion of the title insurance premiumspolicy, the cost of any endorsements, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as one-half (1/2) of the Closing Dateescrow 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. In addition, in which event no proration will Seller shall 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 liable for any deposits prepayment fee or other charge payable in connection with the utility providers. any payoff of deeds of trusts or mortgages entered into by Seller.
(c) The provisions of this Section 10.4(a) will 8.5 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Pacific Gulf Properties Inc)
Prorations. 13.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); water and other utility charges; 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); ; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 13.2 below.
13.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Seller and PurchaserPurchaser shall pay such Post-Closing Receipt to Seller. No prorations will be made in relation Purchaser shall use its best efforts (excluding litigation) to insurance premiumscollect all amounts which, and Seller's insurance policies will not be assigned to Purchaserupon collection, would constitute Post-Closing Receipts hereunder. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, and Purchaser will be obligated shall pay to make its own arrangements for any deposits with the utility providersSeller said additional Post-Closing Receipts. The provisions Paragraph 13.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. (a) Seller All rents and Purchaser agree other income from the Property, including any initial lump sum or disproportionate payments which shall be allocable over the term of any agreement to adjustwhich such payments relate, as and real estate and personal property ad valorem taxes, and other operating expenses from the Property shall be prorated on the basis of 11:59 p.m. on a 365 day year through the day preceding the day of Closing. If Closing is extended by mutual agreement, all adjustments shall be made as of the 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 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; OP shall include such delinquencies in its normal billing and shall pursue the collection thereof in good faith after the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest but OP shall not be required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer chargeslitigate or declare a default in any Tenant Lease). If there are meters To the extent OP receives amounts on the Real Property, Seller will cause readings account of all said meters to be performed not more than five (5) days prior to Tenant Leases on or after the Closing Date, and a per diem adjustment such payments shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not applied first toward then current rent owed 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 OP in connection with the applicable Tenant Lease for which such payments are received, and any real estate tax appeals that excess monies received shall be applied toward the payment of any delinquent rents, 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 pending at the time of Closing. Seller will be charged and credited for the amounts of all no longer tenants of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Property as of the Closing Date, Contributor shall retain all rights relating thereto.
(b) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the prorations 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 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 pay any installment due after the Closing Date). In no event shall Contributor 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.
(c) Interest with respect to all indebtedness or liabilities which will be made at Closing a credit to the Consideration to be paid by OP for the contribution of the Property by Contributor;
(d) Transferable annual permits, licenses, and/or inspection fees, if any, on the basis of the best evidence then available; thereafterduration of the same;
(e) Security Deposits, when actual figures are receivedplus accrued interest, re-prorations will if any, payable thereon to tenants, and any other deposits and prepaid rent, shall be made credited (or assigned) to 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 the actual figurescharge or premium for the period involved;
(h) Tenant improvements costs and leasing commissions for leases signed after the Effective Date shall be paid by OP 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 a final cash settlement will accordingly there shall be made between Seller and Purchaser. No prorations will be made in relation to no proration of insurance premiums. Notwithstanding anything to the contrary contained in this Agreement, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will 6.2 shall survive Closing. Any prorations of any kind described in this Agreement payable by Contributor to OP shall be treated as a reduction in the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration TimeDistribution Loan Proceeds that are distributed to Contributor under Section 1.2(d). Any such prorations payable by OP 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 all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertythis Agreement.
Appears in 1 contract
Prorations. (a) Seller Real estate and Purchaser agree to adjustpersonal property taxes, costs and revenues (including rents), monthly assessments by the Association, and all other proratable items shall be prorated as of 11:59 p.m. the date of Closing. Seller shall pay all applicable sales and/or use tax due on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits revenues received and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days purchases made prior to the Closing Datedate 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, and a per diem adjustment 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 made for the days between the meter reading date reprorated 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 adjusted when the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as such year is received and the actual amount 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) monthstaxes is known.
(b) Purchaser will receive a credit on the at Closing Statement for the prorated amount (as of the Proration Time) of all Rental base or fixed rent payable pursuant to the Leases and all additional rents (collectively, “Rent”) previously paid to to, or collected by 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 at Closing. All Rent collected by Purchaser or Seller from each tenant under the Leases from and after Closing will be applied as follows: (i) first, to Delinquent Rent owed for the Proration Timemonth in which the Closing Date occurs, (ii) second, to any accrued Rents owing to Purchaser after Closing, and (iii) third, to Delinquent Rents owing to Seller for the period prior to Closing. After 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 tenant of the Property or to recover possession of an tenant’s space.
(c) With respect to electricity, telephone, television, water and sewer services that are metered at the 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 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 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 a subsequent actual reading, such apportionment shall be adjusted and reprorated to reflect the actual per diem rate for the billing period prior to Closing and Seller or Purchaser, as the case may be, shall promptly deliver to the other the 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 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 three (3) days prior to the Closing Date. The provisions of this Section 14 shall survive the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property.
Appears in 1 contract
Prorations. (a) Seller 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) RentalsRents, in accordance with Section Subsection 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, 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, .
(v) Such other items of income and expense as are typically prorated at Closing, assume all expenses incurred or closing similar to be incurred in connection with any real estate tax appeals that are pending at the time of Closingtransaction 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 from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser 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 ▇▇▇▇▇▇▇▇ 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 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 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 from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by 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 ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to current amounts owed by such Tenant to Purchaser and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 5.2.1 All revenues, including without limitation, rentals, prepaid rentals and prepaid payments (a) Seller and Purchaser agree to adjustcollectively, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIMERent"), shall be prorated on the following 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 (collectivelyincluding interest thereon, as required by law). 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, after Closing, Buyer collects any Rent applicable to periods prior to Closing, such Rent shall first be applied to Rent due for the current period, if any, and the balance shall be promptly paid by Buyer to Seller. If, after Closing, Seller collects any Rent applicable to rental periods after the Closing, Seller shall promptly pay the same to Buyer. For such purposes, the "PRORATION ITEMS"):
(i) Rentalsperiod for which Rent is applicable shall be the one designated in writing by the person paying such Rent or, if there is no such designation, the Rent shall be applied first to Rent due for the current period, if any, with the balance applied in accordance with Section 10.4(b) belowthe inverse order of the Rent payments due from such Tenant.
(ii) Cash Security Deposits and any prepaid rents5.2.2 All expenses, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, including without limitation, electricity, water charges utilities and sewer charges. If there are meters on all other expenses to operate the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment Property shall be made for prorated as of the days between the meter reading date and the Closing Date based on the most recent meter readingClosing.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) 5.2.3 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 prorated at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis 100% of the most recent tax bills for the Property. Taxes will then be reprorated upon receipt of actual figuresbills for the applicable periods and the responsible party will promptly pay the difference to the other party. This provision will survive Closing.
5.2.4 Unless the Existing Financing is paid as provided in Section 3.7, an amount equal to payments of interest and deposits due under the Existing Financing, including without limitation, the repair escrow, the replacement reserve escrow fund, the real estate tax escrow, the hazard insurance escrow, and a the mortgage insurance escrow, shall be paid to Seller at Closing.
5.2.5 With respect to any of Seller's employees that Buyer chooses to hire, Seller agrees to pay those employees for any accrued vacation or sick time they have earned prior to Closing.
5.2.6 All prorations under this SECTION 5.2 shall be adjusted, if necessary, and completed after the Closing as soon as final cash settlement will be made between information becomes available. Seller and Purchaser. No Buyer agree to cooperate and use their best efforts to complete such prorations will be made in relation no later than sixty (60) days (except with respect to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of real estate taxes) after the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Home Properties of New York Inc)
Prorations. 5.2.1 Rentals from Leases (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes including fixed monthly rentals and other periodic rentals, additional rentals, percentage rentals, escalation 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 security deposits actually held by Seller and for all Rent which include each Tenant's proration share Seller has actually received before the Closing which is allocable to the period after the Closing. Seller shall not receive a credit for any Rent Seller has not received as of building operation (the Closing that is allocable to the period prior to the Closing. If Buyer shall collect any such Rent (including without limitation percentage rent) after the Closing allocable to the period prior to the Closing, Buyer shall promptly pay the same to Seller, after application of the same to any rent due from the applicable Tenant after the Closing.
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. If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall make any necessary adjustment after Closing by cash payment upon demand to the party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which are allocable to the period after the Closing).
5.2.3 Seller shall endeavor to have all of its utility accounts with respect to the Property closed out effective as of the Closing Date; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs).
5.2.4 Common area and maintenance costs charges, property taxes, insurance and expenses other operating cost pass-throughs payable by Tenants which accrue as provided for under of the LeaseClosing 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 retain any Operating Expenses paid by Tenants on or after the Closing Date and Seller shall receive and retain any Operating Expenses paid by Tenants prior to the extent 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 Closing Date shall be prorated as of the Closing Date. Buyer and Seller shall prorate at Closing, actual Operating Expenses collected by Seller from 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 Tenants for the period of Seller’s ownership, Seller shall pay Buyer the amount of such rebates at Closing, and if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to the period of Seller’s ownership, Buyer shall promptly pay Seller the amount so owed to the landlord upon Buyer’s receipt of the same exceeds (and Buyer shall exert diligent good faith efforts to collect the same but shall not required to terminate any expense stop specified Lease or evict any Tenant in such Leaseconnection therewith), retroactive rentals, all administrative charges, utility charges, tenant or real property. Any prorations under this Agreement based upon monthly amounts shall be based upon a thirty (30) day month; any prorations under this Agreement based upon annual amounts shall be based upon a 366 day year.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Prorations. 6.2. 1Prorations. All income and expenses of the Property shall be apportioned as of 12:01 a.m. EST on the Closing Date, with the Operating Partnership being deemed to be the owner of the Property during the entire day on which the Closing Date occurs and being entitled to receive all revenue of the Property, and being obligated to pay all expenses of the Property, with respect to such day.
(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on Such prorated items shall include the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):following:
(i) Rentalsany other income with respect to the Property received by the Closing Date, in accordance with Section 10.4(b) below.if any, and for the current month not yet delinquent. Such proration shall be based on an operating statement updated not less than 1 day prior to the Closing Date;
(ii) Cash Security Deposits taxes and assessments (including personal property taxes on the Fixtures and Personal Property) levied against the Property, the Contributor, subject to the Escrow Agents approval, shall escrow the funds for real estate taxes now due or delinquent for 2021, or that may becoming due and payable against the Property up and to Closing. For the avoidance of doubt, the foregoing escrow requirement is an accommodation to the Contributor to pursue payment of the its tax ▇▇▇▇, however, under no circumstance shall any prepaid rentsdelinquent payment of taxes occur or a lien be created, together with interest required and if for any reason the Contributor cannot satisfy the amounts, then the Escrow Agent shall be directed to be paid thereonpay the then due and owing taxes.
(iii) Utility utility charges payable by Sellerfor which the Contributor is liable, includingif any, without limitation, electricity, water such charges and sewer charges. If there are meters to be apportioned at the Closing on the Real Property, Seller will cause readings basis of all said meters the most recent meter reading occurring prior to be performed the Closing (dated not more than five 15 days prior to the Closing) or, if unmetered, on the basis of a current ▇▇▇▇ for each such utility;
(5iv) days all amounts payable with respect to Assumed Liabilities in effect as of the Closing;
(v) credit shall be given to the Contributor for interest accounts, impound accounts, escrow accounts and other reserves included within the Existing Loans, which shall be transferred to the Operating Partnership at the Closing;
(vi) room charges for the night before the Closing Date and ending on the morning of the Closing Date shall be split between the Contributor and the Operating Partnership on a fifty/fifty (50/50) basis and
(vii) any other operating expenses or other items pertaining to the Property which are customarily prorated between a transferor and transferee of real estate in the county in which the Property is located.
(b) Notwithstanding anything contained in this Section 6.2.1, the following shall apply:
(i) The Operating Partnership shall be entitled to a credit against the Contributor’s Total Consideration to be delivered for the total sum of all deposits with respect to the Assumed Liabilities (not including interest accounts, impound accounts, escrow accounts and other reserves included within the Existing Loans, which shall be addressed in accordance with Section 6.2.1(a)(v) above) (the “Property Deposits”) to the extent not paid over to the Operating Partnership, and the Operating Partnership shall assume at the Closing the obligation under the Assumed Liabilities with respect to all Property Deposits credited or paid over to the Operating Partnership;
(ii) Except as provided in the following sentence, all delinquent real estate taxes and assessments shall be paid by the Contributor at or before the Closing, together with any interest, penalties or other fees related to any delinquent taxes. In determining prorations relating to non-delinquent taxes, the Operating Partnership shall be credited with an amount equal to the real estate taxes and assessments applicable to the period prior to the Closing Date, and a per diem adjustment to the extent such amount has not been actually paid by the Contributor. In the event that the Contributor has paid prior to the Closing any real estate taxes or assessments related to the Property applicable to the period after the Closing Date, the Contributor shall be made entitled to a credit for such amount. In connection with 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 re-proration of real estate taxes and assessments for which a credit was given or a proration was made at the Closing, the Parties shall be adjust the differences between them promptly upon demand being made therefor by either the basis of Contributor or the tax rate for the preceding year applied to the latest assessed valuationOperating Partnership. If, subsequent to after the Closing DateClosing, any additional 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 assessments applicable to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (are levied for any reason, including back assessments or escape assessments, then the "CLOSING STATEMENT")Contributor shall pay all such additional amounts, including any additional fees and interest, if any. If, after the Closing, the Contributor or the Operating Partnership receive any property tax refunds regarding any Property relating to a period prior to the Closing, then that portion of the refunds related to a period prior to the Closing that is required to be refunded to any tenant of the Property shall be delivered to or retained by, as the case may be, the Operating Partnership for the purpose of making such refund payments with the remaining portion of such refunds retained by or delivered to, as the case may be, the Contributor. The Operating Partnership shall pay all supplemental taxes resulting from the change in ownership and reassessment occurring as the result of the Closing Statementpursuant to this Agreement;
(iii) The Operating Partnership shall take all steps necessary to effectuate the transfer of all utilities to the name of the Operating Partnership as of Closing, once agreed uponwhere necessary, post deposits with the utility companies, and provide the Contributor with written evidence of the transfer at or prior to Closing. The Contributor shall be signed entitled to recover any and all deposits held 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 any utility company as of the Closing Date, ;
(iv) The net proration credit to or charge against the Contributor on account of the prorations will adjustments to be made at upon the Closing on shall be reflected through an adjustment to the basis cash portion of the best evidence then available; thereafter, when actual figures are received, re-prorations will Contributor’s Total Consideration to be delivered pursuant to this Agreement. Any other proration adjustments made on following the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will Closing shall be made in relation to insurance premiums, and Seller's insurance policies will cash; and
(v) If any prorations hereunder cannot be assigned calculated accurately on the Closing Date, then they shall be calculated as soon after the Closing Date as feasible. Either party owing the other party a sum of money based on such subsequent proration(s) shall promptly pay said sum to Purchaser. Final readings and final ▇▇▇▇the other party, with interest per annum at the prime rate of interest as set forth in The Wall Street Journal, plus 2% from the Closing Date to the date of payment if payment is not made within 10 business days after delivery of a ▇▇▇▇ for utilities will therefor. Once all revenue and expense amounts have been finally and completely ascertained, the Operating Partnership shall prepare a final proration statement which shall be made if possible as subject to the Contributor’s reasonable approval. Upon the Contributor’s acceptance and approval of any final proration statement submitted by the Closing DateOperating Partnership, in which event no proration will such statement shall be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause conclusively deemed to be paid or turned over accurate and final. To the extent any reconciliation is required, the Operating Partnership shall be permitted to Purchaser all Rental, if any, received offset any amounts by Seller after Closing and attributable to any period from and after adjusting 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, Series T Limited Units transferred to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyContributor.
Appears in 1 contract
Sources: Contribution Agreement (Lodging Fund REIT III, Inc.)
Prorations. (a) 5.4.1 The following shall be prorated between Seller and Purchaser agree to adjust, as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (on the "PRORATION TIME"basis of the actual number of days elapsed over the applicable period):
(a) All ad valorem real estate taxes, assessments, and 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, regardless 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, 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 following Leases, and other tenant charges if, as and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date) to Purchaser on the Closing Date. Seller shall deliver to Purchaser at Closing any tenant security deposits which are held in the form of letters of credit, along with any required transfer forms and fees, if any. Rents which are delinquent as of the Closing Date shall not be prorated on the Closing Date. Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent Purchaser receives rents on or after the Closing Date, such payments shall be applied first toward the rents for the month in which the Closing occurs, second to the rents that shall then be due and payable to Purchaser, and third to any delinquent rents owed to Seller, with Seller’s share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser. Purchaser may not waive any delinquent rents nor modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent, which consent may be given or withheld in Seller’s sole and absolute discretion. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to terminate 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 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, 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 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 purchasers of real estate properties similar to the Property and located in the same geographic area as the Property. Specifically, Seller will prepare a reconciliation as of the Closing Date of the amounts of all ▇▇▇▇▇▇▇▇ 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 "PRORATION ITEMS"):
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) Rentalscollecting from Tenants the amount of any outstanding Operating Expense Recoveries for calendar year 2016 for periods before and after Closing, in accordance with Section 10.4(band (ii) belowwhere 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.
(iie) Cash Security Deposits Charges and any prepaid rents, together with interest required payments under Contracts or permitted renewals or replacements thereof assigned to be paid thereonPurchaser pursuant to the Assignment and Assumption of Contracts.
(iiif) Utility charges payable by SellerAny prepaid items, including, without limitation, electricityfees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees.
(g) Utilities, water charges including, without limitation, telephone, steam, electricity and sewer charges. If there are meters gas, on the Real basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings.
(h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assigned to Purchaser at the Closing, which shall be credited in their entirety to Seller.
(i) Personal property taxes, if any, on the basis of the fiscal year for which assessed.
(j) Permitted administrative charges, if any, on those tenants’ security deposits transferred by Seller pursuant to the Assignment and Assumption of Leases.
(k) Taxes payable by Seller relating to operations of the Property, including, without limitation, business and occupancy taxes and sales taxes, if any.
(l) Such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the same geographic area as the Property subject to Section 7.2.3(a) hereof, including, without limitation, any amounts paid by tenants of the Property and held by Seller will cause readings as actual or estimated real estate taxes pursuant to such tenant’s leases.
(m) If Purchaser shall be assuming the Existing Financing, interest payable on the Existing Financing.
(a) If any of all said meters the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be performed not more than five apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that (5i) days prior with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one hundred eightieth (180th) day after the Closing Date and (ii) with respect to the items required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to request apportionment or reapportionment of any such item at any time following the one (1) year anniversary of the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before a real estate or personal property tax rate or assessment is fixed for the tax rate is fixedyear in which the Closing occurs, the apportionment of real estate taxes at the Closing shall be upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest assessed valuation. If, subsequent to Promptly after the Closing Date, real estate taxes (by reason of change in either assessment or new tax rate or for any other reason) for assessment is fixed, the Real Property and Improvements should be determined to be higher apportionment of taxes or lower than those that are apportioned, a new computation assessments shall be made, recomputed and Seller agrees to pay Purchaser any increase shown by discrepancy resulting from such recomputation and vice versa. 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 shallshall be assuming the Existing Financing, Purchaser shall be given a credit at Closingthe Closing for the then current principal balance of the Existing Financing and Seller shall be given a credit for the amount of all security, assume all 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 or to be incurred by Seller in connection with any real estate tax appeals that are pending at new Leases or modifications to any existing Leases entered into after the time date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of Closingthis 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 will shall be charged responsible for all brokerage and credited leasing commissions and tenant improvement costs for the amounts initial term of all Leases entered into prior to 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 Proration Items relating Purchaser Assumed Pre-Existing Brokerage and TI Costs still outstanding and payable by Purchaser post-closing. Purchaser shall be responsible for and expressly assumes the obligation to the period up pay all Purchaser Assumed Pre-Existing Brokerage and TI Costs and all brokerage and leasing commissions, tenant improvement costs and other costs and expenses including attorney’s fees for any new leases entered into either prior to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period or from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller date of this Agreement and submitted to Purchaser any extension, renewal or expansion of any existing Lease exercised or entered into either prior to or from and after the date of this Agreement including, without limitation amounts owed under the Brokerage Agreements, provided in all such instances, the term of such Lease, extension, or expansion or the regularly scheduled payment of rent commences from and after the date of this Agreement (collectively, “Purchaser Leasing Costs”). If at the Closing Date (the "CLOSING STATEMENT"). The Closing StatementSeller has paid any Purchaser Leasing Costs, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net at the Closing shall include an appropriate credit to Seller) or by . If at the Closing there remain unpaid Seller Leasing Costs, Purchaser shall expressly assume the responsibility to Purchaser (if pay such unpaid Seller Leasing Costs, and the prorations result in a net at the Closing shall include an appropriate credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. .
5.4.4 The provisions of this Section 10.4(a) will 5.4 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
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Prorations. 15.1 Water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (a) i.e. adjusted for all tenants' liabilities, if any, for such items); operating expenses paid by Seller and Purchaser agree to adjust, as of 11:59 p.m. on which are reimbursable by the day preceding tenants for the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days period prior to the Closing Date, and a per diem adjustment shall be made less any amount previously paid by the tenants; unpaid operating expenses for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date prorated on a "net" basis, as set forth above; and all other items of expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing Date (the "CLOSING STATEMENTProration Date"). The Closing Statement, once agreed upon, Seller shall be signed entitled to a credit for all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by
15.2 All basic rent paid following the Closing Date by any tenant of the Property who is indebted under a Lease for basic rent for any period prior to the Proration Date in an amount greater than the amount of all current basic rent owed by said tenant to Purchaser and Seller. The proration shall be deemed a "Post-Closing Receipt" until the earlier to occur of (i) one year after the Closing Date, or (ii) such time as all such indebtedness is paid at Closing by in full. Within ten (10) days following the end of each calendar month, Purchaser shall pay to Seller (if Post-Closing Receipts collected in the prorations result in a net credit to Seller) previous month. Purchaser shall use its reasonable, good faith efforts, at no additional cost or by Seller to Purchaser (if the prorations result in a net credit expense to Purchaser) by increasing or reducing , to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 30 days after 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 one-year anniversary of the Closing Date, upon the prorations will be made at written request of Seller, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing on Receipts through the basis first year after the Closing Date. Upon the delivery of the best evidence then available; thereafterPost-Closing Receipts reconciliation, when actual figures are received, rePurchaser shall deliver to Seller any Post-prorations will be made on Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the basis terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the actual figuresPost-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, and a final cash settlement will be made between Purchaser shall pay to Seller and said additional Post-Closing Receipts. Purchaser's obligations to attempt to collect Post- Closing Receipts shall expire one year from the Closing Date. No prorations will be made in relation Seller shall retain the right to insurance premiums, and Seller's insurance policies will not be assigned sue any tenant for rent owed to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements ler for any deposits with period prior to the utility providersProration Date. The provisions This Paragraph 15.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) monthsand the delivery and recording of the Deed.
(b) Purchaser will receive a credit on 15.3 Seller covenants to operate, maintain and manage the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent Property in the same exceeds any expense stop specified in such Lease)manner that it has managed, retroactive rentalsmaintained and operated the Property during the period of Seller's ownership, all administrative charges, utility charges, tenant or real propertysubject to reasonable wear and tear and casualty.
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Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents [i.e. unpaid on the Closing Date], but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); parking fees; service contracts described on Exhibit H; water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e., adjusted for all tenant's liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days date prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the tax rate for most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below, and except as provided below in this section. The parties agree to make such post-closing readjustments as may be required due to errors and omissions in the preceding year applied prorations. At any time prior to October 31, 1997, Purchaser, at Purchaser's cost, may conduct an audit, at reasonable times and upon reasonable advance notice to Seller, of Seller's books and records to verify the accuracy of the prorations and readjustments to the latest assessed valuationprorations required under this Paragraph.
