Apportionment of Taxes and Other Charges. (a) All normal and customarily proratable items, including without limitation, real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), collected rents and other income, and Operating Contract payments (under Operating Contracts assumed by Buyer), shall be prorated in escrow as of the Closing Date, Seller being charged and credited for all of the same relating to the period up to the Closing Date and Buyer being charged and credited for all of the same relating to the period on and after the Closing Date. If the amount of any such item is not known at the time of the Closing, such item shall be apportioned on the basis of the comparable period of the prior year with a reapportionment within 90 days of the Closing Date or as soon thereafter as the amount of the item is actually determined. No proration shall be made in relation to delinquent rents, common area expense charges or tax payments (collectively, “Delinquent Rents”) existing, if any, as of the Closing Date. To the extent that interim reimbursements of real estate taxes are made by the tenant under the Lease and have been collected by Seller prior to the Closing, such payments may be retained by Seller without duty to account therefor to Buyer (unless such reimbursements are prepayments of amounts due and payable after the Closing in which event such amounts shall be remitted to Buyer at Closing) but no deduction shall be made from taxes allocable to Seller as aforesaid. To the extent that such reimbursement obligations are payable after Closing, Buyer agrees to use reasonable efforts to secure said reimbursements from the tenants (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and as soon as the same are received by Buyer, said receipts shall be apportioned between Seller and Buyer so that Seller shall be entitled to the portion allocable to the period prior to Closing and Buyer shall be entitled to the balance. With respect to operating expenses payable by the tenant under the Lease, to the extent that Seller has received as of the Closing payments allocable to a period subsequent to the Closing, same shall be properly prorated with an adjustment in favor of Buyer. With respect to any payments received by Buyer after the Closing allocable to a period prior to Closing, Buyer shall account therefor to Seller in the same manner as payments on account of real estate taxes. All amounts previously paid to Seller by tenants on account of reserves, marketing expenses or any other matter in connection with the operation and maintenance of the Property and not yet applied by Seller for the purposes for which the same were deposited, shall be credited against the Purchase Price. Further, any brokerage or leasing commissions, any contributions or allowances for tenant improvements, and all other payments in the nature of tenant inducements due or which may become due with respect to the Lease shall be credited against the Purchase Price. Buyer shall pay Seller Delinquent Rent as and when collected by Buyer, it being agreed that Buyer shall not be deemed to have collected any such arrearages until such time as the tenant is current in the payment of all rents accruing from and after the Closing. Buyer agrees to xxxx tenants of the Property for all Delinquent Rents and to take any additional reasonable actions requested by Seller to collect Delinquent Rents provided that Buyer shall not be obligated to incur any cost or liability in connection with such actions and Buyer shall not be obligated to take any action to terminate a tenancy. Seller reserves the right to bring suit against tenants of the Property to collect for Delinquent Rent but Seller may not, subsequent to the date hereof, bring suit for possession of the premises occupied by such tenants. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration shall be made at the Closing with respect to utility bills. Otherwise a proration shall be made based upon the parties' reasonable good faith estimate and a readjustment made within thirty (30) days after Closing or such later date as shall be necessary so that such readjustment may be based upon actual bills for such utilities. No proration will be made in relation to insurance premiums and the insurance policies will not be assigned to Buyer. Seller shall be entitled to receive a return of all deposits presently in effect with the utility providers, and Buyer shall be obligated to make its own arrangements for deposits with the utility providers. Buyer shall receive a credit for the Security Deposit, free rent and other concessions or obligations to tenants. The provisions of this Article 14 shall survive the Closing, and in the event of any error in performing the prorations contemplated by this Agreement or if information becomes available subsequent to the Closing indicating that the prorations performed at Closing were not accurate the parties hereto shall be obligated to re-prorate the closing adjustments to correct such errors and to reflect such new information.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Semele Group Inc)