12.2. IfAll rent paid following the Closing Date by any tenant of the Property who is indebted under a lease for basic rent for any period prior to the Closing Date after the payment to Purchaser of all current rent and any past due rent owed to Purchaser shall be deemed a "Post-Closing Receipt". At Closing, subsequent Seller shall provide Purchaser with a statement of all delinquent rentals as of the Closing. Within fifteen (15) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use commercially reasonable efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder but shall have no obligation to bring legal action. If Purchaser expends funds to collect rent due prior to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation Purchaser shall be made, and Seller agrees to pay Purchaser reimbursed its collection expenses from any increase shown by such recomputation and vice versadelinquent rent collected. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and Within 120 days after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in which event no proration will be made at accordance with the Closing with respect to utility billsterms hereof. Seller will be entitled retains the right, at Seller's cost, to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable advance notice to Purchaser, of Purchaser's books and records to verify the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with accuracy of the utility providersPost-Closing Receipts reconciliation statement. The provisions Paragraph 12 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) monthsand the delivery and recording of the deed.
12.3. Purchaser shall receive at Closing a credit equal to the amount of any unsatisfied obligations for outstanding tenant improvement and leasing commission obligations set forth in Exhibit N which are identified as Seller's obligation (b"Seller's Pre-Existing Obligations"). Purchaser agrees to assume (without a credit from Seller) the payment of those outstanding tenant improvement and leasing commission obligations set forth in Exhibit N which are identified as Purchaser's obligation ("Purchaser's Pre-Existing Obligations"). To the extent Seller pays any amounts toward Purchaser's Pre-Existing Obligations prior to Closing and provides evidence of such payment satisfactory to Purchaser will then Seller shall receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by from Purchaser therefor. Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentalshall receive a credit, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided in Paragraph 25. Purchaser shall assume at Closing all third party construction contracts for under the Leaseperformance of tenant improvement work and leasing commission agreements in connection with those leases (i) which give rise to Seller's Pre-Existing Obligations, (ii) which give rise to Purchaser's Pre-Existing Obligations and (iii) for which Purchaser is assuming the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyobligations pursuant to Paragraph 25 herein.
Appears in 1 contract
Prorations. 11.1 Subject to the provisions of this Paragraph 11, all revenues and expenses relating to the Property shall be prorated as of the Close of Escrow. Expenses relating to the Property, including without limitation, real property taxes and assessments, utility charges and the like, shall be prorated on an accrual basis, and revenues relating to the Property, including, without limitation, rentals and other income (aincluding, without limitation, common area charges and operating cost pass throughs) Seller shall be prorated on a cash received basis, subject to the provisions set forth in Paragraph 11.5 below. It is understood that Buyer shall not be entitled to any income or revenue, and Purchaser agree shall not be obligated for costs and expenses, under the CRG Agreements (as defined in Paragraph 22.22 below) (except as may be provided to adjust, the contrary in the Final CRG Lease). Such proration shall be made as of 11:59 p.m. Pacific Standard Time on the day immediately preceding the Closing Date (the "PRORATION TIME"“Proration Time”). Buyer shall be responsible for all real estate tax reassessment and increase as a result of the transactions contemplated under this Agreement. Seller shall be entitled to all tax refunds for periods prior to the Close of Escrow, and Buyer shall remit the same to Seller promptly after receipt; provided, however, that Buyer shall first deduct therefrom any portions thereof which are due to any of the tenants under the Leases and shall remit the same to such tenants. All monthly prorations shall be calculated on actual days of the applicable month and all annual prorations shall be calculated based on a 365-day year. Prior to the Closing Date, Seller and Buyer shall agree upon a schedule of expenses and prorations (“Proration and Expense Schedule”). If any prorations, apportionments or computations made under this Paragraph 11 shall require final adjustment because the information is unavailable at the Proration Time, then the parties shall make the appropriate adjustments promptly when accurate information becomes available and either party hereto shall be entitled to an adjustment to correct the same. Such adjustments shall be made as soon as complete and accurate information becomes available, but in all events no later than April 30, 2008 (the “Survival Cut-Off Date”). Any corrected adjustment or proration shall be paid promptly in cash to the party entitled thereto. Except as otherwise set forth above in this Paragraph 11.1, the following (collectively, obligations of the "PRORATION ITEMS"):
(i) Rentals, in accordance parties under this Paragraph 11 shall survive the Close of Escrow through the Survival Cut-Off Date and shall not be merged with Section 10.4(b) the Deed until the expiration of the Survival Cut-Off Date. The foregoing terms of this Paragraph 11.1 are subject to the terms of Paragraphs 11.2 through 11.5 below.
11.2 The leasing commissions, attorneys’ fees in connection with leasing, and improvement allowances/reimbursements/expenditures set forth on Schedule 11.2 attached hereto shall be the sole responsibility of Seller and shall be paid by Seller at or prior to, or an appropriate credit therefor shall be provided by Seller to Buyer upon, the Close of Escrow; upon such payment and/or credit, Seller shall have no further obligations whatsoever with respect to the amounts and items set forth in such Schedule 11.2. Notwithstanding the foregoing or anything to the contrary, (iia) Cash Security Deposits the tenant improvement allowance in the amount of $330,001.42 relating to the space leased by C▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co. (the “C▇▇▇▇▇▇ Allowance”) shall be Buyer’s sole responsibility (and Seller shall have no obligation with respect thereto), and any prepaid rentsportion of such amount paid by Seller prior to the Close of Escrow (without obligation to do so) shall be credited to Seller upon the Close of Escrow, together and (b) all other leasing commissions, attorneys’ fees in connection with interest required leasing, and improvement allowances/reimbursements/expenditures for any Leases or Lease amendments, whether with respect to base lease term (for Leases or Lease amendments executed after the date hereof), future expansions, renewals, or otherwise, shall be Buyer’s sole responsibility (and Seller shall have no obligation with respect thereto), and any such amounts paid thereonby Seller relating thereto (without obligation to do so) shall be credited to Seller upon the Close of Escrow; provided, however, Buyer shall not be responsible for leasing commissions, attorneys’ fees in connection with leasing, and improvement allowances/reimbursements/expenditures relating to the CRG Agreements or any space covered solely by the Final CRG Lease (except as may be set forth to the contrary in the Final CRG Lease).
(iii) Utility charges payable by Seller11.3 As of the Close of Escrow, Seller shall not be responsible for any charges, fees, assessments or other amounts relating to utilities, including, without limitation, those for sewer, electricity, water charges and sewer charges. If there gas (the “Utility Charges”), which are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration TimeClosing Date. The estimated Closing prorations Buyer shall be set forth on a preliminary closing statement responsible to have the applicable utility companies switch service into Buyer’s name at Closing and shall be prepared by solely responsible to pay all Utility Charges accruing after the Close of Escrow. Without limiting the foregoing, Seller may instruct any utility company that Seller no longer owns the Property and submitted to Purchaser shall not be responsible for Utility Charges accruing after the Close of Escrow. Additionally, it is understood that Seller, prior to the Closing Date Close of Escrow, may b▇▇▇ Tenants for electricity/power charges that may not be fully reimbursed to Seller by such Tenants as of the Close of Escrow (the “Utility B▇▇▇ Amounts”). Buyer shall b▇▇▇ and use reasonable efforts to collect any such Utility B▇▇▇ Amounts in the ordinary course of business (and such Utility B▇▇▇ Amounts shall not be forgiven, reduced, deferred, delayed or suspended by Buyer) through the Survival Cut-Off Date, but shall not be obligated to engage a collection agency or take legal action to collect any such amounts. Buyer shall be entitled to retain ten percent (10%) of the Utility B▇▇▇ Amounts that it collects for delivery to Seller hereunder. Seller shall have the right to seek collection of any Utility B▇▇▇ Amounts applicable to any period before the Close of Escrow from any Tenants, but shall not have the right to evict Tenants or to terminate or threaten to terminate any such Tenant’s Lease or right to possession of its premises. Any Utility B▇▇▇ Amounts actually collected by Buyer to which Seller is entitled hereunder shall be promptly delivered by Buyer to Seller (after deducting the 10% set forth above to which Buyer is entitled).
11.4 Buyer shall be credited and Seller shall be charged with (but Seller shall retain as its sole and separate property, notwithstanding any contrary provision in this Agreement) any security deposits and advanced rentals in the nature of security deposits made by the lessees/licensees (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to SellerTenants”) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the LeaseLeases, except to the extent the same exceeds any expense stop specified have been applied in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyaccordance with the terms of said Leases (subject to the provisions of Paragraphs 21.3
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Prorations. (a) Seller and Purchaser agree The following are to adjust, be apportioned as of 11:59 p.m. 12:00 a.m. EDT/EST on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged Such adjustments, if and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, extent known and Purchaser will be charged and credited for all agreed upon as of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed uponClosing, shall be signed paid by Purchaser and Seller. The proration shall be paid at Closing by Purchaser Buyer to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser Buyer (if the prorations result in a net credit to PurchaserBuyer). Any such adjustments not determined as of Closing shall be paid in accordance with the process described in the immediately preceding sentence, in cash or other immediately available funds as soon as practicable following Closing.
(a) by increasing or reducing All non-delinquent ad valorem and non-ad valorem real property taxes and assessments for the cash to be delivered by Purchaser in payment of the Purchase Price at the ClosingReal Property. If the actual Closing shall occur before the amounts of such taxes and assessments are fixed, apportionment of such taxes and assessments shall be based upon the Proration Items proposed taxes for the year 2011 promulgated by the County’s Property Appraiser’s Office using the maximum discount available or if said proposed taxes are not known available, then the apportionment shall be based on the taxes and charges paid for the latest applicable period using the maximum discount available. Without 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 the Closing Date. All rebates resulting from any such appeal shall belong solely to Seller. Within five (5) business days after Buyer receives any 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 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 of the foregoing have not been issued before the Closing Date, the prorations will charges therefore shall be made at adjusted on the Closing Date on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on charges for the basis most recent prior period.
(c) Rents collected from tenants and other occupants of the actual figuresReal Property, including prepaid rents and other revenues collected under the Tenant Leases. Prior to Closing, Seller shall furnish to Buyer and Escrow Holder a final cash settlement will be made between Seller schedule of all rents and Purchaserother charges which are then payable by tenants and other occupants of the Real Property but which have not been paid to date. No prorations will be made in relation Buyer agrees that subsequent to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, any rents collected shall be applied first towards any rent arrearages owing to Seller and 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 event no proration will 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 with respect pursuant to utility billsthis Section 5.2 shall survive closing for a period of sixty (60) days. At the expiration of said period, unless either Seller will or Buyer objects to an apportionment or proration, all adjustments shall be entitled deemed final. Notwithstanding anything set forth in this Agreement to all deposits presently in effect with the utility providerscontrary, Buyer acknowledges and Purchaser will agrees that Seller shall not be obligated to make its own arrangements responsible 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 costs, expenses or other amounts relating to or collected by arising from the Property prior to the date on which Seller and attributable acquired title to the Property, which shall include, without limitation, any costs or expenses related to any period from and after the Proration Time. After the Closingcode violations, Seller will cause to be paid or turned over to Purchaser all Rentalopen permits, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, delinquent utility charges, tenant or real propertycharges and/or liens.
Appears in 1 contract
Sources: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Prorations. (a) Seller Sellers and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with Section 10.4(bcollected Rentals (subject to the terms of (b) below.
(ii) Cash Security Deposits ), expenses under Permitted Exceptions, and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges expenses under Service Contracts assumed by Purchaser at Closing payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters the owner of the Property (on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuationa 365 day year, actual days elapsed). If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller Sellers will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller Sellers and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) Business Days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSellers and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller Sellers (if the preliminary prorations result in a net credit to SellerSellers) or by Seller Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made -39- at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller Sellers and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's Sellers’ insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller Sellers will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be made by Purchaser and Sellers on or before November 30, 2016 (herein, the “Final Proration Date”). The provisions of this Section 10.4(a) 10.4 will survive the Closing until the Final Proration Date has occurred, and in the event any items subject to proration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4. Notwithstanding anything to the contrary provided in this Agreement including, but not limited to, this Section 10.4(a), Sellers and Purchaser hereby agree to use the following, estimated 2016 real estate taxes and assessments for twelve purposes of the proration of same at Closing: (12x) months.
(b) Purchaser will receive a credit on the Closing Statement $172,450.00 for the prorated amount Cherokee Plaza Real Property and the Cherokee Plaza Improvements, (as of y) $154,000.00 for the Proration Time▇▇▇▇▇ Plains Exchange Real Property and the ▇▇▇▇▇ Plains Exchange Improvements, and (z) of all Rental previously paid to or collected by Seller $105,000.00 for the ▇▇▇▇▇▇▇▇ Bridge Commons Real Property and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property▇▇▇▇▇▇▇▇ Bridge Commons Improvements.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits Collected Rents and any prepaid rents, together with interest required to be paid thereon.
other amounts (iii) Utility charges payable by Seller, including, without limitation, electricitypayment of base rent, water charges ground rent, parking income and sewer charges. If there are meters reimbursements of Property operating costs) paid by tenants applicable to the month in which the Date of Closing occurs or prepaid by tenants for months after the month in which the Date of Closing occurs shall be prorated as of the Date of Closing and be adjusted against the Purchase Price on the Real Propertybasis of a schedule (the “Rent Schedule”) which shall be prepared by Seller and delivered to Purchaser two (2) business days prior to Closing. The Rent Schedule shall set forth (i) rents and other amounts payable applicable to the month in which the Date of Closing occurs, (ii) rents and other amounts collected by Seller applicable to the month in which the Date of Closing occurs, and (iii) rents and other amounts due but uncollected and applicable to the month in which the Date of Closing occurs, (the latter unpaid obligations being referred to herein as the “Current Delinquencies”), as well as rental and other payment delinquencies (excluding those applicable to the month in which the Date of Closing occurs) which are owed to Seller but uncollected as of the Date of Closing (“Delinquencies”). Purchaser shall receive a credit against the Purchase Price for any cash security and other deposits with respect to the Leases, which deposits are held by Seller and have not been applied or forfeited as of Date of Closing. Such cash deposits will be kept by Seller. In the event that any security deposits are in the form of letters of credit or other financial instruments, Seller will, at Closing, assign its interest in such letters of credit or financial instruments to Purchaser, and, following Closing, Seller will cooperate with Purchaser, at no cost to Seller, in order to cause readings of all said meters Purchaser to be performed named as beneficiary under such letters of credit and other financial instruments to be assigned to Purchaser, and Purchaser shall not more than five receive a credit against the Purchase Price for such security deposits.
4.4.1. Vault charges, property taxes, sewer charges, utility charges and operating expenses actually paid or payable by Seller as of the Date of Closing, and which have not been reimbursed to Seller by tenants, shall be prorated as of the Date of Closing and adjusted against the Purchase Price, provided that within ninety (590) days after the Closing, Purchaser and Seller shall make a further adjustment for such charges which may have accrued or been incurred prior to the Date of Closing, but not collected or paid at that date. In addition, (i) within thirty (30) days following the Closing Date, Seller shall cause the Manager to complete the tenant expense reconciliations for 2014 and deliver the reconciliation statement to Purchaser, (ii) to the extent the reconciliation statement shows a per diem adjustment net amount owed to Seller, Purchaser shall within ten (10) days pay such amount to Seller, (iii) to the extent the reconciliation statement shows a net refund owed tenants, Seller shall within ten (10) days pay such amount to Purchaser, and (iv) Purchaser shall be responsible delivering the reconciliation statements to the tenants and paying to or billing and collecting from the tenants any amounts due to or owing by the tenants as a result of such reconciliations. Purchaser shall be responsible for completing tenant expense reconciliations for 2015 and paying to or billing and collecting from the tenants any amounts due to or owing by the tenants as a result of such reconciliations. All prorations shall be made for on a 365-day calendar year basis, using actual number of days in 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) month. DAL:0590722/00075:2361764v4 Taxes. Real estate taxes, personal property taxes, special assessments (and installments thereof) and other governmental taxes due and charges relating to the Property, including annual or periodic permit fees, (collectively, “Taxes”) payable for during the calendar yearyear in which Closing occurs shall be prorated as of the Date of Closing and adjusted against the Purchase Price. If the Closing Date shall occur occurs before the tax rate is fixedactual Taxes payable during such year are known, the apportionment proration of real estate taxes Taxes shall be upon the basis of Taxes for the Property payable by Seller during the immediately preceding year; provided, however, that if the Taxes payable during the year in which Closing occurs are thereafter determined to be more or less than the Taxes payable during the preceding year (after any appeal of the assessed valuation thereof is concluded), Seller and Purchaser promptly (but no later than November 15, 2015), except in the case of an ongoing tax protest), shall adjust the proration of Taxes and Seller or Purchaser, as the case may be, shall pay to the other any amount required as a result of such adjustment, and further provided that any reproration of an increase in real estate taxes shall take into account only increases in the tax rate for or millage, i.e., any portion of any real estate tax increase attributable to an increase in assessed value shall not be taken into account. The parties shall reasonably cooperate with each other in any efforts to obtain a reduction in real estate taxes assessed against the preceding year applied Property. All refunds or tax savings relating to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason a) shall inure to the benefit of change in either assessment Seller if such refunds or rate or tax savings relate to any period for any other reason) for which Seller owned the Real Property and Improvements should be determined (b) shall inure to be higher the benefit of Purchaser if such refunds or lower than those that are apportionedtax savings relate to any period for which Purchaser owned the Property; provided, a new computation however, each party shall be made, pay its proportionate share of the legal 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 consulting fees actually incurred in connection with any real estate either party’s application for such refunds and 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 Timesavings, 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 which proportionate share shall be set forth based on a preliminary closing statement to be prepared the amount of tax refunds or tax savings received by Seller and submitted to Purchaser prior to each party. This covenant shall not merge with the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, deed delivered hereunder but shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at survive the Closing. If for the actual amounts current ad valorem tax year the taxable value of the Proration Items are not known as Property is determined by a special appraisal method that allows for appraisal of the Closing DateProperty at less than its market value, the prorations will person to whom the Property is transferred may not be made allowed to qualify the Property for that special appraisal in a subsequent tax year and the Property may then be appraised at Closing on its full market value. In addition, the basis transfer of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on Property or a subsequent change in the basis use of the actual figures, and Property may result in the imposition of an additional tax plus interest as a final cash settlement will be made between Seller and Purchaser. No prorations will be made penalty for the transfer or change in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as the use of the Closing Date, Property. The taxable value of the Property and the applicable method of appraisal for the current tax year is public information and may be obtained from the tax appraisal district established for the county in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthsProperty is located.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hartman Short Term Income Properties XX, Inc.)
Prorations. The following shall be prorated as of the Closing Date and the Purchase Price shall be adjusted accordingly at Closing: (a) Seller rents and Purchaser agree to adjust, any other amounts actually collected from tenants and other persons using or occupying the Properties as of 11:59 p.m. the Closing Date; (b) sewer charges, utility charges (utility charges shall be prorated based on the day preceding last reading of meters prior to Closing performed at Seller’s request, if possible) and normally prorated operating expenses actually billed or paid as of the Closing Date; and (c) amounts owed by Seller or paid under the Service Contracts as of the Closing Date. Purchaser shall at all times after Closing use commercially reasonable efforts (not to include commencing any eviction action or other litigation to collect such delinquency) to collect all rent or other amounts owed for the period prior to Closing, and Seller shall retain the right for up to ninety (90) days after Closing to pursue all PFS:009462.0002.2820427.11 remedies (not to include commencing any eviction action or other litigation to collect such delinquency, or terminating any lease) against tenants under Leases to collect such rents and other amounts due to Seller. All rent received by Purchaser or Seller after the Closing Date (shall be applied first to current rentals, then to delinquent rents accruing in the "PRORATION TIME")month of Closing and then, to the following (collectivelyextent the applicable tenant identifies such rent as attributable to the period prior to Closing, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days delinquent rentals accruing prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment The agreements of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, in this Section 8(a) shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at survive the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)
Prorations. 6.6.1 Except as provided in this Section 6.6.1, real property taxes and assessments, personal property taxes (if any), rent (which term, as used in this Agreement, includes, without limitation, operating expenses and common area maintenance charges, insurance, utilities, real estate tax and other assessment reimbursements, and parking fees) for the month in which Closing occurs and any rent prepaid under any Lease, and all other items of income and expense with respect to the Property, shall be prorated between Seller and Buyer through the Closing Date, based upon a rent roll delivered by Seller to Buyer and the Title Company prior to the Closing Date. In the event Buyer has the right to be reimbursed by the tenants of the Property for real property taxes or other items customarily prorated upon sale and Seller has not previously collected monthly estimates for such amounts, then such items shall not be prorated at Closing. In addition to the Purchase Price, Buyer shall pay Seller an amount equal to any refundable deposits and/or bonds held by any utility, governmental agency or service contractor with respect to the Property, provided that such utility, agency or contractor is obligated to refund the deposit to Buyer, rather than to Seller, following the Closing. Any rent collected by Buyer after the Closing Date shall be applied first to pay any rent then due and owing for the calendar month in which the Closing occurs, next, to any period subsequent to the Closing Date, and then to pay any rent owing for any period prior to the month of the Closing. Buyer shall remit such amounts due Seller to Seller immediately upon receipt. Except as specified above, if either Buyer or Seller receives any revenues attributable to the period during which it is not the owner of the Property, said party shall promptly forward such amounts to the other party (if such revenues are only partially attributable to the period during which said party is not the owner of the Property, the amount paid to the other party shall be based upon proration as of the Closing Date as set forth above). Buyer shall use reasonable efforts, at no expense to Buyer, to collect and assist Seller in collecting any revenue which is owed to Seller as of the Closing Date or which comes due thereafter. Seller shall have the right to ▇▇▇ or otherwise attempt to collect the same from any such tenant (which right shall survive the Closing), and Buyer agrees to cooperate with Seller in connection with such efforts by Seller. Buyer’s obligations under this Section 6.6.1 shall survive the Closing and shall bind its successors in interest.
6.6.2 Buyer and Seller shall cooperate to produce on or before the Closing Date a schedule of prorations which is as complete and accurate as reasonably possible. All prorations which can be reasonably estimated as of the Closing Date shall be made on the Closing Date. All other prorations and any adjustments to initial estimated prorations shall be made by Buyer and Seller within sixty (60) days following the Closing Date or such later time as may be required, but not later than December 31, 2010, in the exercise of due diligence, to obtain the necessary information for proration. Any net credit due one party from the other as a result of such post-closing prorations and adjustments shall be paid to the other in cash immediately upon the parties’ written agreement to a final schedule of post-closing adjustments and prorations.
6.6.3 Real estate taxes and personal property taxes on the Property shall be prorated based upon the payment period (i.e., calendar or other tax fiscal year) to which same are attributable with maximum discount taken, regardless of whether or not any such taxes are then due and payable or are a lien. Seller shall pay at or prior to Closing (or Buyer shall receive credit for) any unpaid taxes attributable to periods prior to the date of Closing (whether or not then due and payable or a lien as aforesaid). Seller shall receive credit for any previously paid or prepaid taxes attributable to periods from and after the date of Closing. In the event that as of the date of Closing the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, taking into account all applicable discounts for early payment, shall be used for purposes of the proration at Closing. If the proration at Closing is based on the taxes for the previous year as described above, the parties agree to re-prorate the applicable real estate taxes and personal property taxes for the year of Closing based on the actual real estate taxes and personal property taxes (with maximum discount) once the bills are available.
6.6.4 Certified liens levied by any governmental authority against the Property as of the Closing Date shall be paid by the Seller. Pending liens as of the Closing Date shall be assumed by the Buyer; provided, however, that if the improvement for which any such pending lien was levied was substantially completed as of the Closing Date, such pending lien shall be treated as a certified lien and paid by Seller. Notwithstanding the foregoing, if any assessment or lien is payable under the real estate tax ▇▇▇▇(s) for the Property on an installment payment basis, the parties agree that Seller shall be responsible for payment of those installments which accrue prior to the year of Closing, Buyer shall be responsible for payment of those installments which accrue subsequent to the year of Closing, and the parties shall prorate the installment which is due for the year of the Closing.
6.6.5 Notwithstanding the terms of Section 6.6.1, common area maintenance expenses and charges under the Leases for the year of Closing, if any, shall be prorated as set forth in this Section 6.5. Seller shall be responsible for all common area maintenance expenses and charges incurred prior to Closing, and Buyer shall be responsible for the same subsequent to Closing. All common area maintenance expense payments made by each tenant and such charges paid under its Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than sixty (60) days after Closing, Seller shall deliver to Buyer, with regard to each tenant required to pay common area maintenance expenses and charges (“CAM Charges”) under its Lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from January 1 of the year of Closing through the Closing Date, any CAM payments received by Seller relating to such tenant, and, as applicable, either (i) a ▇▇▇▇ for the tenant’s prorata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM payment received by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant’s Lease, or (ii) a statement setting forth any amounts owed to the tenant for such period with a payment equal to such amount to be provided by Seller to Buyer not later than thirty (30) days thereafter (the “Overpayment Amount”). Buyer shall, on or before March 31 of the year immediately following the Closing, incorporate any bills delivered by Seller into a single post-closing (as and when appropriate for annual reconciliation or other billing of CAM Charges for any tenant) ▇▇▇▇ for CAM Charges to such tenant, in which event such single ▇▇▇▇, as and when paid, shall be apportioned between Seller and Buyer based on the ratio of pre- and post-Closing CAM expenses (taking into account any CAM payments retained by Seller at Closing). Upon Buyer’s receipt of any Overpayment Amount from Seller, Buyer shall promptly turn over the same to the tenant(s) entitled to such Overpayment Amount. Notwithstanding anything to the contrary set forth herein, Buyer agrees that (a) Seller for the period from the date of Closing until the second (2nd) anniversary thereof, the rents payable under any renewal or extension of any Leases existing as of the Closing, which is not pursuant to an express renewal or extension right in the Lease, shall be at the then fair market value rent, and Purchaser agree any increases in base/minimum annual rent shall not increase by more than three and one-half percent (3.50%) in any year (the “3.5% Cap”), unless Buyer can demonstrate to adjustSeller, in Seller’s reasonable discretion, that such 3.50% Cap on annual increases is below the then fair market rent for the applicable leased space; provided, however, that the 3.5% Cap will not apply with respect to rent concessions as an inducement to entering into the renewal or extension of such Lease or rent which specifically represents amortization of a tenant improvement allowance under the renewal or extension of such Lease; and (b) in no event will the costs of repair and maintenance of those items listed on Schedule 6.6.5 be passed on or passed through to tenants under any Leases or New Leases (as defined below), and the respective Ground Leases shall provide for the applicable ground lessee thereunder to perform such repair and maintenance, as applicable, at the sole cost and expense 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) belowsuch ground lessee.
(ii) Cash Security Deposits and any prepaid rents, together with interest required 6.6.6 Buyer will receive at Closing a credit against the Purchase Price equal to be paid thereonall security deposits actually held by Seller under the Leases.
6.6.7 For any new leases or extensions or amendments to any existing Leases or any Lease which is extended pursuant to any exercise by the tenant of an option in such Lease after September 30, 2009 (iii) Utility charges payable by Sellereach of the foregoing being referred to as a “New Lease”), including, without limitation, electricitythose New Leases described on Schedule 6.6.7, water charges at Closing Buyer shall reimburse Seller, in cash, for (1) all tenant improvement costs and sewer charges. If there are meters on the Real Propertyexpenses incurred by Seller for repairs, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Dateimprovements, equipment, painting, decorating, partitioning, carpeting, and other work performed in the tenant’s space to satisfy 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 tenant’s requirements with respect 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 New Lease including, without limitation, any reimbursements paid to the tenant in connection with any such work performed by the tenant (collectively, the “TI Expenditures”), to the extent that are pending at such TI Expenditures have been paid by Seller as of the time date of Closing, and (2) all leasing costs and expenses, including, without limitation, leasing or brokerage commissions payable to any person or entity, incurred by Seller in connection with a New Lease (collectively, the “Leasing Expenditures”), to the extent such Leasing Expenditures have been paid by Seller as of the date of Closing. Seller will be charged With respect to Leasing Expenditures and credited TI Expenditures, Buyer shall assume liability for the amounts of all of same at Closing and shall indemnify 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 Released Parties (as defined herein) from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be against any claims made in relation to insurance premiumsconnection with Leasing Expenditures and TI Expenditures. Notwithstanding the foregoing, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller agrees that Buyer will be entitled to all deposits presently a credit at Closing against the Leasing Expenditures and TI Expenditures due from Buyer to Seller in effect with an amount equal to the utility providersapplicable Leasing Expenditure or TI Expenditure, multiplied by a fraction, the numerator of which is the number of months under the applicable lease for the period from the date of the commencement of the term of such New Lease or the date of the commencement of the extension or amendment of such Lease (if an existing Lease) until the date of Closing, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. denominator of which is the total number of months in the term of such New Lease or extension or amendment of an existing Lease.
6.6.8 The provisions of this Section 10.4(a) will 6.6 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Prorations. Rents actually collected for the calendar month in which the Closing occurs (aexclusive 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 (including payments made to Seller arising out of or related to the OPA (defined below), the Redevelopment Plan (defined below) Seller or any affordable housing regulations); real and Purchaser agree to adjust, personal property taxes (“Property Taxes”); and other similar revenue and expense items shall be adjusted ratably as of 11:59 p.m. P.M. Pacific Time on the day preceding the Closing Date (the "PRORATION TIME"“Proration Date”), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior credited or debited to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis balance of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, cash due at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged All regular and credited for the amounts of all of the Proration Items relating supplemental taxes and assessments attributable to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and the responsibility of Seller. The proration All regular and supplemental taxes and assessments attributable to the period after the Closing Date shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to responsibility of Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustment thereof shall be made at Closing on the basis of the best evidence then most recent ascertainable data. With respect to Property Taxes, if Closing occurs before the current fiscal year’s tax bills are available; thereafter, when actual figures are received, re-prorations the proration will be made on based upon the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇previous fiscal year’s tax ▇▇▇▇ and the proration shall be readjusted and settled by Seller and Purchaser within ten (10) business days after such tax ▇▇▇▇ is issued. If special assessments have been levied against the Property for utilities will improvements, then the amount of any installments which are attributable to periods on or prior to the Closing Date shall be made if possible as paid by the Seller; and the amount of installments which are attributable to periods after the Closing Date shall be paid by the Purchaser. If any charges, expenses or other items to be prorated hereunder are unavailable on the Closing Date, in which event no proration a readjustment will be made at within ten (10) business days following the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, availability of accurate bills 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) monthsfigures.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Agreement of Sale (Behringer Harvard Multifamily Reit I Inc)
Prorations. (a) 6.7.1. Real property taxes, assessments, rents, security deposits expenses and other prorateable items shall be prorated through Escrow between Buyer and Seller and Purchaser agree to adjust, as of 11:59 p.m. Close of Escrow. Rents, security deposits and expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents collected by Buyer shall be paid to Seller. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not cause a Tenant to be delinquent for their current rent or become financially unstable. Tax and assessment prorations shall be based on the day preceding the Closing Date (the "PRORATION TIME")latest available tax ▇▇▇▇. If, after Close of Escrow, Buyer receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax ▇▇▇▇ relating to any period after Close of Escrow, the following recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (510) days prior to the Closing Date, delinquency date shown on such tax ▇▇▇▇ Buyer and a per diem adjustment Seller shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied deliver to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason taxing authority their respective shares of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will , prorated as of Close of Escrow. Any reserves maintained by Seller with the Lender in connection with the Loan that have not been and are not subject to being called upon by the Lender either shall be refunded to the Seller by the Lender or credited to the Seller at the Closing.
6.7.2. All leasing commissions owing and tenant improvements to be made if possible as with respect to the Property in connection with transactions entered into prior to execution of this Agreement shall be paid by Seller, and Seller shall indemnify, defend and hold Buyer harmless from and against all leasing commission claims brought against Buyer or the Closing DateProperty arising therefrom. If any of such tenant improvements have not been completed prior to close of Escrow, in which event no proration will be made Seller shall credit Buyer at the Closing with respect the reasonable estimated cost of completing such tenant improvements. All leasing commissions for new Leases and for Lease renewals and expansion options executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bear to utility billsthe primary term of the new Lease, renewal or expansion.
6.7.3. Seller will be entitled agrees to indemnify, defend and hold Buyer harmless from and against any and all deposits presently in effect with the utility providersliabilities, damages, losses claims, demands, suits, and Purchaser will be obligated to make its own arrangements for judgments, of any deposits with kind or nature, including court costs and reasonable attorneys' fees (except those items which under the utility providers. The provisions terms of this Section 10.4(a) will survive Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the date of Closing for twelve (12) monthsand which are in any way related to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid 6.7.4. Buyer agrees to or collected by indemnify, defend and hold Seller and attributable to any period harmless from and after against any and all liabilities, damages, losses, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys' fees, brought by third parties and based on events occurring subsequent to the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after date of Closing and attributable which are in any way related to any period from the Property, and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentalsall expenses related thereto, additional rentalsincluding, percentage rentalsbut not limited to, escalation rentals (which include each Tenant's proration share of building operation and maintenance court costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyattorneys' fees.
Appears in 1 contract
Prorations. The following items relating to the Assets, the ownership of the PGE Colstrip Interests, and the operation of the Colstrip Facilities, will be allocated pro rata per diem for the tax year that includes the date of the Closing, with Seller liable for such items to the extent they are allocable to the period prior to the date of the Closing and Purchaser liable for such items to the extent they are allocable to periods beginning with and subsequent to the date of the Closing:
(a) Seller and Purchaser agree Property Taxes on or with respect to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowAssets.
(iib) Cash Security Deposits and any prepaid Rents, additional rents, together Taxes, to the extent normally adjusted in connection with interest required to be paid thereonsimilar transactions, and other items payable by Seller under the Real Property Leases and the Business Contracts.
(iiic) Utility The amount of rents, Taxes and charges payable for sewer, water, telephone, electricity and other utilities relating to the Real Property and the real property subject to the Real Property Leases.
(d) All other items (excluding other Taxes) normally adjusted in connection with similar transactions. Except as otherwise agreed by Sellerthe parties, including, without limitation, electricity, water charges the net amount of all such prorations will be settled and sewer charges. If there are meters paid on the Real Property, Seller will cause readings date of all said meters to be performed not more than five the Closing. At least ninety (590) days prior to the Closing Date, and Seller will provide Purchaser with a per diem adjustment shall be made for reasonably detailed schedule showing a calculation of the days between the meter reading date and estimated prorations as if the Closing Date based were occurring on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearsuch date. If the Closing Date shall occur before the tax a real estate Tax rate is fixed, the apportionment of real estate taxes Taxes shall be based upon the basis of the tax Tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property valuation and Improvements should be determined to be higher or lower than those that are apportioned, a new computation such Taxes shall be madereprorated upon the request of Seller, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shallon the one hand, at Closingor Purchaser, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at on the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Timeother hand, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and made within sixty (60) days after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If date that the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then become available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between . Seller and Purchaser. No prorations will Purchaser agree to furnish each other with such documents and other records as may be reasonably requested in order to confirm all adjustment and proration calculations made in relation pursuant to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months1.06.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Prorations. (a) Prior to the Closing, Seller shall determine the amounts of the prorations in accordance with this Agreement and notify Purchaser agree thereof. Purchaser shall review and approve such determination promptly and prior to adjustthe Closing, such 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, Purchaser and Seller shall each inform Title Company of such amounts. The following items shall be prorated as of the Closing Date and shall be deducted from or added to the Purchase Price, as appropriate, payable at the Closing:
(a) Non-delinquent general real estate taxes for the "PRORATION TIME")Property shall be prorated based on 110% of the most recent tax ▇▇▇▇(s) for the Property. As the Purchaser is a municipal corporation, the following (collectivelyproperty 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 Closing and prior years and obtain any reductions, certificates of error, objections or other refunds. Seller and Purchaser agree to re-prorate the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowtaxes for the year of Closing.
(iib) Cash Security Deposits All operating expenses of the Property which pertain to a period both prior to and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Sellerafter the Closing Date, including, without limitation, electricityutility charges (including, without limitation, water charges and sewer charges. If there are meters ) based on the Real Property, last ascertainable bills (if current bills are not available) if and to the extent that final meter readings cannot be made and separate bills issued to Seller will cause readings of all said meters to be performed not more than five (5) days and Purchaser by the utility suppliers prior to the Closing Date; provided, however, that Seller and a per diem adjustment shall be Purchaser hereby agree to cooperate to seek to have such final meter readings made for the days between the meter reading date prior to Closing and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted account party changed 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 effective as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Real Estate Sale Contract
Prorations. The Purchase Price set forth in Paragraph 3.0 is subject to the following adjustments and prorations:
9.1 Plus an amount which will credit SELLER for lease payments which have been paid in advance for time periods following Closing (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIMEPrepaid Leases"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowincluding those reflected on Exhibit 9.1.
(ii) Cash Security Deposits and 9.2 Minus the amounts which will credit BUYER for the following:
9.2.1 Any lease payments for which BUYER becomes obligated relating to any prepaid rents, together with interest required period of time prior to be paid thereonClosing.
(iii) Utility charges payable by Seller9.2.2 Any advertising services delivered after Closing for which SELLER has already billed or otherwise receives payment, includingincluding those reflected on Exhibit 9.2.2.
9.2.3 All items of income and expense listed below relating to the Assets will be prorated as of the Closing Date, without limitation, electricity, water charges with SELLER liable to the extent such items relate to any time period up to and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to including the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied BUYER liable to the latest assessed valuation. If, extent such items relate to periods on or subsequent to the Closing Date; including without limitation (a) personal property, real estate estate, occupancy and water taxes, if any, on or with respect to the Assets; (b) rent, taxes (and other items payable by reason of change in either assessment or rate or for SELLER under any other reason) for the Real Property and Improvements should be determined contract to be higher assigned to or lower than those assumed by BUYER; (c) the amount of sewer rents and charges for water, telephone, electricity and other utilities and fuel; and (d) all rentals that are apportioned, or would be payable or have accrued pursuant to lease provisions requiring lease payments based in whole or in part upon a new computation shall be made, percentage of advertising revenue ("Percentage Leases") and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser which involve periods prior to the Closing Date (for purposes of this Section 9.2.3, the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, Date shall be signed by Purchaser and Sellerthe end of any such periods for accrual purposes); (e) all items paid or payable on or after the Closing Date under any obligation specifically assumed to the extent not specifically referenced in clauses (a) - (d) above) which are normally prorated in connection with similar transactions. The proration shall be paid at Closing by Purchaser A list of Percentage Leases with the date of expiration is attached as Exhibit 9.2.3;
9.2.4 If current payments with respect 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 items to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items prorated pursuant to this Section 9.2 are not known as of ascertainable on or before the Closing Date, the prorations will such payments shall be made at Closing prorated on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇most recently ascertainable ▇▇▇▇ for utilities will therefor and shall be made if possible as of reprorated between SELLER and BUYER when the Closing Date, in which event no proration will be made at the Closing current bills with respect to utility bills. Seller will such items have been issued and a cash settlement shall be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(amade within thirty (30) will survive the Closing for twelve (12) monthsdays after notice by either party.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Outdoor Holdings Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”): real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with Section 10.4(bcollected Rentals (subject to the terms of Section10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents), together with interest required to be paid thereon.
(iii) Utility charges expenses under the Permitted Exceptions, expenses under Service Contracts assumed by Purchaser at Closing payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real owner of the Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Dateexpenses related to, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixedpayment obligations included in, the apportionment of real estate taxes shall be upon Outparcel Obligations, and payment rights included in the Outparcel Rights (in each case, on the basis of the tax rate for the preceding year applied to the latest assessed valuation. Ifa 365 day year, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closingactual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) at least two (2) Business Days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made made, if possible possible, as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before December 15, 2021 (herein, the “Final Proration Date”). The provisions of this Section 10.4(a10.4 (excluding subsection (e) which is governed by Section 3.2 above) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on until the Closing Statement for Final Proration Date has occurred, and in the prorated amount (as of the Proration Time) of all Rental previously paid event any items subject to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, hereunder are discovered prior to the extent Final Proration Date, the same exceeds any expense stop specified shall be promptly prorated by the parties in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyaccordance with the terms of this Section 10.4.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (HGR Liquidating Trust)
Prorations. (a) Seller and Purchaser agree to adjust, as prepare a proration schedule of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than adjustments five (5) business days prior to Closing. For purposes of calculating prorations, Purchaser shall be deemed to be in title to the Property, and therefore entitled to the income therefrom and responsible for the expenses thereof, for the entire day upon which the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearoccurs. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by All such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis number of days of the actual figures, year and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible month that shall have elapsed as of the Closing Date. If post-Closing adjustments are required under this Article 7, the amount of such prorations shall be adjusted in which event cash after Closing, as and when complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use their good faith and diligent efforts to make such adjustments no proration will be made at later than two hundred and seventy (270) days after Closing with respect to taxes and assessments and no later than thirty (30) days after the Closing with respect to utility billsother prorated amounts, or as soon as is reasonably practicable if and to the extent that the required final proration information is not available within such period. Seller Items of income and expense for the period prior to the Closing Date will be entitled to all deposits presently in effect with for the utility providers, account of Seller and Purchaser items of income and expense for the period on and after the Closing Date will be obligated for the account of Purchaser, all as determined by the accrual method of accounting, subject to make its own arrangements for any deposits with the utility providersprovisions hereof. Bills received after Closing that relate to expenses incurred, services performed or other amounts allocable to the period prior to the Closing Date shall be paid by Seller. Any amounts not so paid by Seller may be set off against amounts (if any) otherwise due Seller hereunder. The provisions obligations of the parties pursuant to this Section 10.4(a) will 7.1, including Sections 7.1.1 through 7.1.5, shall survive the Closing for twelve (12) monthsand shall not merge into any documents of conveyance delivered at Closing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Real Estate Contract (Industrial Property Trust Inc.)
Prorations. 12.1. All Rents (a) Seller exclusive of delinquent rents, but including prepaid rents), expenses, taxes, water and sewer rents, or similar charges of fees, are to be adjusted as of midnight of the day of Closing. Real and personal property taxes, general and special, are to be adjusted according to the certificate of taxes issued by the taxing authority, and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowshall assume charges therefor accruing from and after Closing.
(ii) Cash Security Deposits 12.2. All contracts and any prepaid rentsagreements relative to the operation, together with interest required servicing and/or maintenance of the Property to be paid thereon.
assigned to Purchaser or terminated (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on to the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to extent the term extends beyond the Closing Date, and a per diem adjustment ) shall be made for the days adjusted between the meter reading date and parties as of midnight of the Closing Date based on the most recent meter readingday of Closing.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa12.3. Purchaser shallshall have no obligation to collect any past-due rents except that Purchaser shall use commercially reasonable efforts to collect delinquent rents and promptly reimburse Seller for such past-due rents when, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time as and if collected,net of Closingcosts of collection. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period Monies received from and delinquent tenants after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser shall be applied as follows: (1) first, pro rata to Purchaser and Seller for the month the Closing takes place; (2) second, to Purchaser in an amount equal to all rentals due from such tenants accruing after Closing; (3) third, to costs of collection; and (4) fourth, to Seller (if the prorations result in a net credit an amount equal to Seller) or any remaining unpaid rental arrearages owed by such tenants to Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date.
12.4. At Closing, Seller shall deliver to Purchaser, or make appropriate adjustments for, all tenant security deposits and the prorations will be like, together with statutory or contractual interest owed to tenants, together with a detailed statement of the security deposits and all such accrued interest held for the account of each tenant. Purchaser shall receipt for the same and shall indemnify, defend and save Seller harmless from and against any claims relating to Purchaser's application or holding of such deposits and interest, which Seller has delivered or for which an adjustment has been made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period Closing,from and after the Proration TimeClosing. After the ClosingSeller shall indemnify, Seller will cause to be paid or turned over to defend and save Purchaser all Rental, if any, received by Seller after Closing and attributable to any period harmless from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenantagainst any claims relating to Seller's proration share application or holding of building operation such deposits and maintenance costs and expenses as provided for under the Lease, interest prior to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyClosing.
Appears in 1 contract
Prorations. (a) Purchaser and Seller and Purchaser agree to adjust, shall apportion as of 11:59 p.m. (Dallas, Texas time) on the day preceding the Closing Date (the "PRORATION TIME")Closing, the following items hereinafter set forth. Any errors or omissions in computing apportionments at Closing shall be promptly corrected. The obligations set forth in this Section 14 shall survive the Closing. The items to be adjusted are:
14.1.1. city, state, county, school, ad valorem taxes and other assessments for the fiscal year of sale; should such proration be inaccurate based on the actual millage set forth on the ad valorem tax b▇▇▇ if the current tax b▇▇▇ has not been received by the date of the Closing, either party may demand after the date of Closing, that such taxes and assessments be reprorated based on the actual b▇▇▇ and shall be entitled to receive upon demand, any amount owing to such party based on such reproration;
14.1.2. all base rent, percentage rent and additional rent and similar charges (collectively, the "PRORATION ITEMSRent"):
(i) Rentalsto the extent collected by Seller. To the extent that Seller receives any base rent, percentage rent and/or other additional rent or other charges after the Closing, the same shall be immediately applied in accordance with the terms of this Section 10.4(b14.1.2 and, if applicable, delivered to Purchaser. Any base rent, additional rent or other charges (other than percentage rent) below.received from a Tenant after the Closing shall be applied in the following order of priority:
(ii1) Cash Security Deposits and First, to any prepaid rents, together with interest required to be paid thereon.Rents (other than percentage rent) then owing for any calendar month or months following the calendar month in which the Closing occurred; and
(iii2) Utility charges payable Second, to the Rents (other than percentage rent) owing for the calendar month in which the Closing occurred; and
(3) Third, to Rents (other than percentage rent) owing for any calendar month or months preceding the calendar month in which the Closing occurred until the Tenant, under the applicable Lease, is current. Purchaser shall b▇▇▇ Tenants for all amounts due under their Leases for periods prior to the Closing [including, without limitation, base rent, additional rent, percentage rent or other Tenant “Charges” (hereinafter defined) or amounts for the year 2014] and shall use reasonable efforts to collect from Tenants all base rent, additional rent, percentage rent or other tenant “Charges” or amounts owing with respect to the period prior to the Closing (collectively, “Delinquent Rents”). To the extent Delinquent Rents are collected by SellerPurchaser, (subject to clauses 1, 2 and 3 above for all Rents), such amounts, net of reasonable proportionate costs of collection, including, without limitation, electricityreasonable attorney's fees, water charges shall be paid to Seller no later than thirty (30) days following the date on which such amounts have been received by Purchaser or its agent. Purchaser shall not be obligated to expend any funds or commence legal proceedings to collect any Delinquent Rents. Purchaser’s obligation to include such Delinquent Rents in b▇▇▇▇▇▇▇ and sewer charges. If there are meters use reasonable collection efforts with regard to the such Delinquent Rents shall expire on the Real Property, Seller will cause readings of all said meters to be performed not more than five date (5the “Expiration Date”) which is (i) one hundred and eighty (180) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and after the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts with regard to Delinquent Rents which Purchaser has elected not to assume.