Apportionment of Taxes and Other Charges. (a) All normal and customarily proratable pro-rateable items, including without limitation, real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), collected rents and other income, and Operating Contract payments (under Operating Contracts assumed by Buyer), shall be prorated in escrow as of the Closing Date, Seller being charged and credited for all of the same relating to the period up to and including the Closing Date and Buyer being charged and credited for all of the same relating to the period on and after the Closing Date. If the amount of any such item is not known at the time of the Closing, such item shall be apportioned on the basis of the comparable period of the prior year with a reapportionment within 90 days of the Closing Date or as soon thereafter as the amount of the item is actually determined. No proration shall be made in relation to delinquent rents, common area expense charges or tax payments (collectively, “"Delinquent Rents”") existing, if any, as of the Closing Date. To the extent that (i) interim reimbursements of real estate taxes or (ii) prepaid common area charges are made by the tenant tenants under the Lease Leases and have been collected by Seller prior to the Closing, such payments may be retained by Seller without duty to account therefor to Buyer (unless such reimbursements are prepayments of amounts due and payable after the Closing in which event such amounts shall be remitted to Buyer at Closing) but no deduction shall be made from taxes allocable to Seller as aforesaid. To the extent that such reimbursement obligations are payable after Closing, Buyer agrees to use reasonable efforts to secure said reimbursements from the tenants (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and as soon as the same are received by Buyer, said receipts shall be apportioned between Seller and Buyer so that Seller shall be entitled to the portion allocable to the period prior to Closing and Buyer shall be entitled to the balance. Buyer shall assume the unpaid portion of all street, drainage, betterment and like assessments payable in installments which have been assessed against the Premises prior to Closing. All percentage rent payable under the Leases for any lease year ending prior to Closing shall belong to Seller. To the extent that any such percentage rent is received by Buyer, Buyer shall promptly pay over the same to Seller. With respect to any lease year during which the Closing shall take place, Seller shall be entitled to that portion thereof represented by multiplying such percentage rent by a fraction, the numerator of which is the number of days of such lease year occurring prior to Closing and the denominator of which is 365. Buyer shall be entitled to the balance thereof. Buyer agrees to use reasonable efforts to collect such percentage rent (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and promptly after receipt thereof by Buyer, the same shall be allocated as aforesaid and paid to Seller. With respect to operating expenses payable by the tenant tenants under the LeaseLeases, to the extent that Seller has received as of the Closing payments allocable to a period subsequent to the Closing, same shall be properly prorated with an adjustment in favor of Buyer. With respect to any payments received by Buyer after the Closing allocable to a period prior to Closing, Buyer shall account therefor to Seller in the same manner as payments on account of real estate taxesuncollected Rents. All amounts previously paid to Seller by tenants on account of reserves, marketing expenses or any other matter in connection with the operation and maintenance of the Property and not yet applied by Seller for the purposes for which the same were deposited, shall be credited against the Purchase Price. FurtherIn the event the Closing Date is on a date other than the last day or first day of a fiscal period under the Leases for purposes of assessing tenants for common area charges, Buyer and Seller agree to cooperate for the purpose of making adjustments in billing tenants for such charges. Buyer and Seller agree that any brokerage amounts subsequently paid by, or leasing commissionscredited to, any contributions or allowances for tenant improvements, the tenants as the result of such adjustments will be prorated between Seller and all other payments in the nature of tenant inducements due or which may become due with respect to the Lease shall be credited against the Purchase PriceBuyer. Buyer shall pay to Seller Delinquent Rent as if and when collected by Buyer, it being agreed that Buyer shall not be deemed to have collected any such arrearages until such time as the tenant is current in the payment of all rents accruing from and after the Closing. Buyer agrees to xxxx tenants of the Property for all Delinquent Rents and to take any additional reasonable actions requested by Seller to collect Delinquent Rents provided that Buyer shall not be obligated to incur any cost or liability out-of-pocket third party expense in connection with such actions and Buyer shall not be obligated to take any action to terminate a tenancy. Seller reserves the right to bring suit against tenants of the Property to collect for Delinquent Rent but Seller may not, subsequent to the date hereof, bring suit for possession of the premises occupied by such tenants. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration shall be made at the Closing with respect to utility bills. Otherwise ; otherwise a proration shall be made based upon the parties' reasonable good faith estimate and a readjustment made within thirty (30) days after Closing or such later date as shall be necessary so that such readjustment may be based upon actual bills for such utilitiesestimate. No proration will be made in relation to insurance premiums and the insurance policies will not be assigned to Buyer, except to the extent insurance premium are included in common area expenses, in which event they shall be prorated as provided above. Seller shall be entitled to receive a return of all deposits presently in effect with the utility providers, and Buyer shall be obligated to make its own arrangements for deposits with the utility providers. Buyer shall receive a credit for the all Security DepositDeposits, free rent and other concessions or obligations to tenants. The provisions Reconciliation of this Article 14 common area maintenance charges for calendar year 2001 will be made by Seller prior to Closing. Seller shall survive the Closing, pay any amount due tenants and in the event of any error in performing the prorations contemplated by this Agreement or if information becomes available subsequent to the Closing indicating that the prorations performed at Closing were not accurate the parties hereto shall be obligated entitled to re-prorate the closing adjustments collect any amount due from tenants in respect thereof. Buyer shall promptly remit to correct Seller any such errors amounts collected by Buyer after Closing. All Closing prorations shall be final, binding and to reflect such new informationconclusive without further adjustment.
Appears in 1 contract
Samples: Purchase and Sale Contract (Murray Income Properties Ii LTD)
Apportionment of Taxes and Other Charges. (a) All normal and customarily proratable items, including without limitation, real estate and personal property taxes and taxes, assessments, utility bills (except as hereinafter provided), collected rents and other income, and Operating Contract payments (under Operating Contracts assumed by Buyer), shall be prorated in escrow as of the Closing Datefor those contracts that Buyer has elected or is required to assume pursuant to Article 12(e) above, Seller being charged and credited for all of the same relating to the period up to the Closing Date and Buyer being charged and credited for all of the same relating to the period on and after the Closing Date. If the amount of any such item is not known at the time of the ClosingWith respect to Operating Contracts that Buyer elects to terminate pursuant to Article 12(e) above, such item Seller shall be apportioned on the basis of the comparable period of the prior year with a reapportionment within 90 days of responsible for any “stub period” payment between the Closing Date or as soon thereafter as and the amount effective date of the item is actually determinedtermination. No proration shall be made in relation to delinquent rents, common area expense charges or tax payments (collectively, “Delinquent Rents”) rents existing, if any, as of the Closing Date. To the extent that interim reimbursements of real estate taxes are made by the tenant under the Lease and have been collected by Seller prior to the ClosingIn adjusting for uncollected rents, such payments may be retained by Seller without duty to account therefor to Buyer (unless such reimbursements are prepayments of amounts due and payable after the Closing in which event such amounts shall be remitted to Buyer at Closing) but no deduction adjustment shall be made from taxes allocable to Seller in Seller's favor for rents which have accrued and are unpaid as aforesaid. To the extent that such reimbursement obligations are payable after of Closing, Buyer agrees to use reasonable efforts to secure said reimbursements from the tenants (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and as soon as the same are received by Buyer, said receipts shall be apportioned between Seller and Buyer so that Seller shall be entitled to the portion allocable to the period prior to Closing and Buyer shall be entitled to the balance. With respect to operating expenses payable by the tenant under the Lease, to the extent that Seller has received as of the Closing payments allocable to a period subsequent to the Closing, same shall be properly prorated with an adjustment in favor of Buyer. With respect to any payments received by Buyer after the Closing allocable to a period prior to Closing, Buyer shall account therefor to Seller in the same manner as payments on account of real estate taxes. All amounts previously paid to Seller by tenants on account of reserves, marketing