(v) Real estate taxes were 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 owing by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Tenant as of the Closing DateDate and (ii) as of October 31, 2015 with regard to all other Delinquent Rents. In no event shall Seller commence any legal proceedings against any Tenant after the prorations will Closing with respect to any Delinquent Rents. At Closing, percentage rents shall be separately apportioned based on the percentage rents actually collected by Seller. Such apportionment shall be made at Closing separately for each Tenant who is obligated to pay percentage rent on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will fiscal year set forth in the Tenant's Lease for the determination and payment of percentage rent. Any percentage rent received from a Tenant after the Closing shall be made applied as follows: (a) Purchaser shall be entitled to a prorata portion of such percentage rent payment based on the basis number of days within the actual figures, applicable percentage rent fiscal year period that Purchaser owned the Project and (b) Seller shall be entitled to a final cash settlement will be made between prorata portion of such percentage rent payment based on the number of days within the applicable percentage rent period that Seller and Purchaserowned the Project. No prorations will be made in relation Purchaser covenants to insurance premiums, and Seller's insurance policies will not be assigned provide a copy to Purchaser. Final readings and final ▇Seller of all Tenant b▇▇▇▇▇▇▇ for utilities will year-end adjustments of common area maintenance, taxes and like items at least five (5) business days prior to the same being sent to the Tenant. Additionally, Purchaser shall send all such year-end b▇▇▇▇▇▇▇ to the Tenants within the time periods required by the Leases, but in all events on or before April 30, 2015. No later than July 31, 2015 (the "Final Adjustment Date"), Seller and Purchaser shall make a final adjustment in accordance with the provisions of this Section 14 of percentage rent and other items of additional rents for which final adjustments or prorations could not be determined at the Closing, if any, because of the lack of actual statements, bills or invoices for the current period, the year-end adjustment of common area maintenance, taxes and like items, the unavailability of final sales figures or amounts for percentage rent or any other reason. Any net adjustment in favor of Purchaser or Seller is to be paid in cash by the other no later than thirty (30) days after such final adjustment has been made. If any such information is still not available as of the Final Adjustment Date, the parties shall equitable estimate such missing amounts. Notwithstanding the foregoing, Seller and Purchaser shall remain obligated to pay to the other any Rents or "Charges" (hereinafter defined) received by Seller or Purchaser, as applicable, after the Final Adjustment Date that, pursuant to this Section 14, are to be credited or paid to Seller or Purchaser.
14.1.3. To the extent any Tenants pay monthly estimates of common area maintenance charges, central plant charges, taxes and similar expenses (collectively, "Charges") with an adjustment at the end of each fiscal year applicable to Charges, they shall be prorated in accordance with this Section. Until the adjustment described in this Section is made, all amounts received by Seller as interim payments of Charges before the Closing Date shall be retained by Seller, except that all interim payments received by either party for the month in which the Closing Date occurs shall be prorated as between Seller and Purchaser based upon the number of days in that month and the party receiving the interim payment shall remit to (if received on or after the Closing Date) or credit (if received before the Closing Date) the other party its proportionate share. All amounts received by Purchaser as interim payments of Charges on or after the Closing Date shall be retained by Purchaser until year end adjustment and determination of Seller's allocable share thereof except to the extent provided in Section 14.1.2 above. No later than the Final Adjustment Date, Seller's allocable share of actual Charges for Leases in effect as of the Closing Date shall be determined by multiplying the total payments due from each Tenant for such fiscal year (the sum of estimated payments plus or minus year-end adjustments) by a fraction, the numerator of which is Seller's actual cost of providing common area maintenance services and taxes (as the case may be) prior to the Closing Date (within that portion of the fiscal year in which the Closing Date occurs in which the applicable Lease is in effect), and the denominator of which is the cost of providing such services and paying such taxes for the entire fiscal year (or that portion of the fiscal year in which the applicable Lease is in effect). If, on the basis of amounts actually incurred and the estimated payments received by Seller prior to the Closing Date, Seller has retained amounts, in excess of its allocable share, it shall remit, within thirty (30) days after notice from Purchaser of the excess owed Purchaser, such excess to Purchaser. If, on the basis of the foregoing amounts, Seller has retained less than its allocable share, Purchaser shall remit, within thirty (30) days after notice from Seller of the amount owed Seller, such amount to Seller to the extent received from the Tenants of the Project. Additionally, Seller shall have the right to audit Purchaser's books with regard to the prorations set forth in this Section 14, which audit shall be conducted, if at all, within sixty (60) days after the completion of the final adjustment set forth above, and shall be made if possible at Purchaser's offices during normal business hours following not less than five (5) business days' prior written notice to Purchaser, and shall be at Seller's sole cost and expense.
14.1.4. All other income and all operating expenses of the Project for the assumed Contracts and public utility charges and charges and/or payments under the REAs with respect to the Project shall be prorated at the Closing effective as of the Closing Date, in which event no proration will and appropriate cash adjustments shall be made at by Purchaser and Seller. Seller and Purchaser shall cooperate to arrange for final utility readings as close to the Closing Date as possible and the issuance of a final b▇▇▇ to Seller with respect to utility bills. Purchaser being designated the billing party in lieu of Seller will for all utilities that may 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 name of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration TimeClosing Date. After Notwithstanding anything herein to the Closingcontrary, Seller will cause to be paid or turned over to Purchaser all Rentalthe management agreement and leasing agreement, if any, received by Seller after for the Project shall be terminated as of the Closing Date and there shall be no apportionment of any fees or charges thereunder.
14.1.5. At Closing, any prepaid Rents attributable to any period periods from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation Closing Date and maintenance costs and expenses as provided for unapplied security deposits under the LeaseLeases (together with any interest accrued thereon) shall be transferred to Purchaser either directly or by way of a credit in favor of Purchaser.
14.1.6. If, at Closing, the Property or any part thereof shall have been affected by an assessment or assessments, which are or may become payable in annual installments, of which the first installment is then a charge or lien, then for the purposes of this Agreement, all the unpaid installments of any such assessment due and payable in calendar years prior to the year in which the Closing occurs shall be paid by Seller and all installments becoming due and payable after the Closing shall be assumed and paid by Purchaser, except, however, that any installments which are due and payable in the calendar year in which the Closing occurs shall be adjusted pro rata. However, if such an assessment or assessments shall be required to be paid in one lump sum payment (and is not available to be paid in installments) and is due and payable on or before the Closing Date, then to the extent such assessment(s) is for improvements in place as of the date of this Agreement, then such assessment(s) shall be paid by Seller but if such assessment(s) is for improvements to be made subsequent to the date of Closing, then the same exceeds shall be paid by Purchaser.
14.1.7. To the extent at Closing there are any expense stop specified in such Leaseunpaid tenant improvement allowances or brokers' commissions for Leases entered into prior to the Effective Date ("Unpaid TI/LC"), retroactive rentalsSeller shall credit Purchaser the estimated amount of Unpaid TI/LC at Closing, all administrative chargesand Purchaser shall thereafter be obligated to pay directly to the applicable parties the applicable amounts from the Unpaid TI/LC credited to Purchaser. To the extent the credit provided to Purchaser at Closing for any Unpaid TI/LC shall be less than the actual amount of such Unpaid TI/LC, utility chargesSeller shall be obligated to pay Purchaser the difference promptly following the final determination of the Unpaid TI/LC. To the extent the credit provided to Purchaser at Closing for any Unpaid TI/LC is more than the actual amount of such Unpaid TI/LC, tenant or real propertyPurchaser shall be obligated to pay Seller the difference promptly following the final determination of the Unpaid TI/LC.
14.1.8. At the Closing, Purchaser shall receive a credit against the Purchase Price in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) with respect to Rent that would have been payable under the Lease with Chick-Fil-A had the obligation to begin paying Rent under that Lease been in effect on the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital - Retail Centers of America, Inc.)
Prorations. The following shall be adjusted between Seller and Buyer and shall be prorated as of 12:01 A.M. (Eastern Time) on the Closing Date with Buyer deemed the owner of the Property on the entire Closing Date:
(a) Seller Rents, common area charges, escalations and Purchaser agree to adjust, as of 11:59 p.m. other tenant reimbursements (other than security deposits and real property taxes reimburseable by tenants on any annual basis) payable under the day preceding the Closing Date (the "PRORATION TIME"), the following Existing Leases and New Leases (collectively, the "PRORATION ITEMSRENTS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to for the Property or portions thereof shall be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer chargesprorated as of the Closing Date on an accrual basis. If there any Rents are meters on delinquent as of the Closing Date (hereinafter called the "DELINQUENT RENTS"), then all Rents collected by Purchaser after the Closing shall be applied first to current Rents and then to Delinquent Rents, provided further that any Delinquent Rents paid by Tenants therefor and specifically identified as such by the Tenant shall be treated as a reimbursement of such charges regardless of the order of priority otherwise set forth in this SECTION 8.5(a). Buyer shall use reasonable efforts until December 31, 2004 to collect any Delinquent Rents, including any unpaid amounts previously billed for common area maintenance charges, Real PropertyEstate Taxes and insurance for the year ending December 31, Seller will cause readings of all said meters to be performed not more than five 2003 (5the "2003 RECONCILIATION PAYMENTS") days that accrued prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and . Seller agrees to forward any Rents received by it after the Closing Date based on to Buyer for application in accordance with the most recent meter readingprovisions hereof. The amount of any security deposits that are required to be returned to Tenants under Leases shall be credited against the Purchase Price (and Seller shall be entitled to retain such security deposits). Seller may not pursue litigation against any tenant for Delinquent Rents or 2003 Reconciliation Payments.
(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.
(vb) Real estate taxes due and payable Estate Taxes for the calendar yearthen current year relating to the Property shall be prorated as of the Closing Date. If the Closing Date shall occur before the tax rate is fixedfixed for the then current year, the apportionment of real estate taxes shall be upon made on the basis of the tax rate for the immediately preceding year applied to the latest assessed valuation. Ifvaluation of the Property, subsequent provided that, if the taxes actually due for the current year are more or less than the taxes for the preceding year, then within thirty (30) days after the issuance of the then current year's tax ▇▇▇▇, Seller and Buyer shall adjust the proration of such taxes and Seller or Buyer, as the case may be, shall pay to the Closing Date, real estate taxes (by reason other any amount required as a result of change in either assessment or rate or for any other reason) for such adjustment; this covenant shall not merge with the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation Deed delivered hereunder but 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 survive the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser All special taxes or assessments assessed prior to the Closing Date shall be paid by Seller, and those assessed after the Closing Date shall be paid by Buyer. Tax reimbursements from Tenants shall, upon receipt, be equitably prorated and reimbursed to Seller. Buyer shall make reasonable efforts to promptly collect all tax reimbursements from the Tenants.
(c) All other income from, and expenses of, the "CLOSING STATEMENT"). The Closing StatementProperty, once agreed uponincluding but not limited to public utility charges, interest, maintenance charges and service charges, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known prorated as of the Closing Date, except as set forth hereinbelow. To the prorations will extent that information for any such proration is not available at the Closing, the parties shall effect such proration within ninety (90) days after Closing. If, however, the proration of percentage rental from any Tenant or any other item of income or expense cannot be made at Closing within ninety (90) days after the Closing, then the proration of such item for each such Tenant shall be made within ten (10) days after the information relating to such item becomes available. Percentage rents for each Tenant Lease shall be prorated on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made number of days lapsed during the Tenant's percentage rent period as of the Closing Date and not 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 Selleramount of the Tenant's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible sales which accrued during such percentage rent period as of the Closing Date, in which event no proration will be made at . Within ninety (90) days after the Closing with respect Date, Seller agrees to utility bills. provide Buyer (i) a detailed operating expense statement for the actual costs incurred by Seller will be entitled for operating expenses and other pass-through items that are reimbursable to all deposits presently in effect with Seller, as landlord, by Tenants under the utility providersLeases (collectively, and Purchaser will be obligated to make its own arrangements the "REIMBURSEMENT EXPENSES") that covers the period from the beginning of the then current billing/reconciliation period for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive such party through the Closing for twelve Date together with copies of supporting invoices and other documentation supporting the expenses; and (12ii) 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 statement showing amounts actually collected by Seller and attributable to any as estimated payments or otherwise from the Tenants for the Reimbursement Expenses that covers the period from the beginning of the then current tenant billing/reconciliation period through the Closing Date. Buyer and after Seller agree that they will promptly, at the Proration Time. After end of the Closing, Seller will cause to be paid or turned over to Purchaser all Rentalcalendar year of the year in which the Closing occurs (or, if anythe current billing/reconciliation period ends on other than the end of the calendar year, received the end of the current applicable billing/reconciliation period), reconcile the Tenants' payments of the Reimbursement Expenses, and Buyer will ▇▇▇▇ the Tenants promptly for any amounts owed by the Tenants to landlord for payment of the Reimbursement Expenses. In reconciling the Tenants' payments of the Reimbursement Expenses, Buyer and Seller after agree to reallocate between them the total amount actually collected by Buyer and Seller for the Reimbursements Expenses for the calendar year (or other applicable billing/reconciliation period corresponding to the applicable period for reconciling the Reimbursement Expenses under the Leases) in which the Closing and attributable occurs based on the proportion that the actual costs incurred by each party for the Reimbursement Expenses bears to any period from and after the Proration Timetotal of the Reimbursement Expenses incurred by the parties combined. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration To the extent either party has collected more than its share of building operation and maintenance costs and expenses the Tenants' payment for the Reimbursement Expenses as provided for under determined by the Leasepreceding sentence, such party shall promptly remit such excess amount to the other party; PROVIDED, to the extent the same exceeds Tenants are due a refund for overpayment of the Reimbursement Expenses attributable to any expense stop specified such excess amount, Buyer may retain such excess amount for the purpose of reimbursing amounts due to Tenants in reconciling the such Lease)party's payment of the Reimbursement Expenses. After making the adjustments provided by the previous two sentences, retroactive rentalsBuyer will promptly remit Seller's pro rata share of any additional amounts actually collected from the Tenants as the result of reconciliation billing to the Tenants for the Reimbursement Expenses due landlord. In the event any amounts are owing to the Tenants, Buyer will notify Seller of its pro rata share of such amounts, with appropriate back-up, and Seller will promptly within thirty (30) days after receipt remit its share of such amounts to Buyer who will then reimburse the Tenants for any amounts owed by landlord. In reconciling the Tenants' payments and determining the pro rate share due to or from Seller, the total amount owing to the Tenants or the total amount collected from the Tenants, shall be multiplied by a fraction the numerator of which shall be the actual expenses incurred by Seller for the Reimbursement Expenses for the applicable billing/reconciliation period and the denominator of which will be the total of the Reimbursement Expenses incurred by both Buyer and Seller combined for the applicable tenant billing/reconciliation period for such expenses.
(d) Seller shall calculate the prorations contemplated by this SECTION 8.5 for Closing for Buyer's review and approval. Buyer and its representatives and auditors shall be afforded the opportunity to review all administrative chargesunderlying financial records and work papers pertaining to the preparation of Seller's proration statements, utility chargesand Seller will provide Buyer such backup information as is reasonably requested to verify Seller's proposed prorations.
(e) At the Closing, tenant Buyer shall pay the deed and/or other recordation fees and the cost of obtaining a Phase One or real propertyother environmental audit/engineering reports. Seller shall pay the documentary stamp tax on the transfer, deed stamp or other similar taxes or fees, the premium for the issuance by the Title Company of the Title Policy (except that the cost of any endorsements requested by Buyer's lender, shall be at Buyer's sole cost and expense) and all title search, underwriting, and other related fees and expenses charged by the Title Company and the cost of obtaining the Survey.
(f) Notwithstanding anything to the contrary herein, to the extent set forth in SECTION 8.6, Seller reserves the right to protest any Real Estate Taxes relating to the period prior to the Closing Date and to receive and retain any refunds on account of such Real Estate Taxes.
(g) The obligations of Seller and Buyer under this SECTION 8.5 shall survive for one (1) year from the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"“Proration Time”), the following (collectively, the "PRORATION ITEMS"“Proration Items”):
(i) Rentals, in accordance with Section 10.4(b) below.;
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility utility charges payable by Seller, AFE, PXURA, PXR, PXLA if any, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.;
(iii) all real estate ad valorem and personal property taxes, including, without limitation, all PILOT Payments (as such term is defined in the Schwab Lease) sewer rents and charges and other state, country, school district, municipal and other governmental and quasi-governmental taxes and charges, due and payable by Seller, AFE, PXURA, PXR, PXLA for the calendar year in which the Closing occurs;
(iv) Amounts payable under Purchaser’s Share of the Spectrasite Agreements Contribution Amount (as hereinafter defined) and amounts payable under the PILOT Service Contracts other than those Service Contracts which Purchaser has elected not to assume.Charge (as hereinafter defined), in accordance with Section 10.4(e) below;
(v) Real estate taxes due charges and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixedpayments under service contracts owed by Seller, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied AFE, PXURA, PXR, PXLA to the latest assessed valuation. If, subsequent extent that the charges and payment refer to periods including the Closing Date, real estate taxes ; and
(vi) such other items of income and expense as are typically prorated at closing similar to the transaction contemplated 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 Closingthis 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 the amounts of all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations being adjusted pursuant to this Agreement shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser two (2) days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration prorations being adjusted pursuant to this Agreement shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers, but Seller 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 Property. The provisions No later than September 30, 2005, Seller and Purchaser will jointly and in good faith prepare a final closing statement reasonably satisfactory in form and substance to Seller and Purchaser (the “Final Closing Statement) setting forth the final determination of this Section 10.4(a) will survive the Closing adjustments and prorations provided for twelve (12) monthsherein.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTAL" “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals means all Rent (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for such term is defined in the Schwab Lease) paid under the Schwab Lease, . Rental is “Delinquent” when it was due prior to the extent Closing Date, and payment thereof has not been made on or before the same exceeds Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any expense stop specified in Delinquent Rental, but Purchaser will have no liability for the failure to collect any such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyamounts and will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by any tenant. All sums collected by Purchaser from and after Closing from Schwab will be applied first to current amounts owed by Schwab to Purchaser and then to delinquencies owed by Schwab to PXLA. Any sums due Seller will be promptly remitted to Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 13.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding date prior the Closing Date, and credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. Seller shall use good faith efforts to deliver any information regarding special assessments to Purchaser within fifteen (15) days of Seller's receipt of such information. If the "PRORATION TIME")amount of any of the items to be prorated is not then ascertainable, the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to adjustments thereof shall be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Propertybasis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to the Properties, i.e., those agreements which Seller will cause readings has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties, but only to the extent the performance of all said meters to be performed not more than five (5) days such services occurs prior to the Closing Date, and a per diem adjustment . Seller shall deliver to Purchaser all such real estate tax consulting contracts within thirty (30) days of the date hereof. The fees or commissions payable to said consultants (if any) shall be made for treated as a portion of the days between real estate tax liability to be pro-rated as of the meter reading date Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date based so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement shall be deemed final as prorated on the Closing Date, except as to (a) delinquent rent referred to in Paragraph 13.2 below and (b) real and personal property taxes which shall be reprorated on December 1, 1997 based upon the then most recent meter readingrecently ascertainable tax information.
13.2. For a period of ninety (90) days following the Closing Date, all basic rent paid following the Closing Date by any tenant of the Properties who is indebted under a Lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. On the last business day of each month following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and the cost of performing Seller's audit. After the Closing, in no event shall Seller attempt to evict a tenant through any manner. Paragraph 13.2 of this Agreement shall survive the Closing and the delivery and recording of the deed.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(ivb) Amounts payable under The Seller stipulates that there is full and adequate consideration for the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assumelicense herein granted.
(vc) Real estate taxes Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and payable within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment use of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, such listings or advertising subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation then Purchaser shall be made, and Seller agrees responsible to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior same subsequent to the Closing Date (but no such payment shall accrue to the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed benefit of the Seller or constitute a credit against a debt otherwise owed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthssaid third party).
(be) Purchaser will receive a credit Purchaser's temporary license set forth in this paragraph shall expire on the Closing Statement date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the prorated amount owner of said rights a license fee equal to One Hundred Dollars (as $100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the Proration Time) of all Rental previously paid state where such Property is located to prevent such unauthorized use or collected to recover any damages authorized by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertylaws.
Appears in 1 contract
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 85)
Prorations. 4.8.1. All collected rents and other income (aincluding pet deposits and advance rentals) Seller and Purchaser agree all operating expenses with respect to adjustthe Property for the month in which the Closing occurs, and real estate and personal property taxes and other assessments with respect to the Property for the year in which Closing occurs, shall be prorated as of 11:59 p.m. on the close of business of the day immediately preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable Date. Rent collected by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters Purchaser on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to or after the Closing Date, and a per diem adjustment shall be made applied first to any current rent due, with any additional amount applied then to pay any arrearages (in inverse order/most recent arrearages paid first) and any such amounts owed to Seller to be remitted to Seller within ten (10) days of receipt. Purchaser shall include in Purchaser’s rent billing statements to tenants, for a period of one (1) year after the days between Closing, a statement indicating such tenant’s corresponding arrearages, if any, with respect to any unpaid rents attributable to the meter reading date and period prior to the Closing. All rent collected by the Seller prior to the Closing, for rental periods subsequent to the Closing Date (i.e., prepaid rent), shall be paid to Purchaser at Closing. If the amount of any item to be adjusted is not ascertainable on the Closing Date, the item shall be prorated by the Purchaser and Seller based on the most recent meter readingbest available information. Those items shall be reprorated as promptly after the Closing as possible. Any errors or omissions in computing the prorations at the Closing shall be corrected promptly. The obligation to reprorate shall survive for a period of eight (8) months after the Closing. Any payments due as a result of reproration shall be paid within ten (10) days of the reproration.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year4.8.2. If the Closing Date shall occur occurs before the tax rate ▇▇▇▇ for the year of closing is fixedavailable, the apportionment of real estate taxes shall be upon prorated using the basis taxes paid in the prior year. After the tax ▇▇▇▇ is available, the taxes shall be reprorated at the request of the Seller or Purchaser based on the tax rate ▇▇▇▇ for the preceding year applied to of closing. Any amounts due as a result of the latest assessed valuationreproration shall be paid within ten (10) days of the reproration. IfSpecial assessment liens, subsequent to the Closing Dateif any, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred charge or to be incurred in connection with any real estate tax appeals lien on the Property or that are pending due and payable at the time of ClosingClosing shall be paid by Seller.
4.8.3. To the extent possible, Purchaser shall be responsible for arranging all utility service and insurance coverage for the Project in its own name commencing as of 12:01 a.m. on the Closing Date. Seller will shall be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited responsible for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser utility charges accrued prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, and Seller shall be signed by Purchaser receive a refund of all utility deposits and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closinginsurance premiums. If the actual amounts of the Proration Items are a change in utility service cannot known as of be effected on the Closing Date, the prorations utility charges will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, estimated and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertySection 4.8.1.