expenses or any other matter in connection with the operation and maintenance of the Property and not yet applied by Seller for the purposes for which the same were deposited, shall be credited against the Purchase Price. Further, any brokerage or leasing commissions, any contributions or allowances for tenant improvements, and all other payments in the nature of tenant inducements due or which may become due with respect to the Lease shall be credited against the Purchase Price. but Buyer shall pay Seller Delinquent Rent such accrued and unpaid rents, as and when collected by Buyer, it being agreed that Buyer shall not be deemed to have collected any such arrearages attributable to the period prior to Closing until such time as the tenant is current in the payment first of all rents accruing from and after the Closing. Buyer agrees to xxxx tenants of the Property for all Delinquent Rents past due rents and to take any additional reasonable actions requested by Seller to collect Delinquent Rents rents that are accrued but unpaid as of the Closing, provided that Buyer shall not be obligated to incur any cost or liability out‑of‑pocket third party expense in connection with such actions and Buyer shall not be obligated to take any action to terminate a tenancy. Seller reserves the right to bring suit against tenants of the Property to collect for Delinquent Rent but Seller may not, subsequent to the date hereofClosing, bring suit for recovery of delinquent rents or possession of the premises occupied by such delinquent tenants. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration shall be made at the Closing with respect to utility bills. Otherwise One time non-recurring non-refundable charges such as amenity fees, redecorating fees, pet fees, application fees and the like shall not be prorated, provided that Buyer shall receive a credit for refundable fees and deposits. Otherwise, a proration shall be made based upon the parties' reasonable good faith estimate and a readjustment made within thirty (30) days after Closing or such later date as shall be necessary so that such readjustment may be based upon actual bills for such utilitiesClosing. No proration will be made in relation to insurance premiums and the insurance policies will not be assigned to Buyer. Seller shall be entitled to receive a return of all deposits presently in effect with the utility providers, and Buyer shall be obligated to make its own arrangements for deposits with the utility providers. Buyer shall receive a credit for all Security Deposits, with interest thereon required by the Security DepositLeases or by law (if not transferred separately). Except as provided below for ad valorem real estate taxes, free rent and other concessions or obligations to tenants. The the provisions of this Article 14 13 shall survive the Closing for a period of ninety (90) days at which time there will be a one time readjustment, if necessary. All ad valorem real estate and personal property taxes with respect to the Real Property and the Improvements shall be prorated as of the Closing Date on an accrual basis. Accordingly, (i) Seller shall be responsible for the payment of all such taxes for the tax year 2011, which taxes are payable in the calendar year 2012 in which the Closing occurs, and (ii) Seller and Buyer shall be responsible for their respective prorated share of all such taxes for the tax year 2012, which taxes are payable during the succeeding calendar year (i.e., 2013). At Closing, and in Buyer shall receive a credit for the Sellers’ share of such taxes. In the event that as of any error the date Closing occurs the actual tax bills for the tax year or years in performing question are not available and the prorations contemplated by this Agreement or if information becomes available subsequent amount of tax to be prorated as aforesaid cannot be ascertained, then 105% of the Closing indicating that tax due for the prorations performed at Closing were not accurate the parties hereto last determinable tax year shall be obligated to used. There shall be no “true-up” or further re-prorate the closing adjustments to correct such errors proration of real estate taxes for any tax year. All of Seller's on-site employees shall have their employment with Seller terminated and to reflect such new informationshall be paid current through Closing, including accrued vacation and other benefits.