Appears in 1 contract
Sources: Sale Agreement (America First Apartment Investors Inc)
Prorations. (a) Rents, including, without limitation, percentage rents, if any, and any additional charges and expenses payable by tenants under Leases (including, without limitation, the Rooftop Lease and the Parking Lease), all as and when actually collected, real property taxes and assessments due and payable in the year in which the closing occurs (without regard to the date levied, assessed or accrued and without regard to any fiscal year; and real property taxes, and assessments for annual taxes (but not special assessments) shall be prorated based upon 110% of the most recent ascertainable ▇▇▇▇ and promptly reprorated upon receipt of an actual ▇▇▇▇); water, sewer and utility charges; amounts payable under any Service Contracts or other agreements or documents; annual permits and/or inspection fees (calculated on the basis of the period covered); common area maintenance charges and amounts payable to the Hotel Owner or received from the Hotel Owner under the REA and other recorded documents; vending machine and paper recycling income, the current payment of the Nicollet Mall Special Assessment; and any other income and expenses of the operation and maintenance of the Property (including, without limitation, expenses prepaid by Seller and Purchaser agree with respect to adjustwhich Seller shall receive a credit at Closing in the amount of the prepaid portion thereof), shall all be prorated as of 11:59 p.m. on the day preceding immediately prior to Closing (i.e., Buyer is entitled to the income and responsible for the expenses of the day of Closing), on the basis of a three hundred sixty-five (365) day year; provided, however, that any real estate taxes, including the current payments of the Nicollet Mall Special Assessment, payable directly by tenants to the governing taxing authorities or reimbursable by tenants after Closing shall not be prorated. Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions, as provided in Section 7.3. All rents and other sums collected after the Closing Date shall be applied and paid as provided in this Section 8.5(a). Any payment received after Closing shall be deemed a payment due after the Closing until the tenant or other payor is current in its post-Closing obligations, and then such payments shall be paid to Seller to the extent of any rent or other sums owing to Seller for periods prior to Closing. Buyer shall use reasonable efforts to collect such rents and other sums owing to Seller. Seller retains the right to collect any such rents and other sums from tenants and other payors after Closing; provided, however, that Seller shall have no right to evict any tenant or to exercise any other landlord-tenant remedy other than to ▇▇▇ for collection. Without intending to limit the generality of the foregoing, Buyer and Seller acknowledge and agree that certain rental payments by the tenants under the Parking Lease and Rooftop Lease are collected monthly in arrears and, upon receipt of such payments after Closing, such sums shall be applied toward the period to which they properly pertain, and shall be prorated between Seller and Buyer, with the party receiving same promptly paying to the other party such other party’s share thereof. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the calendar year in which the Closing occurs shall be prepared by Buyer with the cooperation of Seller within ninety (90) days following the "PRORATION TIME"end of such year in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(a). For those Leases in which tenants pay a proportionate share of taxes (including the current payments of the Nicollet Mall Special Assessment), the following (collectivelyinsurance charges or other expenses over a base year amount or expense stop, the "PRORATION ITEMS"):
proration between the parties of the income received from tenants over such base year amount or expense stop shall be calculated based on the total amount of such expenses for the Property incurred by both Seller and Buyer for the entire calendar year, rather than on the amount of such expenses actually incurred by each party for such year, in order to enable the parties to determine if the base year amount or expense stop for such year is exceeded. Such income as so calculated shall be prorated between the parties based on the number of days each party owned the Property during such year and otherwise in accordance with this Section 8.5(a). By way of illustration but without limiting the foregoing, if: (i) Rentalsthe Closing was to occur on June 1, 2006, (ii) during Seller’s period of ownership of the Property during the year 2006 (151 days), Seller incurred expenses of $450,000, (iii) during Buyer’s period of ownership of the Property during the year 2006 (214 days), Buyer incurred expenses of $500,000, (iv) total expenses for such year recovered from tenants under Leases is $400,000 (e.g., $950,000 total expenses minus a total base year amount of $550,000), then Seller would be entitled to $165,479.45 of such income ($400,000/365 days = $1,095.89 per diem multiplied by 151 days) and Buyer would be entitled to $234,520.55 of such income ($1,095.89 per diem multiplied by 214 days), regardless of the actual amount of expenses actually incurred by each party (which would have instead resulted in Seller receiving $189,473.68 of such income and Buyer receiving $210,526.32 of such income). For Leases which do not have a base year amount or expense stop, the proration between the parties of income received from tenants from reconciliations of expenses under the Leases shall be calculated based on the expenses actually incurred by each party for such year and each party’s period of ownership of the Property, and otherwise in accordance with this Section 10.4(b8.5(a). In addition to the foregoing, on or before the end of the ninety (90) below.
(ii) Cash Security Deposits and any prepaid rentsday period described in this paragraph above, together Buyer also shall prepare with interest the cooperation of Seller all other annual reconciliations required to be paid thereon.
(iii) Utility charges payable by Seller, in connection with the Property including, without limitation, electricityannual reconciliations under the Parking Lease, water charges Rooftop Lease and sewer charges. If there are meters REA, as required thereby, and the parties shall reprorate the amounts payable thereunder (a) with respect to the REA, in the same manner as the reproration of rent under the Leases, based on the Real expenses actually incurred by Seller and Buyer under the REA for such year and each party’s respective period of ownership of the Property, and (b) with respect to the Parking Lease and the Rooftop Lease, based on the actual gross revenue of the tenants collected by the tenants during the Seller’s and Buyer’s respective periods of Ownership of the Property. Buyer shall promptly reimburse Seller will cause readings for Seller’s prorated share of all said meters expenses that are prepaid by Seller before Closing for which Buyer receives reimbursement from a third party after Closing. As an example (and without limitation), Seller incurs obligations each month and then bills the Hotel Owner for the Hotel Owner’s share; the Hotel Owner then reimburses Seller. In the event Buyer receives payment(s) from the Hotel Owner after Closing attributable to be performed not more than five expenses incurred and paid by Seller prior to Closing, Buyer shall promptly forward to Seller such amounts received from the Hotel Owner. The amount of any cash security deposits held by Seller under Leases (5) days plus any interest thereon accrued prior to the Closing Datedate of Closing, and a per diem adjustment if required by law or contract) shall be made credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits). Seller shall receive credits at Closing for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts amount of any utility or other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied deposits with respect to the latest assessed valuation. If, subsequent Property to the Closing Date, real estate taxes (by reason of change in either assessment extent such deposits are assignable to Buyer and are so assigned or rate or for any other reason) for the Real Property and Improvements should be determined credited to Buyer at Closing. Buyer shall cause all utilities to be higher or lower than those that are apportioned, a new computation shall be made, transferred into Buyer’s name and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending account at the time of Closing. As soon as reasonably practicable after Closing, Seller will be charged shall transfer to Buyer all non-cash security deposits and credited deliver to Buyer all necessary consents to such transfers. Between the date of Closing and until such transfer takes place, Seller agrees to hold any such non-cash security deposit in trust for the amounts benefit of all Buyer. Seller and Buyer hereby agree that if any of the Proration Items relating to the period up to the Proration Time, aforesaid prorations and Purchaser will credits cannot be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth calculated accurately on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (or in the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be case of rents or other charges that are paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) arrears or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing are otherwise not yet ascertainable or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known payable as of the Closing Date, then the prorations will same shall be made calculated as soon as reasonably practicable after the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the other party within thirty (30) days thereafter. Any amounts not paid within such thirty (30) day period shall bear interest from the date actually received by the payor until paid at the rate of ten percent (10%) per annum. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the payments received by such party from tenants and other payors from and after Closing on and to the basis manner in which such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice. Any tax refund received by Buyer or Seller after Closing (net of third party costs incurred in obtaining such refund) shall be paid to the party(ies) who previously paid or were responsible for such taxes, whether it be Seller, Buyer, or tenants under the Leases, and shall be prorated appropriately.
(b) The cost of the best evidence then availableTitle Policy shall be split equally between Buyer and Seller. Payment of all transfer taxes payable in connection with recording the deed shall be split equally between Buyer and Seller; thereafter, when actual figures are received, re-prorations will be made on the basis Buyer shall pay all other recording fees. Any closing escrow fees and other closing charges of the actual figures, and a final cash settlement will Title Company for the sale transactions shall be made split equally between Seller and PurchaserBuyer. No prorations Seller shall be solely responsible for any and all costs and expenses pertaining to the assumption of the First Mortgage Loan including, without limitation, loan title policies, lender’s legal fees, lender’s escrow and closing fees and all intangibles and mortgage taxes. The parties will execute and deliver any required transfer or other similar tax declarations to the appropriate governmental entity at Closing. At Closing, Seller shall reimburse Buyer for the cost of a Phase I environmental report in an amount not to exceed $3,000.00.
(c) The total annual percentage rent payable under each Lease for the lease year in which the Closing occurs shall be made in relation to insurance premiumsprorated between Seller and Buyer based solely on the respective number of days of ownership of the Property by Seller and Buyer during such year, regardless of what portion of sales occur during the different parts of such year. At Closing, the parties shall estimate the total percentage rent payable under each Lease for the applicable lease year based on the percentage rent paid under such Lease for the prior year, and Seller's insurance policies will not be assigned to PurchaserSeller shall receive a credit at Closing for its prorata share thereof. Final readings and Once the final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as amount of percentage rent is determined, the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providersparties shall reprorate, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. party owing the other shall promptly remit the amount owed no later than fifteen (15) days after the reproration is determined.
(d) The provisions of this Section 10.4(a) will 8.5 shall survive the Closing for twelve (12) monthsClosing.
(be) The obligations of Buyer under this Agreement are subject to satisfaction or written waiver of Buyer of each of the following conditions or requirements on or before Closing:
(1) Seller shall have delivered all documents required to be delivered at Closing under Article VIII;
(2) Buyer shall not have terminated this Agreement pursuant to Section 3.2, Section 4.1(c), Article VI or Section 8.4(c);
(3) The Title Policy shall have been issued and marked down to Closing, subject only to Conditions of Title in a so-called “New York” style closing;
(4) Purchaser will receive a credit on shall have received the Closing Statement for the prorated amount REA Estoppel; and
(as of the Proration Time5) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for The Lender under the LeaseFirst Mortgage Loan shall have approved, in writing, to the extent consent is required, the same exceeds assumption of the First Mortgage Loan, pursuant to documents reasonably acceptable to Seller, Buyer and their respective counsel, provided Buyer has performed all of its obligations hereunder with respect thereto. In the event that all of the foregoing provisions of this Section 8.5(e) are not satisfied in all material respects unless otherwise waiver by Buyer, and Seller does not request an adjournment of the Closing to comply such adjournment not to exceed ten (10) days, and Buyer elects in writing to terminate this Agreement, then the Deposit shall be promptly delivered to Buyer by Title Company and, upon receipt thereof by Buyer, neither party shall have any expense stop specified in such Lease)further claim against the other by reason of this Agreement, retroactive rentals, all administrative charges, utility charges, tenant or real propertyexcept as otherwise specifically provided herein.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Prorations. Rents actually collected for the calendar month in which the Closing occurs (a) Seller exclusive of Delinquent Rent, as hereinafter defined, but including prepaid rents covering a period subsequent to Closing); water and Purchaser agree other utility charges; fuels; prepaid revenues and expenses covering a period subsequent to adjust, Closing; real and personal property taxes (“Property Taxes”); and other similar revenue and expense items shall be adjusted ratably as of 11:59 p.m. P.M. Central Time on the day preceding the Closing Date (the "PRORATION TIME"“Proration Date”), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior credited or debited to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis balance of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, cash due at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged All regular and credited for the amounts of all of the Proration Items relating supplemental taxes and assessments attributable to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and the responsibility of Seller. The proration All regular and supplemental taxes and assessments attributable to the period after the Closing Date shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to responsibility of Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustment thereof shall be made at Closing on the basis of the best evidence then most recent ascertainable data. With respect to Property Taxes, if Closing occurs before the current fiscal year’s tax bills are available; thereafter, when actual figures are received, re-prorations the proration will be made on based upon the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇previous fiscal year’s tax ▇▇▇▇ and the proration shall be readjusted and settled by Seller and Purchaser within ten (10) business days after such tax ▇▇▇▇ is issued. If special assessments have been levied against the Property for utilities will improvements, then the amount of any installments which are attributable to periods on or prior to the Closing Date shall be made if possible as paid by the Seller; and the amount of installments which are attributable to periods after the Closing Date shall be paid by the Purchaser. If any charges, expenses or other items to be prorated hereunder are unavailable on the Closing Date, in which event no proration a readjustment will be made at within ten (10) business days following the Closing with respect to utility billsavailability of accurate bills and figures. Seller will be entitled shall instruct its property manager to all discontinue data entry operations in the on-site computer system for the Property (including making deposits presently in effect with of rental income) for the utility providersperiod subsequent to the close of business on December 23, 2011. Seller acknowledges that such discontinuance is intended to afford Seller and Purchaser will be obligated an opportunity to make its own arrangements for any deposits with coordinate the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as transition of the Proration Time) Property in anticipation of all Rental previously paid Closing and to or collected by complete work on prorations as set forth in this Agreement. Seller and attributable shall instruct its property manager to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over forward to Purchaser all Rental, if any, received by Seller or its designee final reports to facilitate transition planning and compilation of prorations as soon as practicable after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in discontinuing such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydata entry.
Appears in 1 contract
Sources: Agreement of Sale (Behringer Harvard Opportunity REIT II, Inc.)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); security deposits which are refundable under the leases regardless of the effect of Seller's bankruptcy or any foreclosure may have on such security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; fuels; operating expenses; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding later of the Closing Date or the actual date of the closing of this transaction (the "PRORATION TIMEProration Date"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior credited to the Closing Date, and a per diem adjustment shall be made for balance of the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for any period prior to and including the Closing Date shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Purchaser shall pay to Seller and Purchaseran amount equal to the amount such Post-Closing Receipt exceeds the amount currently due by the tenant paying such Post-Closing Receipt under its lease. No prorations will be made in relation Purchaser shall use its best efforts to insurance premiumscollect all amounts which, and Seller's insurance policies will upon collection, would constitute Post-Closing Receipts hereunder provided, however, that Purchaser shall not be assigned required to Purchaserinstigate litigation to collect Post-Closing Receipts. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect to utility billsthe terms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. Prepaid or accrued (aas the case may be) Seller and Purchaser agree interest on the Loan Documents, rents for the month of the Closing (exclusive of delinquent rents, but including prepaid rents); any previously paid signing bonus or similar payment relating to adjustany laundry room, cable, telephone or similar agreement in effect as of 11:59 p.m. the Closing, refundable security deposits with interest if required by local law (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); refundable and non-refundable pet and cleaning fees and deposits, water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes (as provided for in the next following sentence); and other similar items shall be adjusted ratably as of 12:01 A.M. on the day preceding the Closing Date (the "PRORATION TIMEProration Date"), and credited or debited to the balance of the cash due at Closing. Real property taxes shall be prorated based on the following (collectively, information in the "PRORATION ITEMS"):
following circumstances: (i) Rentalsif the current tax b▇▇▇ is available, in accordance with Section 10.4(b) below.
real property taxes shall be prorated based on that tax b▇▇▇; (ii) Cash Security Deposits if the tax b▇▇▇ for the current tax year is not available and any prepaid rentsthe assessed valuation for the Property for the current tax year is not available, together with interest required to real property taxes shall be paid thereon.
prorated based on 106% of the most recently available tax b▇▇▇; and (iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on if the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made tax b▇▇▇ for the days between current tax b▇▇▇ is not available but the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable assessed valuation for the calendar year. If Property for the Closing Date shall occur before the current tax rate year is fixedavailable, the apportionment of real estate property taxes shall be upon the basis prorated based on 101% of the tax rate for the preceding prior tax year applied to multiplied by the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) equalization factor for the Real Property and Improvements should be determined to be higher or lower than those that are apportionedprior tax year, a new computation shall be madeif applicable, and Seller agrees to pay Purchaser any increase shown multiplied by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited current assessed valuation for the amounts Property. In addition, Seller shall receive as a credit from Purchaser the amount of all of the Proration Items any escrow and reserve accounts relating to the period up Bonds and/or the Loan Documents (including, without limitation, debt service escrow accounts, tax escrow accounts, replacement reserves, repair reserves and insurance escrow accounts). Finally, Purchaser shall receive as a credit at Closing any amounts, if any, then owing by the Seller to the Proration TimeLender which are unrelated to the assumption of the Bonders by the Purchaser or the release of Seller under the Bonds. If the amount of any of the items to be prorated is not then ascertainable, the adjustment thereof shall be on the basis of the most recent ascertainable data. All prorations will be final except as to Delinquent Rents referred to in 13B below, and Purchaser will be charged and credited errors in calculation on the closing statement. If special assessments have been levied against the Property for all completed improvements, then the amount of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser any installments which are due prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if ; and the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment amount of the Purchase Price at the Closing. If the actual amounts of the Proration Items installments which are not known as of due after the Closing Date, Date shall be paid by the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ All assessments for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to incomplete improvements shall be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyPurchaser.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. (a) 5.4.1 The following shall be prorated between Seller and Purchaser agree to adjust, as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (on the "PRORATION TIME"), basis of the following (collectively, actual number of days elapsed over the "PRORATION ITEMS"applicable period):
(ia) RentalsAll real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges actually received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable security deposits (to the extent the foregoing were made by tenants under the Leases and are not applied or forfeited prior to the Closing Date in accordance with Section 10.4(bthe terms of the respective Leases) belowto Purchaser on the Closing Date. Seller shall deliver to Purchaser at Closing any tenant security deposits which are held in the form of letters of credit. Rents which are delinquent as of the Closing Date shall not be prorated on the Closing Date. Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Lease). To the extent Purchaser receives rents on or after the Closing Date, such payments shall be applied first toward the rents for the month in which the Closing occurs (and prorated between Purchaser and Seller accordingly), second, to the rents that shall then be due and payable to Purchaser for the period of time following the month in which Closing occurs, and third to any unpaid rents owed to Seller for the period of time prior to the month in which Closing occurs, with Seller’s share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser. Purchaser may not waive any delinquent rents or modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent, which consent may be given or withheld in Seller’s sole and absolute discretion. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to seek to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be required to litigate or declare a default under any Lease). With respect to delinquent rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Closing Date, Seller shall retain all rights relating thereto.
(iic) Cash Security Deposits All income and any prepaid rents, together with interest required operating expenses customarily apportioned between sellers and purchasers of real estate properties similar to be paid thereonthe Property and located in the same geographic area as the Property.
(iiid) Utility charges payable Charges and payments under Assumed Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the Assignment and Assumption of Contracts.
(e) Any fees or licenses prepaid by SellerSeller for which Purchaser will receive credit or benefit following Closing, including, without limitation, electricity, water charges and sewer charges. If there fees for licenses which are meters on the Real Property, Seller will cause readings of all said meters transferred to be performed not more than five (5) days prior to Purchaser at the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date annual permit and the Closing Date based on the most recent meter readinginspection fees.
(ivf) Amounts payable under the Spectrasite Agreements Utilities, including, without limitation, telephone, steam, electricity and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixedgas, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available; thereafter, when actual figures or if current meter readings are receivedavailable, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthssuch readings.
(bg) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assigned to Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After at the Closing, Seller will cause which shall be credited in their entirety to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals Seller.
(which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyh) Intentionally Deleted.
(i) Intentionally Deleted.
(j) Intentionally Deleted.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjust, Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes and similar items shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (paid by reason of change Purchaser and Assessments payable in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that installments which are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating attributable to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser time prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-most recent ascertainable data. All prorations will be made on final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the basis Closing Date by any tenant of the actual figuresProperty who is indebted under a lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, and a final cash settlement will be made between Seller and PurchaserPurchaser shall pay such Post-Closing Receipt to Seller, subject to proration for the month of Closing. No prorations will be made in relation Purchaser shall use its best efforts to insurance premiumscollect all amounts which, and Seller's insurance policies will not be assigned to Purchaserupon collection, would constitute Post-Closing Receipts hereunder. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 120 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with respect the terms hereof. Seller retains the right to utility billsconduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller will be entitled to all deposits presently in effect with pay the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree The following adjustments to adjust, the Purchase Price shall be made at the Closing by proration of the amounts as specified below as of 11:59 p.m. on of the day preceding date preceeding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):closing:
(ia) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits Ad valorem real estate and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior personal property taxes applicable to the Closing DateProperties for 1996, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not such apportionment to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Sellerprevious year's insurance policies will not be assigned to Purchaser. Final readings and final taxes unless the bill therefor is avail▇▇▇▇▇▇▇▇ . Once the taxes for utilities will be made if possible as of 1996 are established, upon written demand by either party, the Closing Date, parties shall promptly recompute such proration in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect accordance with the utility providerscurrent tax figures, and Purchaser will any excess payment or credit received by a party shall promptly be obligated reimbursed by it to make its own arrangements for the other party. Buyer shall have the right to contest the 1996 taxes and Seller shall provide Buyer with any deposits with the utility providersinformation in Seller's possession to assist such contest. The provisions for readjustment of this Section 10.4(a) will taxes are intended to and shall survive the Closing for twelve (12) monthsof this transaction.
(b) Purchaser will receive a credit on Water and sewer rentals, charges for the 10/29/96 6 supply of electricity, gas, trash collection and other utility and service charges.
(c) Charges and receipts under service, maintenance, and other like contracts affecting the Subject Property. The amount of charges paid by Seller prior to the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any a period from and after the Proration TimeClosing shall be credited to Seller. After The amount of receipts received prior to the Closing and attributable to a period after the Closing shall be credited to Buyer.
(d) All other proratable items with respect to the Subject Property, including, but not limited to, rents. Security deposits shall be transferred as an escrow item which shall not adjust the Purchase Price. Rents and reimbursements for periods prior to Closing which have not been collected as of Closing, shall be applied first to post-Closing date delinquencies, and then to pre-Closing date delinquencies.
(e) All items to be adjusted for which figures are not available at the Closing, including real estate taxes for the year 1996, will be adjusted, and payment therefor will be made by Seller will cause to be paid Buyer or turned over by Buyer to Purchaser all RentalSeller, as appropriate, as soon as figures are available after the Closing and, in the case of revenues, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertywhen they are collected.
Appears in 1 contract
Prorations. (a) Seller At each Closing, the following shall be apportioned and Purchaser agree to adjustadjusted between each Contributor, on the one hand, and the New Company, on the other hand, as of 11:59 p.m. on (Eastern Standard Time) as of the last day of the calendar month immediately preceding the month in which the applicable Closing Date occurs (the "PRORATION TIME"“Prorations Date”), with the following (collectively, Contributor responsible for matters relating to its Contributed Properties for the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days period prior to the Closing Prorations Date, and a per diem adjustment shall be made the New Company responsible for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items matters relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period such Contributed Properties from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller Prorations Date, except as otherwise specified:
(a) rents and submitted to Purchaser prior additional rents under or in respect of Tenant Leases, as, when and to the Closing Date (the "CLOSING STATEMENT"). The Closing Statementextent actually collected, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made period for which payable under the applicable Tenant Lease and apportioned on the basis of the actual figuresnumber of days in such period, along with security, pet, key and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of any other deposits held by the Closing Date, in which event no proration will be made at landlord under the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.Tenant Leases;
(b) Purchaser will receive any real property taxes, water and sewer rents and charges; any tax credit or refund collected as a credit result of any real property tax appeal; vault taxes or charges, elevator inspection charges and other like and similar municipal taxes and charges, each on the basis of the fiscal year or other period for which assessed, and apportioned upon the basis of the actual number of days in such year or period. If actual tax bills are not available, taxes shall be apportioned based on the most recent tax bills available, with a post-Closing Statement adjustment to be made as soon as tax bills for the prorated amount fiscal year during which the Closing occurs become available;
(as c) subject to Section 4.5, electric, gas, steam and other public utility charges for services furnished to the Contributed Properties, on the basis of the Proration Timeactual number of days in any period covered by the charge being apportioned (except that no apportionment shall be made for any of such items as are furnished and charged by the applicable utility company directly to tenants under the Tenant Leases);
(d) all charges under the Contracts, on the basis of the actual number of days in any period covered by the charge being apportioned. The Tarragon Contributors with respect to the Tarragon Properties, and the Northland Contributors with respect to the Northland Properties shall bear the cost of all Rental previously paid to installments or collected by Seller amounts of items which are being apportioned under this Section which became due and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, payable prior to the extent Prorations Date; and
(e) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyContributed Properties.
Appears in 1 contract
Prorations. All revenues, income, receiv- a▇▇▇▇, costs, expenses and payables of the Property shall be apportioned equitably between the parties as of Closing on the basis of the actual number of days in a particular month, and with respect to the items enumerated below where a particular manner of apportionment is provided, then apportionment of such item shall be made in such manner. The obligation to make apportionments shall survive Closing. Without limitation, the following items shall be so apportioned:
(ai) Seller Monthly rents and Purchaser agree to adjustpercentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, as of 11:59 p.m. on and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the day preceding collection thereof in good faith after the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest but Purchaser shall not be required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer chargeslitigate or declare a default in any Tenant Lease). If there are meters To the extent Purchaser receives amounts on the Real Property, Seller will cause readings account of all said meters to be performed not more than five (5) days prior to Tenant Leases on or after the Closing Date, and a per diem adjustment such payments shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which applied first toward then current rent owed to Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with the applicable Tenant Lease for which such payments are received, and any real estate tax appeals that are pending at excess monies received shall be applied toward the time payment of Closingany delinquent rents, with Seller's share thereof being promptly delivered to Seller. Purchaser may not waive any delinquent rents nor modify a Tenant Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive its share of charges or amounts without first obtaining Seller's written consent. Seller will hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not be charged require to litigate or declare a default in any Lease). With respect to delinquent rents and credited for the any other amounts or other rights of all any kind respecting tenants who are no longer tenants of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Property as of the Closing Date, Seller shall retain all rights relating thereto.