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Apportionment of Taxes and Other Charges. (a) All normal and customarily proratable items, including without limitation, real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), collected rents rents, collected operating expense payments and other income, road maintenance and common association fees in connection with the maintenance and operation of Westlakes Office Park, and Operating Contract payments (under Operating Contracts assumed by Buyer), shall be prorated in escrow as of the Closing Date, Seller being charged and credited for all of the same relating to the period up to the Closing Date and Buyer being charged and credited for all of the same relating to the period on and after the Closing Date. If the amount of any such item is not known at the time of the Closingdelivery of the deed, such item shall be apportioned on the basis of the comparable period of the prior year with a reapportionment within 90 days of the Closing Date or as soon thereafter as the amount of the item is actually determined. No proration shall be made in relation to delinquent rents, common area operating expense charges or tax payments (collectively, “"Delinquent Rents”") existing, if any, as of the Closing Date. To the extent that interim reimbursements of real estate taxes are made by the tenant tenants under the Lease Leases and have been collected by Seller prior to the Closing, such payments may be retained by Seller without duty to account therefor to Buyer (unless except to the extent such reimbursements are prepayments of amounts due and payable after the Closing in which event such prepaid amounts shall be remitted to Buyer at ClosingClosing and except for any challenges or contests asserted by a Tenant) but no deduction shall be made from taxes allocable to Seller as aforesaid. To the extent that such reimbursement obligations are payable after Closing, Buyer agrees to use reasonable efforts to secure bill tenants of the Property xxx said reimbursements from and to take any additional reasonable actions requested by Seller to collect the tenants same (with no obligation, however, to incur any out-of-pocket costs third party expense with respect thereto) and as soon as the same are received by Buyer, said receipts shall be apportioned between Seller and Buyer so that Seller shall be entitled to the portion allocable to the period prior to Closing and Buyer shall be entitled to the balance. Seller reserves the right to (i) bring or continue any suit brought against any tenants of the Property listed as such tenants on Exhibit C for accrued but unpaid reimbursements which shall have accrued on or prior to March 31, 1997 and, (ii) at any time after the expiration of six (6) months following the Closing Date, upon thirty (30) days prior written notice to Buyer without Buyer's having collected the amounts thereof within such thirty (30) day period, bring suit against tenants of the Property to collect for such unpaid reimbursements that first accrued on or after April 1, 1997 and are owed Seller as of the Closing Date, but Seller may not, subsequent to the Closing, bring suit for possession of the premises occupied by such tenants. With respect to percentage rent, if any, payable under the Leases for any lease year ending prior to Closing, any and all percentage rent shall belong to Seller. To the extent that any such percentage rent is received by Buyer, Buyer shall promptly pay over the same to Seller. With respect to any lease year during which the Closing shall take place, Seller shall be entitled to that portion thereof represented by multiplying such percentage rent by a fraction, the numerator of which is the number of days of such lease year occurring prior to Closing and the denominator of which is 365. Buyer shall be entitled to the balance thereof. Buyer agrees to bill tenants of the Property xxx such percentage rent and to take any additional reasonable actions requested by Seller to collect the same (with no obligation, however, to incur any out-of-pocket third party expense with respect thereto) and promptly after receipt thereof by Buyer, the same shall be allocated as aforesaid and paid to Seller. Seller reserves the right to (x) bring or continue any suit brought against any tenants of the Property listed as such tenants on Exhibit C for accrued but unpaid percentage rent which shall have accrued on or prior to March 31, 1997 and, (y) at any time after the expiration of six (6) months following the Closing Date, upon thirty (30) days prior written notice to Buyer without Buyer's having collected the amounts thereof within such thirty (30) day period, bring suit against tenants of the Property to collect for such accrued but unpaid percentage rent that first accrued on or after April 1, 1997 and is owed Seller as of the Closing Date, but Seller may not, subsequent to the Closing, bring suit for possession of the premises occupied by such tenants. With respect to operating expenses payable by the tenant tenants under the LeaseLeases, to the extent that Seller has received as of the Closing payments allocable to a period subsequent to the Closing, same shall be properly prorated with an adjustment in favor of Buyer. With respect to any payments received by Buyer after the Closing allocable to a period prior to Closing, Buyer shall account therefor to Seller in the same manner as payments Delinquent Rents. This paragraph shall survive the Closing until the earlier of (i) the date on account of real estate taxes. All amounts previously paid to Seller by tenants on account of reserveswhich Buyer, marketing expenses or any other matter in connection with the operation and maintenance of the Property and not yet applied by Seller for the purposes for which