(ii) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the prorations will earliest permitted payment, based upon the latest previous tax levies. Such items shall be reapportioned between Seller and Purchaser if current tax rates differ from the latest previous tax rates as soon as the same are known. Seller agrees that to the extent any additional taxes, assessments or levies are imposed, assessed or levied against the Property, or any portion thereof, the Seller or the Purchaser at any time subsequent to Closing but with reference to any period prior thereto during Seller's ownership thereof, Seller shall promptly pay to Purchaser an amount equal to such additional assessments or levies. Similarly, if tax refunds become payable for periods during Seller's ownership of the Property, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Seller) shall be promptly paid over to Seller. In the event that any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installment due after the Closing Date). In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made at or lease entered into on or after the Closing Date.
(iii) Transferable annual permits, licenses, and/or inspection fees, if any, on the basis of the best evidence then available; thereafterduration of the same;
(iv) Security Deposits, when actual figures are receivedplus accrued interest, re-prorations will if any, payable thereon to tenants which have not been validly applied by Seller to a prior default by any of such tenants, and any other deposits and prepaid rent, shall be made credited (or assigned) to Purchaser;
(v) Subject to the provisions of Paragraph 12(c) below, utility charges levied against Seller or the Property, and Purchaser shall transfer all such utility services to its name and account immediately upon Closing;
(vi) Service Contracts on the basis of the actual figurescharge or premium for the period involved;
(vii) Tenant improvements costs and leasing commissions for leases signed after the November 1, 1996 shall be paid by Purchaser if approved by Purchaser in accordance with Paragraphs 7(a) and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months7(b).
(bviii) Purchaser will receive a credit on All other operating expenses incurred in the Closing Statement for the prorated amount (as management and operation of the Proration Time) Property. No insurance policies shall be assigned hereunder, and accordingly there shall be no proration of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyinsurance premiums.
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree to adjustIt is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to operate the Property from and after Closing and, pursuant to said Property Lease, shall be entitled to all revenues generated from, and shall be obligated to pay all taxes and expenses (including all rental due under the Ground Lease) relating to, the Property from and after Closing and during the entire term of 11:59 p.m. on the day preceding Property Lease (subject, however, to payment of the various rentals otherwise described in said Property Lease). As a result of the foregoing, there shall be no proration, at Closing, of any revenue, tax or expense items hereunder. However, for purposes of determining "Additional Rent" due and owing under the Property Lease for the year in which the Closing Date (the "PRORATION TIME"), the following (collectivelyi.e., the "PRORATION ITEMS"):Commencement Date" under the Property Lease) occurs, the parties agree as follows:
(ia) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required All revenue received by Seller that relates to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to time periods after the Closing Date, including, but not limited to, deposits, advance registration and a per diem adjustment other fees previously received by Seller, rents, membership dues, initiation fees, prepaid greens fees, coupon book receipts, gift certificates, discount certificates, locker rentals, tournament fees, tradeouts, function deposits, and bag storage charges, shall be made for deemed "Golf Course Revenue" or "Other Revenue" (as the days between case may be) under the meter reading date and Property Lease, attributable to periods following the Closing Commencement Date based of the Property Lease term on the most recent meter readingan accrual basis in accordance with generally accepted accounting principles.
(ivb) Amounts payable under the Spectrasite Agreements All of Seller's receivables, unreceived revenue and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items deferred income relating to the period up to the Proration Time, and Purchaser will be charged and credited for all operation of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser Property prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed uponand not otherwise provided for in this Section 10.2 or elsewhere in this Agreement, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to remain the property of Seller (if the prorations result in a net credit to Seller"SELLER'S RECEIVABLES") or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will shall not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of deemed "Golf Course Revenue" or "Other Revenue" under the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and Property Lease attributable to any period falling within the term of the Property Lease. It is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to attempt to collect Seller's Receivables following the Closing Date. Regardless of payee designation, all payments received following the Closing Date by the Lessee, as lessee under the Property Lease, from and after the Proration Time. After the Closing, Seller will cause any club member who has an outstanding Seller's Receivables shall be presumed to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, payments in respect to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative currently due charges, utility charges, tenant or real propertyand thereafter to outstanding Seller's Receivables in the inverse order of maturity.
Appears in 1 contract
Prorations. (a) Seller As between Assignee and Purchaser agree Tenant, revenues and expenses, utility charges for the billing period in which the Transfer Date occurs, real and personal property taxes, certain prepaid expenses and other related items of revenue or expense attributable to adjust, the Facility shall be prorated between Tenant and Assignee as of 11:59 p.m. the Transfer Date. In general, such prorations shall be made so that as between Assignee and Tenant, Tenant shall be reimbursed for prepaid expense items to the extent that the same are attributable to periods after the Transfer Date and Tenant shall remain responsible for the payment as and when due of unpaid expenses to the extent that the same are attributable to periods prior to the Transfer Date. The intent of this provision shall be implemented by Assignee remitting to Tenant any invoices which describe goods or services provided to the Facility before the Transfer Date and by Assignee assuming responsibility for the payment of any invoices which describe goods or services provided to the Facility on and after the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowTransfer Date.
(iib) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by All such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of actual days elapsed in the actual figuresrelevant accounting or revenue period and shall be based on the most recent information available to Tenant. Utility charges which are not metered and read on the Transfer Date shall be estimated based on prior charges, and shall be re-prorated upon receipt of statements therefor as of the Transfer Date.
(c) All amounts which are subject to proration under the terms of this Agreement and which require adjustment after the Transfer Date shall be settled within thirty (30) days after the Transfer Date or, in the event the information necessary for such adjustment is not available within said thirty (30) day period, then within ten (10) business days of receipt of information by either party necessary to settle the amounts subject to proration.
(d) Within five (5) business days after the Transfer Date, Assignee shall remit to Tenant a final cash settlement will be made between Seller and Purchaser. No prorations will be made cashiers check in relation an amount equal to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇any ▇▇▇▇▇ for utilities will be made if possible cash (as compared to resident funds) maintained at the Facility by Tenant as of the Closing Transfer Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"“Proration Time”), the following (collectively, the "PRORATION ITEMS"“Proration Items”):
(i) Rentals, in accordance with Section 10.4(b) belowbelow and other income from the Property.
(ii) Cash Security Deposits and any Any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter readingTaxes.
(iv) Amounts payable under All operating expenses paid by the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis owner of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of ClosingProperty. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTAL" “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by the Tenant under the Leases or from other occupants or users of the Property. Rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Purchaser agrees to use commercially reasonable efforts with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by Tenant. All sums collected by Purchaser from and after Closing from Tenant (excluding tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(c) below) will be applied first to current amounts owed by the Tenant to Purchaser and then to delinquencies owed by Tenant to Seller. Any sums due Seller will be promptly remitted to Seller. Seller shall have no rights after Closing to attempt to collect any amounts due under the Lease or to otherwise pursue Tenant.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. (a) Seller and Purchaser agree Notwithstanding anything contained in the Agreement to adjustthe contrary, as of 11:59 p.m. on Buyer shall receive a credit against the day preceding the Purchase Price at Closing Date (the "PRORATION TIME"), for the following (collectively, amounts:
9.1 the "PRORATION ITEMS"):
(i) Rentals, total amount of all security deposits provided for in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rentsthe Leases, together with interest thereon in the amounts set forth in or as required to be accrued, as applicable, under the 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 provided for in any Lease which have not been collected by Seller but as 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;
(iii) Utility charges payable by Seller9.2 any prepaid rents and/or free rental periods under the Leases attributable to the period after the Closing, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five : (5i) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (rent prepaid by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇E. ▇▇▇▇▇▇ & Associates, Inc. ("S▇▇▇▇▇") under the certain Lease dated August 4, 1997 between Center Office and S▇▇▇▇▇ for utilities will be made if possible 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 Center Retail's 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 the Closing Date, in which event no proration will be made at the Closing ;
9.4 $27,702.00 with respect to utility bills. Seller will be entitled Center Office's obligation under EXHIBIT D of the Dialysis Centers Lease to all deposits presently in effect with the utility providersreimburse Dialysis Centers for tenant improvements, 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 (which reimbursement has not been paid by Center Office as of the Proration Time) Closing Date;
9.5 $47,073.75 with respect to the Landscape Obligation; and
9.6 $300,000.00 with respect to payment of the "Product Improvement Plan" imposed by Radisson Hotels International Inc. in connection with the Assignment and Assumption of 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 Rental previously paid obligations of Seller to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, Buyer with respect to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertymatters set forth therein.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Real Property (Arvida JMB Partners L P)
Prorations. (a) Seller and Purchaser agree Subject to adjustthe terms of this Section 9.1, at or prior to the Closing, the parties shall prorate, as of 11:59 p.m. on the day date immediately preceding the Closing Date (the "PRORATION TIME"“Prorations Time”), all income and expenses with respect to the following (collectively, Property and payable to or by the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by SellerLLC, including, without limitation, electricity, water charges and sewer charges. If there are meters : (i) all real property taxes on the Real Property, Seller will cause readings basis of all said meters to be performed not more than five the fiscal period for which assessed (5) days prior to if the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based 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 based on the tax rate for the preceding year period applied to the latest assessed valuation. If); (ii) rents and other tenant payments and tenant reimbursement, subsequent if any, received under the Leases; (iii) charges for water, sewer, electricity, gas, fuel, steam, vault taxes and other utility charges (other than those charges required to be paid directly to the Closing Date, real estate taxes (utility company by reason Tenant) all 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 which shall be maderead promptly before the Closing; (iv) periodic fees for licenses, permits or other authorizations with respect to the Property; and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume (v) all expenses incurred or to be incurred other items customarily prorated in connection with any real estate transactions of the type contemplated by this Agreement. A further proration shall be made between the parties when the tax appeals that are pending at b▇▇▇ for the time of Closingtax 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 be charged 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 net proceeds of the hypothetical sale of the Property for $362,000,000. Accordingly, for purposes of adjusting the Purchase Price between Purchaser, in its capacity as purchaser of Seller’s LLC Interest, and Seller, in its capacity as seller of 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 amounts items of all of the Proration Items relating to the period up to income and expenses prorated or adjusted hereunder for periods on or before the Proration Time, and Purchaser will be charged and credited for all shall bear 66 2/3% of the Proration Items relating to amount debited hereunder, and shall receive 66 2/3% of the period from amounts credited hereunder for the items of income and expense prorated or adjusted hereunder for periods after the Proration Prorations Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Agreement (Overseas Partners LTD)
Prorations. 15.1 Water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (a) i.e. adjusted for all tenants' liabilities, if any, for such items); tenant reimbursement obligations for operating expenses paid by Seller and Purchaser agree to adjust, as of 11:59 p.m. on for the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days period prior to the Closing Date, and a per diem adjustment shall be made ; unpaid operating expenses for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date prorated on a "net" basis, as set forth above; and all other items of expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing Date (the "CLOSING STATEMENTProration Date"). The Closing Statement, once agreed upon, Seller shall be signed entitled to a credit for all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser and Sellershall make its own replacement deposits for utilities as may be required by the respective utilities involved. The proration Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due prior to the Closing Date shall be paid at by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. If any ongoing real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the conte▇▇, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All other prorations will be made final except as 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 as of the Proration Date. To the extent the Leases provide for the adjustment of 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 basis amount actually collected from tenants. Notwithstanding the foregoing, Purchaser shall not be obligated to credit Seller at Closing for any Additional Rent due from Corestates Bank in excess of $20,000 and any amount due from Corestates Bank in excess of $20,000 shall be escrowed and disbursed in the same manner provided in the foregoing sentence with respect to Additional Rent due from other tenants. Purchaser shall deliver to each tenant of the best evidence then available; thereafterProperty (with a copy of each to Seller) a final reconciliation of Additional Rent due for calendar year 1996 on or before March 15, when actual figures are received1996. Purchaser shall use reasonable efforts (without any obligation to terminate leases or initiate lawsuits) to collect such Additional Rent from such tenants. On or before June 1, re-prorations will be made on the basis 1996, Purchaser shall provide Seller with a reconciliation of the actual figuresamount of all Additional Rent collected from 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 a final cash settlement will Lease for basic rent for any period prior to the Proration Date in an amount greater than the amount of all current basic rent owed by said tenant to Purchaser shall be made between Seller and Purchaserdeemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. No prorations will be made in relation Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to insurance premiumsSeller. Purchaser shall use its reasonable, and Seller's insurance policies will not be assigned good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of Within 180 days after the Closing Date, in which event no proration will be made at Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 150 days after the Closing with respect Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to utility bills. Seller will be entitled any Post-Closing Receipts owing to all deposits presently Seller and not previously delivered to Seller in effect accordance with the utility providersterms 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, and Purchaser will be obligated shall pay to make its own arrangements for any deposits with the utility providersSeller said additional Post-Closing Receipts. The provisions This Paragraph 15.3 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) monthsand the delivery and recording of the Deed.
(b) Purchaser will receive a credit on 15.4 All refunds in connection with any ongoing real estate tax protests for the Property initiated by Seller prior to the Closing Statement for shall remain the prorated amount (as property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the Proration Time) of all Rental previously event any such refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees, at no cost or collected expense to Purchaser, to execute any documents reasonably requested by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in connection with such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertytax protests.
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"“Proration Time”), the following (collectively, the "PRORATION ITEMS"“Proration Items”):
(i) RentalsRents, in accordance with Section 10.4(b) below.
(ii) Cash Seller shall credit Purchaser at Closing with all cash Security Deposits and any prepaid rents, together with any interest required to be paid to the Tenant thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem estimated 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 assumeContracts.
(v) Real All real estate and personal property taxes due and payable assessments, prorated for the calendar year. If the Closing Date shall occur before the tax rate is fixedperiod for which such taxes and assessments are assessed, the apportionment regardless of real estate taxes shall be upon when payable, on the basis of the number of days in such period the Property will have been owned by Seller and Purchaser, respectively. If the current tax rate ▇▇▇▇ is not available at Closing, then the proration shall be made on the 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 preceding fiscal year applied 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 latest assessed valuationperiod before the date of Closing, and Purchaser shall pay the taxes and assessments prior to the same becoming delinquent. 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. 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 the Closing Date and Purchaser shall retain all rights with respect to any refund of taxes 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 or 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 from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTAL" “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's ’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by 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 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 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 month in which the Closing occurs, then to current amounts owned by such Tenant to Purchaser and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 12.1. Rents (aexclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; 1995 (if not paid) Seller and Purchaser agree 1996 real and personal property taxes and assessments; accrued but unpaid interest on the outstanding indebtedness owed to adjust, the Lender and other similar items shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the day preceding Closing Date. Assessments payable in installments which are due subsequent to the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to shall be paid thereon.
(iii) Utility charges payable by SellerPurchaser. In addition, Purchaser shall give Seller a credit at Closing for all escrows, reserves, and holdbacks held by the Lender under the Loan Documents, including, without limitation, electricityany real estate tax reserves, water charges insurance reserves, debt service reserves, and sewer chargescapital replacement reserves, subject to the provisions of Paragraph 12.2 below. If there are meters on After the Real PropertyClosing, the Seller will cause readings 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 were delinquent as of all said meters to be performed not more than five the Closing Date. Except as otherwise specified in Paragraph 12.2 below, thirty (530) days prior to after the Closing Date, Seller and Purchaser shall make a per diem adjustment shall be made for the days between the meter reading date and final reconciliation of all Closing prorations.
12.2. All basic rent paid to Purchaser, its Affiliates, or their Representatives on or after 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 by any Tenant of the tax rate Property who is indebted under a lease for the preceding year applied basic rent attributable to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date 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 (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed 10) days following each receipt by Purchaser and of a Seller Receipt, Purchaser shall pay such Seller Receipt to Seller. The proration Purchaser shall be paid at Closing by Purchaser use all commercially reasonable efforts to collect any amounts which, upon collection, would constitute 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 ClosingReceipts hereunder. If the actual amounts of the Proration Items are not known as of Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Seller Receipts through the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of first 90 days after the Closing Date. Upon the delivery of the Seller Receipts reconciliation, Purchaser shall deliver to Seller any Seller Receipts owing to Seller and not previously delivered to Seller in which event no proration will be made at accordance with the Closing with respect to utility billsterms hereof. Seller will be entitled retains the right to all deposits presently in effect with conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the utility providersaccuracy of the Seller Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Seller Receipts and Purchaser will be obligated to make its own arrangements for any deposits with the utility providerscost of performing Seller's audit. The provisions of this Section 10.4(a) will This Paragraph 12.2 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses; real and personal property taxes; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the tax rate most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below and except for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (which will be reprorated upon receipt of actual bills. If any unit has remained vacant for more than 9 days without being made "rent ready", Seller will give Purchaser a credit of $250 for such unit for cleaning, painting touch-up, carpet shampoo and minor appliance repair. If such a unit requires carpet replacement or other renovation not covered by reason the preceding sentence, Purchaser and Seller will agree on the amount of change the credit to Purchaser. If Seller receives a credit for a utility deposit, Seller shall execute an assignment thereof substantially in either assessment or rate or the form attached as Exhibit N.
12.2. All monies received after Closing by Purchaser from any tenant of the Property who is indebted under a lease for rent for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (will first be applied to rent or other charges currently due to Purchaser under the "CLOSING STATEMENT")applicable lease. The Closing Statement, once agreed upon, Any balance remaining after the application of such monies to current rent shall be signed deemed a "Post-Closing Receipt", but only to the extent such pre-closing indebtedness has not been paid in full. Within ten (10) days following each receipt by Purchaser and of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. The proration Purchaser shall be paid at use good faith efforts to collect all amounts which, upon collection, would constitute Post-Closing by Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Paragraph 12.2 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
12.3. At Closing, One Hundred Thousand and No/100 Dollars (if $100,000.00) of the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment balance of the Purchase Price at shall be deposited in escrow pursuant to the Closing. If the actual amounts terms of the Proration Items are Escrow Agreement and shall constitute the "Holdback Escrow Funds". Seller and Purchaser shall set forth the outstanding rents and all other monthly payments due and payable to Purchaser (i.e. those allocable to the period of ownership of the Property by Purchaser) under the Leases for the month in which the Closing occurs that have not known already been credited to Purchaser at Closing (the "Outstanding Rents Due") in a schedule to be created and agreed upon within three (3) business days after the date of Closing (the "Closing Rent Schedule"). Upon Closing, Purchaser shall use its best efforts to collect the Outstanding Rents Due. Purchaser shall also use commercially reasonable efforts to collect all rents and other monthly fees due under the Leases (in accordance with the various terms of the Leases) for the month following the month in which the Closing occurs. On or before 5:01 p.m. Chicago time on July 31, 1997, Purchaser shall deliver to Escrow Agent and Seller a schedule (the "Final Closing Rent Schedule") that accurately shows: (a) the total rents and all other monthly payments due and payable under the Leases for the month following the month in which the Closing occurs (the "Second Month Outstanding Rents Due"); (b) all Second Month Outstanding Rents Due actually collected by Purchaser as of the date of the Final Closing DateSchedule (the "Second Month Rents Actually Collected"); and (c) the difference between the Second Month Outstanding Rents Due and the Second Month Rents Actually Collected (the "Second Month Deficiencies"). In addition to setting forth the Second Month Deficiencies, the prorations will be made Final Closing Rent Schedule shall also set forth the Outstanding Rents Due that have still not been collected by Purchaser, together with appropriate documentation supporting any such amounts. The sum of (a) the Outstanding Rents Due which are still outstanding at Closing on the basis time of the best evidence then available; thereafter, when actual figures are received, re-prorations Final Closing Schedule and (b) the Second Month Deficiencies shall be referred to as the "Rent Deficiency Sum". This Rent Deficiency Sum will be made on the basis represent Purchaser's opinion of the actual figures, amount owing to it under the terms of this Paragraph 12.3 and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation the Final Closing Rent Schedule shall specifically instruct the Escrow Agent to insurance premiums, and Seller's insurance policies will not be assigned disburse an amount equal to the Rent Deficiency Sum to Purchaser. Seller shall have ten (10) days following receipt of the Final readings Closing Rent Schedule to give Purchaser and final ▇▇▇Escrow Agent written notice of any objection to the Final Closing Rent Schedule. If Seller delivers a timely notice of objection then Seller and Purchaser shall work together in good faith to agree upon the Final Closing Rent Schedule (including, but not limited to, the Rent Deficiency Sum) , at which time Seller and Purchaser shall ▇▇▇▇▇ for utilities will be made if possible as ▇ ▇▇▇nt letter of instruction to Escrow Agent setting forth the terms of the escrow disbursement. If Seller does not reply to the Final Closing Date, 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 which event no proration will be made at accordance with the terms of the Escrow Agreement. Paragraph 12.3 of this Agreement shall survive the Closing with respect 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 utility bills. Seller will be entitled to all deposits presently in effect with the utility providersParagraph 12.3 above ("Post-Escrow Receipts"), and then Purchaser will shall be obligated to make its own arrangements deliver any such Post-Escrow Receipts to Seller (along with a statement describing the same) within ten (10) days of Purchaser's receipt of the same. Seller shall retain the right to conduct an audit of Purchaser's financial records, at no cost to Purchaser, for any deposits with a period of five (5) months from the utility providersclose of escrow in order to verify, and only to the extent necessary to so verify, the information discussed in this Paragraph 12. The provisions Paragraph 12.4 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyDeed.
Appears in 1 contract
Sources: Sale Agreement (Balcor Realty Investors 84 Series Ii)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges3.5.1. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior Subject to the Closing Dateterms and conditions of the Time Brokerage Agreement, all items of income and a per diem adjustment shall be made for expense arising from the days between operation of the meter reading date STATIONS with respect to the Purchased Assets and the Closing Date based Assumed Contracts on or before the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If close of business on the Closing Date shall be for the account of SELLER and thereafter shall be for the account of PURCHASER. Proration of the items described below between SELLER and PURCHASER shall be effective as of 11:59 p.m., local time, on such date and shall occur before as follows with respect to those rights, liabilities and obligations of SELLER transferred to and assumed by PURCHASER hereunder.
3.5.2. Subject to the terms and conditions of the Time Brokerage Agreement, liability for state and local Taxes assessed on the Purchased Assets payable with respect to the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to which the Closing Date (falls and 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 annual FCC regulatory fees for the STATIONS payable with respect to Seller (if the prorations result year 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 which the Closing Date, the prorations will Date falls shall each be made at Closing prorated as between SELLER and PURCHASER on the basis of the best evidence then available; thereafternumber of days of the Tax year elapsed to and including the Closing Date.
3.5.3. Prepaid items, when actual figures are receiveddeposits, re-prorations will credits and accruals such as water, electricity, telephone, other utility and service charges, lease expenses, license fees (if any) and payments under any contracts or utility services to be made assumed by PURCHASER shall be prorated between SELLER and PURCHASER on the basis of the actual figuresperiod of time to which such liabilities, prepaid items and a final cash settlement will accruals apply.
3.5.4. All prorations shall be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible paid insofar as of feasible on the Closing Date, in which event no proration will ; any prorations not made on such date shall be made at the Closing with respect as soon as practicable (not to utility billsexceed ninety (90) days) thereafter. Seller will be entitled SELLER and PURCHASER agree to assume, pay and perform all deposits presently in effect with the utility providerscosts, liabilities and Purchaser will be obligated expenses allocated to make its own arrangements for any deposits with the utility providers. The provisions each of them pursuant to this Section 10.4(a) will survive the Closing for twelve (12) months3.5.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Asset Purchase Agreement (Spanish Broadcasting System Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"“Proration Time”), the following (collectively, the "PRORATION ITEMS"“Proration Items”):
(i) RentalsRents, in accordance with Section Subsection 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, 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, .
(v) Such other items of income and expense as are typically prorated at Closing, assume all expenses incurred or closing similar to be incurred in connection with any real estate tax appeals that are pending at the time of Closingtransaction 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 from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser two (2) days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers, but Seller 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 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 from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTAL" “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration ’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 Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by 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 ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to current amounts owed by such Tenant to Purchaser and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Prorations. A. ▇▇▇ts (aexclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; accrued but unpaid interest on the Note; fuels; prepaid operating expenses; 1995 (if not paid) Seller and Purchaser agree to adjust, 1996 real and personal property taxes; accrued but unpaid interest on the Note and other similar items shall be adjusted ratably as of 11:59 p.m. 12:01 a.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
. Assessments of record (iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts ad valorem taxes) payable in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the tax rate for most recent ascertainable data. The parties agree to re-prorate the preceding year applied to proration items within forty-five (45) days after the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason date 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 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 holdbacks held by the Lender under the Loan Documents, except for amounts, if any, of such escrows, reserves and holdbacks applicable to 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 which relate to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (for which Purchaser has not been given a credit hereunder.
B. All sums paid following the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, Date by any tenant of the Property who is indebted under a lease for any period prior to and including the Closing Date after the payment to Purchaser of all then current basic rent shall be signed deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser and of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. The proration For a period of sixty days following Closing, Purchaser shall be paid at Closing by Purchaser send monthly collection notices 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 tenants residing at the ClosingProperty owing Post-Closing Receipts. If the actual amounts of the Proration Items are not known as of Within 90 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the prorations will be made at first 60 days after the Closing on Date. Upon the basis delivery of the best evidence then available; thereafterPost-Closing Receipts reconciliation, when actual figures are receivedPurchaser 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, re-prorations will be made on Seller retains the basis right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the actual figuresPost-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, and a final cash settlement will be made between Purchaser shall pay to Seller and Purchasersaid additional Post-Closing Receipts. No prorations will be made in relation Seller shall deliver to insurance premiums, and Seller's insurance policies will not be assigned Purchaser any sums received by Seller after the Closing Date which relate to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as the period of time after the Closing Date, in which event no proration will be made at the Closing along with respect to utility billsan accounting identifying any such sums. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions Paragraph 12B of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyDeed.
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"“Proration Time”), the following (collectively, the "PRORATION ITEMS"“Proration Items”):
(i) RentalsRents, in accordance with Section 10.4(b) below.
(ii) Cash Seller shall credit Purchaser at Closing with all cash Security Deposits and any prepaid rents, together with any interest required to be paid to the Tenant thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem estimated 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 Apex Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assumeContracts.
(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.
(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 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 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 from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTAL" “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's ’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by 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 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 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 month in which the Closing occurs, then to current amounts owned by such Tenant to Purchaser and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. (a) Seller As between Assignee and Purchaser agree Tenant, revenues and expenses, utility charges for the billing period in which the Transfer Date occurs, real and personal property taxes, certain prepaid expenses and other related items of revenue or expense attributable to adjust, the Facility shall be prorated between Tenant and Assignee as of 11:59 p.m. the Transfer Date. In general, such prorations shall be made so that as between Assignee and Tenant, Tenant shall be reimbursed for prepaid expense items to the extent that the same are attributable to periods after the Transfer Date and Tenant shall remain responsible for the payment as and when due of unpaid expenses to the extent that the same are attributable to periods prior to the Transfer Date. The intent of this provision shall be implemented by Assignee remitting to Tenant any invoices which describe goods or services provided to the Facility before the Transfer Date and by Assignee assuming responsibility for the payment of any invoices which describe goods or services provided to the Facility on and after the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) belowTransfer Date.
(iib) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by All such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of actual days elapsed in the actual figuresrelevant accounting or revenue period and shall be based on the most recent information available to Tenant. Utility charges which are not metered and read on the Transfer Date shall be estimated based on prior charges, and a final cash settlement will shall be made between Seller re-prorated upon receipt of statements therefor as of the Transfer Date.
(c) All amounts which are subject to proration under the terms of this Agreement and Purchaser. No prorations will which require adjustment after the Transfer Date shall be made settled within thirty (30) days after the Transfer Date or, in relation 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 insurance premiumssettle the amounts subject to proration.
(d) On the Transfer Date, and Seller's insurance policies will not be assigned Tenant shall have the right to Purchaser. Final readings and final ▇▇▇remove any ▇▇▇▇▇ for utilities will be made if possible cash (as of the Closing Date, in which event no proration will be made compared to resident funds) then being maintained by Tenant 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) monthsFacility.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)
Prorations. 12.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser 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 day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for credited against the days between balance of the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts cash due at Closing. Assessments payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts in installments which Purchaser has elected not are due subsequent to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts amount of any of the Proration Items are items to be prorated is not known as of the Closing Datethen ascertainable, the prorations will adjustments thereof shall be made at Closing on the basis of the best evidence most recent ascertainable data. If the amount of current real estate or personal property taxes is not then available; thereafterascertainable, when actual figures are received, re-prorations will the adjustment thereof shall be made on the basis of 105% of the actual figures, and a final cash settlement will be made between Seller and Purchasermost recent ascertainable tax bill(s). No All prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ al except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All rents collected by Purchaser shall first be applied to current rent due from the applicable tenant and then to any rent in arrears for utilities will be made if possible as said tenant at closing ("Delinquent Rent"). Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Delinquent Rents hereunder to Seller. 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 Closing DateDelinquent Rents reconciliation statement and upon the verification of additional funds owing to Seller, in which event no proration will be made at Purchaser shall pay to Seller said additional Delinquent Rents and the Closing with respect to utility billscost of performing Seller's audit. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions Paragraph 12.2 of this Section 10.4(a) will Agreement shall survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on and the Closing Statement for the prorated amount (as delivery and recording of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertydeed.
Appears in 1 contract
Sources: Agreement of Sale (Balcor Equity Properties LTD-Viii)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section Subsection 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, 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.
(vi) The value of fuel stored at the Real Property, at ClosingSeller's most recent cost, assume all expenses incurred or including taxes, on the basis of a reading made within five (5) days prior to the Closing by Seller's supplier. No adjustments shall be incurred in connection with any real estate tax appeals that are pending at made on account of the time of ClosingGround Lease. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve eighteen (1218) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. Rental is "DELINQUENT" when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. 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 any Tenant. 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 and excluding payments on account of 1999 reconciliations of operating expenses, utilities and real estate tax payments or payments in lieu thereof) will be applied first to current amounts owed by such Tenant to Purchaser and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Prorations. (a) The following items shall be prorated between Seller and Purchaser agree to adjust, as of 11:59 p.m. on midnight of the day immediately preceding the Closing Date (as defined below) (with Purchaser being charged or credited for the "PRORATION TIME")Closing Date, the following (collectively, the "PRORATION ITEMS"as applicable):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to Seller shall be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on responsible for the Real Property, Seller will cause readings payment of all said meters general real estate, personal property and ad valorem taxes due and payable prior to Closing. general real estate, personal property and ad valorem taxes shall be performed not more than five (5) days prorated as of the Closing Date on an accrual basis such that Seller shall pay for all such taxes that become due and payable prior to the Closing Date, and shall provide a per diem adjustment shall be made credit to Purchaser (based on One Hundred Five percent (105%) of the total of the taxes calculated using the most recent available assessed value, tax rate and equalization factor) for all such taxes that are attributable to the days between the meter reading date and period prior to the Closing Date based on but which are not yet due or payable, and Purchaser shall pay all such taxes that become due and payable from and after the most recent meter readingClosing Date. Tax prorations shall be final as of Closing.
(ii) All charges for gas, electricity, sewer, trash, telephone, water and other utilities serving the Property shall be read and terminated as of midnight of the day prior to Closing whereupon Seller shall be responsible for and shall pay for all such charges first accruing or relating to the period prior to the Closing Date.
(iii) Both paid and unpaid charges under the Surviving Service Contracts (if any), including any one-time or bonus payments under any cable or telecommunications contracts.
(iv) Amounts payable under Unless expressly provided otherwise herein, such other items that are customary prorated in a purchase and sale of the Spectrasite Agreements and amounts payable under type contemplated hereunder shall be prorated as of midnight of the Service Contracts other than those Service Contracts which Purchaser has elected not to assumeday immediately preceding the Closing.
(v) Real estate taxes All amounts payable, owing or incurred in connection with the Property shall be prorated as of the Closing Date. All sums due and for such accounts payable for which are attributable to the calendar year. If period prior to the Closing Date shall occur before will be paid by Seller, or if Seller has not received the tax rate is fixedbill or invoice therefor, 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. Ifor has received but not paid such bill or invoice, subsequent prior to the Closing Date, real estate taxes at Purchaser’s election, Purchaser will either (i) furnish to Seller such bills or invoices received after the Closing Date for payment 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, Seller (and Seller agrees shall pay all other such bills or invoices received but not paid prior 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 have no further obligation with respect thereto, or (ii) pay such bill or invoice on behalf of Seller and be charged and credited for all of the Proration Items relating entitled to the period from and after the Proration Time. The estimated Closing reimbursement thereof by Seller on demand.
(vi) All 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 Statementfinal, 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 except as otherwise expressly provided in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a10(a) will survive the Closing for twelve (12) monthsabove.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Zoned Properties, Inc.)
Prorations. (a) For purposes of Section 6.3 of the Purchase Agreement, the term "Property" shall be deemed to include the Excluded Parcel and all proration's, adjustments and reconciliations set forth in Section 6.3 of the Purchase Agreement shall be based upon all of the real property described in Exhibit B attached hereto, which is the Real Property being sold under the Purchase Agreement together with the Excluded Parcel being sold under the Excluded Parcel Purchase Agreement. Accordingly, there shall be no prorations, adjustments and reconciliations provided for in the Excluded Parcel Purchase Agreement, except that Seller and Purchaser hereby agree to adjust, that all prorations regarding the expense item defined as of 11:59 p.m. on "Taxes and Assessments" for the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to Excluded Parcel shall be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior prorated separately pursuant to the Closing Date, and a per diem adjustment shall be made for Excluded Parcel Purchase Agreement based upon the days between square footage of the meter reading date land contained in the Excluded Parcel 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 square footage 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 Land that is set forth 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 is assessed against both all or a portion of the Excluded Parcel and a portion of the Land. For the avoidance of doubt, there shall be no other prorations, adjustments or reconciliations for the Excluded Parcel except for Taxes and Assessments expense, i.e. for example, there will be no tenant reimbursements, common area maintenance expense reimbursements or insurance reimbursements. In addition, Section 6.3 of the Purchase Agreement is revised to state that Purchaser; shall receive at Closing as a credit against the Purchase Price (i) the amount of all security deposits from Tenants that are pending at in the time possession or control of Closing. Seller will be charged and credited for the amounts as of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date and (ii) 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 net amount of accounts receivable credits due to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known Tenants as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Purchase and Sale Agreement (GK Investment Holdings, LLC)
Prorations. (a) Seller Notwithstanding anything to the contrary contained in this Agreement, all rent, additional rent, real estate taxes, common area maintenance and Purchaser other charges, insurance obligations and utility charges payable under the Acquired Leases shall be prorated as of the Final Closing Date for each Acquired Lease. Sellers agree to adjustprorate real estate taxes and assessments based on when such taxes and assessments accrue, as of 11:59 p.m. notwithstanding when such taxes and assessments become a lien on the day preceding premises leased by an Acquired Leases. All percentage rent based on sales payable under an Acquired Lease for the fiscal period in which the Final Closing Date (for such Acquired Lease occurs shall be the "PRORATION TIME")responsibility of the Sellers, provided, however, if Buyer opens for business from the following (collectivelyapplicable Store in the fiscal period in which the percentage rent is calculated, then percentage rent based on sales shall be prorated based upon the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there ratio that sales made at such Store for which percentage rents are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days calculated prior to the applicable Final Closing Date, and a per diem adjustment shall be Date bears to the aggregate sales made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable relevant fiscal period for which percentage rents are computed. The Sellers shall reasonably cooperate with Buyer in providing documents required under the Spectrasite Agreements Acquired Leases in order to comply with percentage rent reporting requirements. The Sellers and amounts payable under Buyer agree to adjust between themselves after the Service Contracts applicable Final Closing any errors, reconciliations, or omissions in the prorations or adjustment set forth in the closing statements and any other than those Service Contracts which Purchaser has elected not prorations or adjustment made pursuant to assume.
(v) Real estate taxes due and payable for this Agreement. Notwithstanding anything contained herein to the calendar year. If the Closing Date shall occur before the tax rate is fixedcontrary, the apportionment of real estate taxes such apportionments shall be upon the basis of the tax rate for the preceding year applied deemed final and not subject to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes further post-closing adjustments if no such adjustments have been requested within ninety (by reason of change in either assessment or rate or for any other reason90) 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 days after such recomputation and vice versa. Purchaser shall, at Closing, assume time as all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated necessary information is available to make its own arrangements for any deposits with the utility providers. The provisions a complete and accurate determination of this Section 10.4(a) will survive the Closing for twelve (12) monthssuch apportionments.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Asset Purchase Agreement (Fao Inc)
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) Seller cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and Purchaser agree to adjust, as of 11:59 p.m. assessment prorations shall be based on the day preceding the Closing Date (the "PRORATION TIME")latest available tax ▇▇▇▇. If after Close of Escrow either party receives any further or supplemental tax ▇▇▇▇ relating to any period prior to Close of Escrow, the following recipient shall promptly deliver a copy of such tax ▇▇▇▇ to the other party, and not later than ten (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (510) days prior to the Closing Date, delinquency date shown on such tax ▇▇▇▇ Buyer and a per diem adjustment Seller shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied deliver to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason taxing authority their respective shares of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible , prorated as of the Closing Date, in which event no proration will Close of Escrow. All prorations shall be made at the Closing based on a 360- day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to utility bills. Seller will the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be entitled to all deposits presently in effect with the utility providerspaid by Seller, and Purchaser will be obligated to make its own arrangements Seller shall indemnify and hold Buyer harmless for any deposits with lease commission claims brought against the utility providersReal Property arising therefrom. The provisions All leasing commissions and tenant improvement costs for new Leases executed after the date of this Section 10.4(a) will survive Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as primary term of the Proration Time) of new Lease subject, in all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Leaseevents, to the extent prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the same exceeds any expense stop specified in such Leaseterms of this Agreement specifically become the obligation of Buyer), retroactive rentalsbrought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, all administrative chargesclaims, utility chargesdemands, tenant suits and judgments, of any kind or real propertynature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”): real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with Section 10.4(bcollected Rentals (subject to the terms of (b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges operating expenses payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters the owner of the Property (on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. Ifa 365 day year, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closingactual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, 37 once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before the last day of the Survival Period (herein, the “Final Proration Date”). The provisions of this Section 10.4(a10.4 (excluding subsection (e) which is governed by Section 3.2 above), will survive the Closing for twelve (12) monthsuntil the Final Proration Date, and in the event any items subject to proration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Closing Time) of all Rental Rentals previously paid to or and collected by Seller and attributable to any period from and after following the Proration Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all RentalRentals, if any, received by Seller after Closing and properly attributable to any period from and after following the Proration Closing Time. "RENTAL" as used herein “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include each such Tenant's proration ’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to Seller under the Tenant Lease or from other occupants or users of the Property, excluding specific tenant ▇▇▇▇▇▇▇▇ which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. Until the end of the Survival Period, Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. Seller shall have the right to pursue Delinquent Rentals after Closing. With respect to any Delinquent Rentals received 38 by Purchaser within the Survival Period, Purchaser shall pay to Seller any rent or payment actually collected during the Survival Period properly attributable to the period prior to the Closing Time. All sums collected by Purchaser during the Survival Period, from such Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time and tenant specific ▇▇▇▇▇▇▇▇ for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, all of which shall be payable to and belong to Seller in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such Tenant to Purchaser (including Delinquent Rentals attributable to the period after the Closing Time), then any collection costs of Purchaser related to such Tenant, and then to prior delinquencies owed by Tenant to Seller. Seller shall be entitled to institute legal actions to pursue Delinquent Rental after Closing, but in no event shall Seller be permitted to institute eviction proceedings against any Tenant. Any sums collected by Purchaser and due to Seller will be promptly remitted to Seller, and any sums collected by Seller and due to Purchaser will be promptly remitted to Purchaser.
Appears in 1 contract
Prorations. (a) Seller Rents and Purchaser agree to adjust, any additional operating expenses payable under the Lease shall be prorated as of 11:59 p.m. 12:01 a.m. on April 1, 2000 (the "Proration Date"), with Seller being responsible for such amounts accruing prior to the Proration Date and Buyer being responsible for the amounts accruing on or after the Proration Date. Notwithstanding the foregoing, Seller shall receive a credit at the Closing in the amount of the Monthly Base Rent (as defined in the Lease), Real Property Taxes (as defined in the Lease), and operating expenses due under the Lease for each day preceding on and after April 1, 2000 and up to the Closing Date (to the "PRORATION TIME")extent such amounts have previously been paid by Seller to KREG or Kilr▇▇) ▇▇d Buyer shall be responsible for paying the Monthly Base Rent, Real Property Taxes, and operating expenses due under the following Lease for each day on and after April 1, 2000 and up to the Closing Date directly to KREG or Kilr▇▇ (collectively▇▇ the extent such amounts have not previously been paid by Seller to KREG or Kilr▇▇, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including▇▇cluding, without limitation, electricityMonthly Base Rent for the month of April). The amount of the security deposit under the MPower Sublease shall be credited to Buyer at the Closing, water charges and sewer chargesin addition to the Purchase Price. If there are meters on Seller shall receive credits at Closing for the Real amount of any utility or other deposits with respect to the Property, Seller will . Buyer shall cause readings of all said meters utilities to be performed not more than five (5) days prior to the Closing Date, transferred into Buyer's name 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 account at the time of Closing. Seller will be charged and credited Buyer is responsible for the amounts payment of all of leasing commissions in connection with the Proration Items relating to MPower Sublease and iXL Sublease. Buyer shall reimburse Seller at Closing for certain tenant improvement costs and building system costs in connection with the period up to tenant improvement work for MPower and iXL in the Proration Time, amount 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 as more fully set forth on SCHEDULE 2 attached hereto and made a preliminary closing statement to be prepared by part hereof. Buyer and 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 (hereby agree that 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 any of the Purchase Price at the Closing. If the actual amounts of the Proration Items are aforesaid prorations and credits cannot known as of be calculated accurately on the Closing Date, then the prorations will same shall be made at calculated as soon as reasonably practicable after the Closing Date and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay said sum to the basis other party. Without limiting the foregoing, Seller shall remain liable for all monetary obligations under the Lease, MPower Sublease and iXL Sublease which accrued prior to the Proration Date.
(b) Seller shall pay one-half (1/2) of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on escrow fee and the basis costs of obtaining the CLTA portion of the actual figures, and a final cash settlement will be made between Seller and PurchaserTitle Policy. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as Buyer shall pay the costs of obtaining the ALTA portion of the Closing DateTitle Policy, the cost of any endorsements and one-half (1/2) of the escrow fee. Any other expenses of the escrow for the sale shall be paid by Buyer and Seller in which event no proration will be made at accordance with customary practice as determined by 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. Title Company.
(c) The provisions of this Section 10.4(a) will 6.4 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Buy Out of Leasehold Interest (Natural Alternatives International Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"“Closing Time”), the following (collectively, the "PRORATION ITEMS"):
“Proration Items”) real estate and personal property taxes and assessments for the year in which Closing occurs, utility bills (i) Rentalsexcept as hereinafter provided), in accordance with Section 10.4(bcollected Rentals (subject to the terms of (b) below.
(ii) Cash Security Deposits ), expenses under the Permitted Exceptions, and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges expenses under Service Contracts assumed by Purchaser at Closing payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters the owner of the Property (on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. Ifa 365 day year, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closingactual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Closing Time. The Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) Business Days prior to the Closing Date (the "CLOSING STATEMENT"“Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing DateTime, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiumspremiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller's ’s insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing DateTime, in which event no proration will be made at the Closing with respect to utility billsbills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before November 30, 2016 (herein, the “Final Proration Date”). The provisions of this Section 10.4(a) 10.4 will survive the Closing until the Final Proration Date has occurred, and in the event any items subject to proration hereunder are discovered prior to the Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4. Notwithstanding anything to the contrary provided in this Agreement including, but not limited to, this Section 10.4(a), Seller and Purchaser hereby agree to use the following, estimated 2016 real estate taxes and assessments for twelve purposes of the proration of same 38 at Closing: (12x) months.
(b) Purchaser will receive a credit on the Closing Statement $1,452,200.00 for the prorated amount Champions Village Real Property and the Champions Village Improvements and (as of y) $178,200.00 for the Proration Time) of all Rental previously paid to or collected by Seller Oak Park Real Property and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyOak Park Improvements.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. (a) Seller 3.6.1. All items of income and Purchaser agree to adjust, as expense arising from the operation of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance Stations with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior respect to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date Purchased Assets and the Closing Date based Assumed Leases on or before the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If close of business on the Closing Date shall be for the account of Seller and thereafter shall be for the account of Purchaser. Proration of the items described below between Seller and Purchaser shall be effective as of 12:00 midnight, local time, on the Closing Date and shall occur before as follows with respect to those rights, liabilities and obligations of Seller transferred to and assumed by Purchaser hereunder.
3.6.2. Liability for state and local Taxes assessed on the Purchased Assets payable with respect to the tax rate is fixed, year in which the apportionment of real estate taxes Closing Date falls shall each be upon prorated as between Seller and Purchaser on the basis of the tax rate for number of days of the preceding Tax year applied elapsed to the latest assessed valuation. If, subsequent to and including the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) .
3.6.3. The FCC annual regulatory fees for the Real Property and Improvements should fiscal year October 1, 2004 through September 20, 2005 for the Stations which are payable in August, 2005 shall be determined assumed to be higher or lower than those that are apportionedthe same as the annual regulatory fees paid in August, a new computation 2004 and shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid prorated at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date.
3.6.4. Prepaid items, the prorations will deposits, credits and accruals such as water, electricity, telephone, other utility and service charges, lease expenses, license fees (if any) and payments under any contracts or utility services to be made at Closing assumed by Purchaser shall be prorated between Seller and Purchaser on the basis of the best evidence then available; thereafterperiod of time to which such liabilities, when actual figures are received, re-prepaid items and accruals apply.
3.6.5. All prorations will shall be made and paid insofar as feasible on the basis of the actual figures, Closing Date and a final cash settlement will be made between Seller and Purchaser. No prorations will shall be made in relation to insurance premiums, and Seller's insurance policies will accordance with generally accepted accounting principles; any prorations not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will made on such date shall be made if possible as soon as practicable (not to exceed ninety (90) days) thereafter. As soon as practical within said ninety (90) day period, Purchaser shall deliver to Seller Purchaser's certificate setting forth as of the Closing Date, in which event no proration will Date all adjustments to be made at as provided in this Article 3. Purchaser shall provide Seller or Seller's representatives access to copies of all books and records as Seller may reasonably request need to verify such adjustments. Purchaser's certificate shall be final and conclusive unless objected to by Seller in writing within thirty (30) days after delivery. Seller and Purchaser shall attempt jointly to reach agreement as to the Closing amount of the adjustments to be made hereunder within sixty (60) days after receipt by Purchaser of such written objection by Seller, which agreement, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or review. In the event of a disagreement between Purchaser and Seller with respect to utility bills. the accounting to be made hereunder, the parties agree that a public accounting firm chosen jointly by Purchaser and Seller will shall be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providersfinal arbiter of such disagreement. The provisions cost of this Section 10.4(a) will survive such accounting firm shall be shared equally by the Closing for twelve (12) months.