the same were depositedSeller's assistance, shall be credited against the Purchase Price. Furtherhave made a final reconciliation of operating expenses for calendar year 1997 or (ii) December 31, any brokerage or leasing commissions, any contributions or allowances for tenant improvements, and all other payments in the nature of tenant inducements due or which may become due with respect to the Lease shall be credited against the Purchase Price1997. Buyer shall pay Seller Delinquent Rent Rents as and when collected by Buyer, it being agreed that Buyer shall not be deemed to have collected any such arrearages until such time as the tenant is current in the payment of all rents accruing from and after the Closing. Buyer agrees to xxxx bill tenants of the Property for xxx all Delinquent Rents and to take any additional reasonable actions requested by Seller to collect Delinquent Rents provided that Buyer shall not be obligated to incur any cost or liability out-of-pocket third party expense in connection with such actions and Buyer shall not be obligated to take any action to terminate a tenancy. Seller reserves the right to (a) to bring or continue any suit brought against any tenants of the Property listed as such tenants on Exhibit C for accrued but unpaid Delinquent Rent which shall have accrued on or prior to March 31, 1997 and, (b) at any time after the expiration of six (6) months following the Closing Date, upon thirty (30) days prior written notice to Buyer without Buyer's having collected the amounts thereof within such thirty (30) day period, bring suit against tenants of the Property to collect for Delinquent Rent that first accrued on or after April 1, 1997 but Seller may not, subsequent to the date hereof, bring suit for possession of the premises occupied by such tenants. Final readings and final xxxxxxxx billings for utilities will be made xx xxxx if possible as of the Closing Date, in which event no proration shall be made at the Closing with respect to utility bills. Otherwise a proration shall be made based upon the parties' reasonable good faith estimate and a readjustment made within thirty (30) days after Closing or such later date as shall be necessary so that such readjustment may be based upon actual bills for such utilities. No proration will be made in relation to insurance premiums and the insurance policies will not be assigned to Buyer, except to the extent insurance premiums are included in Common Area expenses, in which event they shall be prorated as provided above. Seller shall be entitled to receive a return of all deposits presently in effect with the utility providers, and Buyer shall be obligated to make its own arrangements for deposits with the utility providers. Buyer shall receive a credit for the all Security DepositDeposits, free rent and other concessions or obligations to tenantstenants and leasing commissions or fees to the extent the same are due and payable prior to the Closing and leasing commissions or fees due and payable for or with respect to the terms of executed Leases (other than New Leases) that shall have commenced prior to the Closing and not any extension period thereof unless, on the Closing Date, the term of such Lease shall be in an extension period, in which case, Buyer shall receive a credit for leasing commissions or fees due and payable for or with respect to the term of such Lease through the end of such extension period only. The provisions of this Article 14 12 shall survive the ClosingClosing for a period of ninety (90) days, and in the event of any error in performing the prorations contemplated by this Agreement or if information becomes available subsequent to the Closing (and after such ninety (90) day period) indicating that the prorations performed at Closing were not accurate the parties hereto shall be obligated to re-prorate the closing adjustments to correct such errors and to reflect such new information. With respect to any Operating Contracts, the cancellation of which Buyer shall require by notice to Seller sent on or before April 14, 1997, to the extent any sum or sums shall become due or payable for or with respect to the unexpired portion of the term of such Operating Contract beginning on and after the Closing Date, Buyer shall be responsible for the same and the Purchase Price shall be increased by an amount equal to the aggregate of all such sums. The parties confirm that it shall be the Seller's responsibility to pay all leasing commissions or fees and tenant improvement allowances to the extent the same are due and payable prior to the Closing and all leasing commissions or fees and tenant improvement allowances due and payable for or with respect to the terms of executed Leases (other than New Leases) that shall have commenced prior to the Closing and not any extension period thereof unless, on the Closing Date, the term of said Lease shall be an extension period, in which case Seller shall be responsible for leasing commissions or fees due and payable for and with respect to the term of such Lease through the end of such extension period only.