(b) parties. Any amounts due Purchaser will receive a credit on the Closing Statement or Seller for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to adjustments provided for herein shall be paid or turned over to Purchaser all Rental, if any, received by Seller within ten (10) calendar days after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyfinal determination.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spanish Broadcasting System Inc)
Prorations. 13.1. Rents (a) Seller exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser agree and credited to adjustPurchaser at Closing); fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, if any, for such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be made for the days between the meter reading date and the prorated at Closing Date based on the most recent meter reading.
(iv) Amounts payable under ascertainable data. Seller shall pay at Closing the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable bills therefor for the calendar yearperiod to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller h▇▇ ▇re-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of business), then Purchaser shall be charged its portion of such payment at Closing. No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall occur before be paid by Purchaser. If the tax rate amount of any of the items to be prorated is fixednot then ascertainable, the apportionment of real estate taxes adjustments thereof shall be upon on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax rate consulting agreements with respect to the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. Seller shall deliver to Purchaser all such real estate tax consulting contracts within fifteen (15) days of the date hereof. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement shall be deemed final as prorated on the Closing Date, except as to delinquent rent referred to in Paragraph 13.2 below.
13.2. For a period of ninety (90) days following the Closing Date, all basic rent paid following the Closing Date by any tenant of the Properties who is indebted under a Lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. On the last business day of each month following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and, if the amount owing Seller is greater than $5,000.00 for any one Real Property, the cost of performing Seller's audit. After the Closing, in no event shall Seller attempt to evict a tenant through any manner. Paragraph 13.2 of this Agreement shall survive the Closing and the delivery and recording of the deed.
13.3. To the extent it is reasonably possible for the preceding year applied Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to the latest assessed valuationfollowing terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. IfDuring such period, Purchaser shall have the right to use the existing logos, in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation then Purchaser shall be made, and Seller agrees responsible to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior same subsequent to the Closing Date (but no such payment shall accrue to the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed benefit of the Seller or constitute a credit against a debt otherwise owed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) monthssaid third party).
(be) Purchaser will receive a credit Purchaser's temporary license set forth in this paragraph shall expire on the Closing Statement date(s) set forth above. If Purchaser continues to use the name currently being used by the Property subsequent to the expiration date of this temporary license set forth above, then Purchaser shall be liable for and shall pay to the prorated amount owner of said rights a license fee equal to One Hundred Dollars (as $100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the Proration Time) of all Rental previously paid state where such Property is located to prevent such unauthorized use or collected to recover any damages authorized by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertylaws.
Appears in 1 contract
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 85)
Prorations. (a) The following shall be prorated between Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):Cut-Off Time:
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricityAll real estate taxes, water or sewer charges and sewer charges. If there are meters general or special assessments on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to or any other governmental tax or charge levied or assessed against the Property. If the Closing Dateshall occur before the actual amounts payable are known, and a per diem adjustment then apportionment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under recently ascertainable tax rates and assessed value of the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar yearProperty. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes Seller shall be upon the basis of the tax rate responsible for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate all such taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees allocable to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, and Purchaser shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ responsible for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable such taxes allocable to any period from and after the Proration TimeClosing Date. After If any taxes or assessments relating to the period prior to the Closing are paid in installments, then Seller shall pay on or before the Closing Date any remaining installments with respect to such taxes or assessments that are allocable to any period prior to the Closing Date. Seller and Purchaser agree that to the extent the actual taxes for the current year differ from the amount so apportioned at Closing, the parties hereto will within thirty (30) days after receipt of a request from Purchaser or Seller, as applicable, make all necessary adjustments by appropriate payments between themselves promptly following the Closing. At Closing, Seller will shall transfer to Purchaser control of all pending real estate tax certiorari proceedings which would or could affect post-Closing periods. After Closing, Purchaser shall pay over to Seller any sums realized through such certiorari proceedings which are allocable to periods prior to Closing (after recovery of a reasonable allocation of the legal expense and other costs incurred in realizing such sums).
(ii) All rent for the month in which the Closing occurs with respect to the Leases shall be prorated at Closing. There shall be no credit for delinquent rent, which shall be paid over by Purchaser to Seller if collected by Purchaser after the Closing.
(iii) With respect to Property Contracts assumed by Purchaser in accordance with this Agreement, (1) Seller shall be credited for sums prepaid by Seller under the Property Contracts, (2) Purchaser shall be credited for any amounts under the Property Contracts which as of Closing are due or accrued and relate to the period prior to Closing and (3) Purchaser and Seller shall prorate any amounts prepaid by the counterparty to any Property Contract (including, without limitation, prepaid bonuses or decorating allowances paid to Seller with respect to laundry or other similar ancillary agreements) over the term of the Property Contract.
(iv) Seller shall perform, or cause to be performed, an accounting of cash on hand at the Property (i.e., in-house banks and ▇▇▇▇▇ cash, including till money, and, to the extent same are the property of Seller, vending machines and pay telephones) in the presence of a representative of Purchaser and Purchaser shall retain such amounts and Seller shall be credited with a like amount at Closing.
(v) All tour and travel agent commissions paid or turned over prior to Purchaser all Rental, if any, Closing by Seller in respect of Bookings relating to a period after the Closing shall be credited to Seller at Closing. All advance deposits received by Seller prior to Closing in respect of Bookings relating to a period after the Closing shall be credited to Purchaser at Closing. Purchaser shall have no obligation to honor any reward stays occurring after Closing and accordingly Purchaser shall receive no credit for any such reward stay it elects to honor after Closing.
(vi) All accrued compensation (including without limitation, accrued severance and vacation benefits and any other benefits) payable to Transferred Employees and Bargaining Unit Employees (including, without limitation, compensation and benefits provided for under the Union Contract with respect to employees covered by the Union Contract) and any applicable employment and withholding taxes of such employees, attributable to the period prior to Closing, shall be credited to Purchaser.
(vii) To the extent that with respect to electricity, telephone, television, gas, water and sewer services which are metered and other utilities, Seller shall use reasonable efforts to have the respective companies providing such utilities read the meters on or immediately prior to the Cut-Off Time. Seller shall be responsible for all charges based on such final meter readings and Purchaser shall be responsible for all charges thereafter. To the extent such meters are not read and final bills rendered as of the Cut-Off Time, such charges with respect to the Property shall be prorated effective as of the Cut-Off Time utilizing an estimate of such charges reasonably approved by both Purchaser and Seller based on prior utility bills, unless Seller elects to close its own applicable account as of the Cut-Off Time, in which event Purchaser shall open its own account as of the Closing Date and the respective charges shall not be prorated, and, if Seller does not close its own applicable account, any deposits or credits with respect to the foregoing services will be credited to Seller if Purchaser receives full credit therefor from the utility. Upon the taking of a subsequent actual reading, such apportionment shall be adjusted to reflect the actual rate for the billing period in which the date of Closing falls, and Seller, or Purchaser, as the case may be, shall promptly deliver to the other the amount determined to be due upon such adjustment.
(viii) Seller shall be responsible for all condominium charges, including without limitation Common Charges and Special Assessments, if any (as such terms are defined in the Condominium Documents) and such other charges as may be due under the Condominium Documents (collectively, the “Condominium Charges”), in respect of the Essex House Condominium that are allocable to any period prior to the Closing Date and Purchaser shall be responsible for all such Condominium Charges allocable to any period from and after the Proration Closing Date. If any such Condominium Charges relating to the period prior to the Closing are paid in installments, then Seller shall pay on or before the Closing Date any remaining installments with respect to such Condominium Charges that are allocable to any period prior to the Closing Date and same shall be adjusted between Seller and Purchaser as of the Cut-Off Time. "RENTAL" Seller and Purchaser agree that to the extent the actual Condominium Charges differ from the amount so apportioned at Closing, the parties hereto will within thirty (30) days after receipt of a request from Purchaser or Seller, as used herein includes fixed monthly rentalsapplicable, additional rentalsmake all necessary adjustments by appropriate payments between themselves promptly following the Closing.
(ix) As of the date hereof the balance of the FF&E reserve held for Seller’s benefit for the Hotel-Related Units is $7,065,390.25 (the “FF&E Balance”). At Closing, percentage rentalsPurchaser shall receive a credit in an amount equal to the FF&E Balance on the date hereof. Notwithstanding the foregoing, escalation rentals between the date hereof through and including the Closing Date, Seller may use any portion of the FF&E Balance or increase the FF&E Balance; provided, however, (x) no increase in the FF&E Balance over the FF&E Balance on the date hereof shall be credited to Purchaser at Closing and (y) no reduction in the FF&E Balance below the FF&E Balance on the date hereof shall result in a credit to Purchaser at Closing of less than the FF&E Balance on the date hereof. Representatives of Seller and Purchaser shall make such inventories, examinations and audits of Seller, and of the books and records of Seller, as may be necessary to make the adjustments and prorations required under this Agreement. Prior to Closing, representatives of Purchaser and Seller shall jointly prepare a statement (the “Preliminary Closing Statement”) based upon such preliminary inventories, audits and examinations which include each Tenant's proration share will show the net amount due to Seller or Purchaser as the result thereof, and that net amount will be added to, or deducted from, the Purchase Price. Within ninety (90) days following the Closing, representatives of building Purchaser and Seller shall prepare a revised statement (the “Final Closing Statement”, and together with the Preliminary Closing Statement, collectively, the “Closing Statements”) setting forth the final determination of all items to be included in the Closing Statements, and any necessary payment shall be made within thirty (30) days after completion of such Final Closing Statement. Any item which cannot be finally prorated because of the unavailability of information shall be tentatively prorated on the basis of the best data then available and re-prorated when the information is available. The provisions of this Section 8.4 shall survive the Closing for a period of twelve (12) months and shall not be deemed merged into any instrument of conveyance delivered at the Closing. Purchaser and Seller acknowledge and agree that, except as otherwise expressly provided herein, the purpose and intent of the provisions set forth in this Section 8.4 and elsewhere in this Agreement as to prorations and apportionments is that Seller shall bear all expenses of the ownership and operation of the Property (for which buyers and maintenance costs sellers of hotels in The City of New York would customarily prorate or apportion) and shall receive all income therefrom accruing through the Cut-Off Time and Purchaser shall bear all such expenses and receive all income accruing thereafter. Any revenues and/or expenses affecting the Property that are not otherwise specifically addressed in Section 8.4(b) shall be apportioned consistently with the foregoing provisions. Purchaser and Seller further acknowledge and agree that the apportionments as provided for under to the LeaseHotel-Related Units in this Section 8.4(b) shall be prepared, to the extent applicable, in accordance with the same exceeds any expense stop specified in such Lease)current edition of the Uniform System of Accounts for Hotels of the Hotel Association of New York City, retroactive rentalsInc., all administrative charges, utility charges, tenant or real propertyas adopted by the American Hotel Association of the United States and Canada.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Hotels & Resorts, Inc)
Prorations. All real property taxes, personal property ---------- taxes, ad valorem obligations and similar Taxes imposed on a ---------- periodic basis, in each case levied with respect to the Rooftop Assets, other than conveyance taxes provided for in Section 2.5, for a taxable period which includes (abut does not end on) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMSApportioned Obligations"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days apportioned between the meter reading date Seller and Purchaser as of the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment number of real estate taxes shall be upon the basis days of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the taxable period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser occurring prior to the Closing Date (the "CLOSING STATEMENTPre-Closing Tax Period") and the number of days of such taxable period occurring on or after the Closing Date (the "Post-Closing Tax Period"). The Closing Statement, once agreed upon, Seller shall be signed by Purchaser and Sellerliable for the proportionate amount of such Taxes that is attributable to the Pre-Closing Tax Period. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known As soon as of practical after the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and PurchaserPurchaser shall present a statement for reimbursement for such Taxes with respect to which each is entitled to reimbursement under this Section 15.4(a), together with such supporting evidence as is reasonably necessary to calculate the proration amount. No prorations will The proration amount shall be made in relation paid by the party owing it to insurance premiumsthe other within ten (10) days after delivery of such statement. Thereafter, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇Seller shall notify Purchaser upon receipt of any ▇▇▇▇ for utilities will be such Taxes relating to the Rooftop Assets, part or all of which are attributable to the Post- Closing Tax Period, and shall promptly deliver such ▇▇▇▇ to Purchaser who shall pay the same to the appropriate Taxing authority, provided that if such ▇▇▇▇ covers the Pre-Closing Tax Period, Seller shall also remit to Purchaser prior to the due date of assessment payment the proportionate amount of such ▇▇▇▇ that is attributable to the Pre-Closing Tax Period. In the event that either Seller or Purchaser shall thereafter make a payment for which it is entitled to reimbursement under this Section 15.4(a), the other party shall make such reimbursement promptly but in no event later than thirty (30) days after the presentation of a statement setting forth the amount of reimbursement to which the presenting party is entitled along with such supporting evidence as is reasonably necessary to calculate the amount of reimbursement. Any payment required under this Section and not made if possible as within ten (10) days of delivery of the Closing Date, in which event no proration will be made statement shall bear interest at the Closing with respect rate per annum determined, from time to utility bills. Seller will be entitled to all deposits presently in effect with time, under the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a6621(a)(2) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include Code for each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyday until paid.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pinnacle Holdings Inc)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by SellerRents, including, without limitation, electricitypercentage rents, water if any, and any additional charges and expenses payable under tenant leases, all as and when actually collected (whether such collection occurs prior to, on or after the Closing Date); real property taxes and assessments; water, sewer and utility charges; amounts payable under any service contracts; annual permits and/or inspection fees (calculated on the basis of the period covered); and any other expenses of the operation and maintenance of the Property (including, without limitation, expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the unamortized portion thereof), shall all be prorated as of 12:01 a.m. on the date the Deeds are recorded on the basis of a 365-day year. Seller shall receive a credit at Closing for the tenant improvements and leasing commissions described in Section 7.2. Any sums collected by Buyer from tenants after the Closing shall be promptly paid to current rents and then to Seller to the extent of any remaining rents and other sums which were delinquent at Closing. Buyer shall use reasonable efforts to collect such delinquent rents but shall have no obligation to commence a legal proceeding to collect such sums. If there are meters on Buyer has not been able to collect any delinquent rents within ninety (90) days after the Real PropertyClosing, Seller will cause readings may bring legal actions to collect such rents, provided Seller shall have no right to terminate any tenant's lease. The amount of all said meters any security deposits under tenant leases shall be credited against the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to be performed not more than five (5) days the Property. Seller shall use reasonable efforts to obtain a utility reading immediately prior to the Closing Date, and a per diem adjustment . Buyer shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined cause all utilities to be higher or lower than those that are apportioned, a new computation shall be made, transferred into Buyer's name and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending account at the time of Closing. Seller will be charged and credited for the amounts of all Buyer hereby agree that if any of the Proration Items relating to the period up to the Proration Time, aforesaid prorations and Purchaser will credits cannot be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth calculated accurately on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, then the prorations will same shall be made at calculated as soon as reasonably practicable after the Closing Date and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay said sum to the basis other party.
(b) For the properties located in Arizona, Seller shall pay for the premium for a standard coverage title policy. Buyer shall pay for (i) the additional premium for extended coverage and (ii) the cost of all endorsements. The escrow fees and recording costs shall be equally borne by both Buyer and Seller. For the property located in New Mexico, Seller shall pay for the title insurance policy. Buyer shall pay for (i) the cost of all endorsements and the costs of deleting the standard preprinted exceptions, (ii) all recording costs and (iii) the environmental audit and any other inspections. The escrow fees shall be equally borne by both Buyer and Seller. For the property located in Texas, Seller shall pay for (i) the title insurance premium, and (ii) the cost of recording the deed. Buyer shall pay for the cost of all endorsements. The escrow fees shall be equally borne by both Buyer and Seller. For the properties located in Colorado, Buyer shall pay for (i) all recording costs, (ii) the documentary fees and (iii) the costs of all endorsements and extended title coverage. Seller shall pay for the premium for basic title coverage. The escrow fees shall be equally borne by both Buyer and Seller. All other costs associated with the closing of the best evidence then available; thereafter, when actual figures are received, re-prorations will transaction contemplated herein shall be made on paid in accordance with the basis local custom of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, county in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. Property is located.
(c) The provisions of this Section 10.4(a) will 8.5 shall survive the Closing for twelve (12) monthsClosing.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period from and after the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property
Appears in 1 contract
Sources: Agreement of Purchase and Sale (American Industrial Properties Reit Inc)
Prorations. (a) Seller At the Closing, all Taxes related to the Owned Real Property (and Purchaser agree the Leased Real Property to adjustthe extent such Taxes are the responsibility of the tenant under the relevant Lease) (“Real Estate Taxes”) shall be pro rated as follows: (i) with respect to Real Property located in Wisconsin, on a calendar year basis, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
Date; and (ii) Cash Security Deposits with respect to Real Property located in Iowa, (A) Seller shall be responsible for the Real Estate Taxes billed in (or around) September 2009 and any prepaid rentsall prior Tax bills, together with interest required to and (B) the Real Estate Taxes billed in (or around) March 2010 shall be paid thereon.prorated and adjusted between the parties, based upon their respective ownership during the first six (6) months of 2009; and
(iiib) Utility charges payable by SellerSeller shall be responsible for all special assessment installments related to the Owned Real Property (and the Leased Real Property to the extent such special assessment installments are the responsibility of the tenant under the relevant Lease), including, without limitation, electricity, water charges and sewer charges. If there which are meters billed (even if not yet due) on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days or prior to the Closing Date, and a per diem adjustment Buyer shall be made for pay all special assessment installments related to the days between the meter reading date Owned Real Property (and the Leased Real Property to the extent such special assessment installments are the responsibility of the tenant under the relevant Lease) first billed after the Closing Date based on the most recent meter readingDate.
(ivc) Amounts payable Personal property Taxes allocable to the personal property to be purchased under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts this Agreement which Purchaser has elected not are billed or are to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes be billed in 2009 shall be upon prorated and adjusted between the basis of the tax rate for the preceding year applied to the latest assessed valuation. Ifparties, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statementcalendar year basis, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date.
(d) All rent payments, common area maintenance (CAM) charges, utility bills and other similar charges related to the prorations will Acquired Real Property shall be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible prorated as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(be) Purchaser will receive a credit on All payroll Taxes and other similar Liabilities related to the Closing Statement for Representatives of the Company Group shall also be prorated amount (as of the Proration TimeClosing.
(f) of all Rental previously paid to or collected by Seller and attributable With respect to any period from and after the Proration Time. After items to be prorated, including, without limitation, Taxes, that have not been billed as of the Closing, Seller will cause agreed upon estimates shall be used in prorations, and such estimates shall be deemed to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to conclusive.
(g) Notwithstanding any period from and after the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentalsother provisions hereof, all administrative chargesamounts that are the responsibility of, utility chargesor otherwise allocated to, tenant Seller under this Section 2.13 shall reduce the Purchase Price at Closing either directly or real propertyas a reduction in the calculation of the Net Equity Amount.
Appears in 1 contract
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME")Date, the following (collectively, the "PRORATION ITEMSItems"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, together with interest required to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of ): real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closingassessments only. Seller will be charged and or credited for the amounts of all of the Proration Items relating to the period up to and including the Proration TimeClosing Date, and Purchaser will be charged and or credited for all of the Proration Items relating to the period from and after the Proration TimeClosing Date. The 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 prior to the Closing Date 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 SellerSeller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing 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 relation to respect of Rentals, operating costs, Billable Operating Costs or insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. All adjustments other than the specified Proration Items shall be made by Seller, as landlord, and Tenant, as tenant, which adjustments shall be made in accordance with the Lease as if the Closing Date and Lease Surrender were the expiration date of the Lease. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills, otherwise, such prorations shall be made between Seller and Tenant, as aforesaid, for the period up to and including the Closing Date, and between Tenant and Purchaser for the period after the 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 any deposits with the utility providers. Purchaser will use reasonable efforts to give Seller ten (10) business days notice of the Closing Date to allow Seller adequate time to arrange for final readings and calculation of all prorations. The provisions of this Section 10.4(a) 10.4 will survive the Closing for twelve nine (129) 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 Seller, in the form received by Purchaser, all RentalRentals, if any, received by Seller 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 after take other legal non-possessory action to enforce collection of any such amounts, provided, however, in no event will Seller have the Proration Time. "RENTAL" right to threaten termination of the Tenant Lease or institute any eviction or ejectment proceedings.
(c) Seller, using its reasonable business judgment, will prepare, at least seven (7) days prior to the Closing Date, a reconciliation as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each of the Closing Date of the amounts of all ▇▇▇▇▇▇▇▇ and charges for Tenant's proration share use of building operation and maintenance water & sewer, operating costs and expenses tax escalations (collectively, "BILLABLE OPERATING COSTS") comparing actual electricity and 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 calendar year in which Closing occurs and submit such reconciliation to Tenant for its approval. 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 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 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 Billable Operating Costs as may be necessary based on annual reconciliations for Billable Operating Costs for all calendar years including the 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 ▇▇▇▇▇▇▇▇ for work orders, special items performed or provided at the request of Tenant, other specific services, and specific ▇▇▇▇▇▇▇▇ for under the Lease, Billable Operating Costs or other additional rents and amounts due which relate to the extent foregoing specific services rendered by Seller prior to the Closing Date, Seller may seek to collect same exceeds from Tenant in accordance with the Lease and Purchaser shall have no responsibility therefor.
(e) Nothing contained in this Agreement shall obligate or be deemed to obligate Purchaser to pay or reimburse Seller for any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility chargesCommissions, tenant improvement costs or real propertyother expenditures with respect to the existing Tenant Lease.
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Imclone Systems Inc/De)
Prorations. (a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIMEProration Time"), the following (collectively, the "PRORATION ITEMSProration Items"):
(i) RentalsRents, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits In the event that there shall be any expenses attributable to the operation, maintenance or ownership of the Property that are not paid directly by the Tenant under the Lease ("Other Proration Items"), then Seller will be responsible for the amounts thereof relating to the period up to and including the Closing Date, and Purchaser will be responsible for the amounts thereof relating to the period after the Closing Date. Accordingly, to the extent that Seller prepaid for any prepaid rents, together with interest required Other Proration Items that are attributable to be paid thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Propertyperiod after the Closing Date, Seller will cause readings of all said meters receive a credit therefor at Closing. Conversely, at Closing, to be performed the extent that Seller has not more than five (5) days yet paid for any Other Proration Items that are attributable to the period on or prior to the Closing Date, then Purchaser shall receive a credit for such Other Proration Items and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Spectrasite Agreements and amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume.
(v) Real estate taxes pay such expenses when due, or, if past-due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of within seven (7) days after Closing. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period from and after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENTClosing Statement"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration prorations shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final ▇▇▇▇▇▇▇▇ for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental (as defined below in this paragraph) previously paid to or collected by Seller and attributable to any period from and after following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period from and after following the Proration Time. "RENTALRental" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proration share of building operation and maintenance costs and expenses and real estate taxes as provided for under the Lease, to the extent the same exceeds any expense stop specified in such the Lease), retroactive rentals, all administrative charges, utility charges, tenant or real propertyproperty or office park association dues, and other sums and charges payable by the Tenant under the Lease. Rental is "Delinquent" when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by the Tenant. Seller reserves the right to pursue a collection action against the Tenant for Delinquent Rental; provided, however, in no event may Seller seek to terminate the Lease or Tenant’s occupancy thereunder or threaten to do so. All sums collected by Purchaser from and after Closing from the Tenant will be applied first to amounts due from the Tenant for the month of Closing, then to current amounts due subsequent to Closing, then to amounts owed by the Tenant to Seller. Purchaser and Seller shall promptly remit to the other any sums received by either party that are due to the other pursuant to this Section 10.4(b).
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Griffin Capital Essential Asset REIT II, Inc.)