Appears in 1 contract
Samples: Purchase and Sale Contract (Cali Realty Corp /New/)
Apportionment of Taxes and Other Charges. (a) (All normal and customarily proratable pro-ratable items, including without limitation, real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), collected rents and other income, and Operating Contract payments (under Operating Contracts assumed by Buyer), shall be prorated in escrow as of the Closing Date, Seller being charged and credited for all of the same relating to the period up to the Closing Date and Buyer being charged and credited for all of the same relating to the period on and after the Closing Date. If the amount of any taxes is unknown on the Closing Date, then Seller and Buyer shall prorate such item is not known at taxes based upon the time taxes paid for the prior year. Seller and Buyer shall adjust the prorated amounts within sixty (60) days after issuance of the Closing, such item shall be apportioned on the basis of the comparable period of the prior year with a reapportionment within 90 days of the Closing Date or as soon thereafter as the amount of the item is actually determinedapplicable tax xxxx. No proration shall be made in relation to delinquent rents, common area expense charges or tax payments (collectively, “Delinquent Rents”) existing, if any, as of the Closing Date. To the extent that (i) interim reimbursements of real estate taxes or (ii) prepaid common area charges are made by the tenant tenants under the Lease Leases and have been collected by Seller prior to the Closing, such payments may be retained by Seller without duty to account therefor to Buyer (unless such reimbursements are prepayments of amounts due and payable after the Closing in which event such amounts shall be remitted to Buyer at Closing) but no deduction shall be made from taxes allocable to Seller as aforesaid. To the extent that such reimbursement obligations are payable after Closing, Buyer agrees to use reasonable efforts to secure said reimbursements from the tenants (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and as soon as the same are received by Buyer, said receipts shall be apportioned between Seller and Buyer so that Seller shall be entitled to the portion allocable to the period prior to Closing and Buyer shall be entitled to the balance. With respect to operating expenses payable by All street, drainage, betterment and like assessments assessed against the tenant under the Lease, to the extent that Seller has received as of the Closing payments allocable to a period subsequent to the Closing, same shall be properly prorated with an adjustment in favor of Buyer. With respect to any payments received by Buyer after the Closing allocable to a period Premises prior to Closing, Buyer shall account therefor to Seller in irrespective of when the same manner as payments on account of real estate taxes. All amounts previously paid to Seller by tenants on account of reserves, marketing expenses or any other matter in connection with the operation and maintenance of the Property and not yet applied by Seller for the purposes for which the same were depositedmay become due, shall be credited against the Purchase Price. Further, any brokerage or leasing commissions, any contributions or allowances for tenant improvements, and all other payments in the nature of tenant inducements due or which may become due with respect to the Lease shall be credited against the Purchase Price. Buyer shall pay Seller Delinquent Rent as and when collected by Buyer, it being agreed that Buyer shall not be deemed to have collected any such arrearages until such time as the tenant is current in the payment of all rents accruing from and after the Closing. Buyer agrees to xxxx tenants of the Property for all Delinquent Rents and to take any additional reasonable actions requested paid by Seller to collect Delinquent Rents provided that Buyer shall not be obligated to incur any cost or liability in connection with such actions and Buyer shall not be obligated to take any action to terminate a tenancy. Seller reserves the right to bring suit against tenants of the Property to collect for Delinquent Rent but Seller may not, subsequent to the date hereof, bring suit for possession of the premises occupied by such tenants. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration shall be made at the Closing with respect to utility bills. Otherwise a proration shall be made based upon the parties' reasonable good faith estimate and a readjustment made within thirty (30) days after Closing or such later date as shall be necessary so that such readjustment may be based upon actual bills for such utilities. No proration will be made in relation to insurance premiums and the insurance policies will not be assigned to Buyer. Seller shall be entitled to receive a return of all deposits presently in effect with the utility providers, and Buyer shall be obligated to make its own arrangements for deposits with the utility providers. Buyer shall receive a credit for the Security Deposit, free rent and other concessions or obligations to tenants. The provisions of this Article 14 shall survive the Closing, and in the event of any error in performing the prorations contemplated by this Agreement or if information becomes available subsequent to the Closing indicating that the prorations performed at Closing were not accurate the parties hereto shall be obligated to re-prorate the closing adjustments to correct such errors and to reflect such new information.
Appears in 1 contract
Samples: Purchase and Sale Contract (Heritage Property Investment Trust Inc)
Apportionment of Taxes and Other Charges. (a) All normal and customarily proratable pro-rateable items, including without limitation, real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), collected rents and other income, and Operating Contract payments (under Operating Contracts assumed by Buyer), shall be prorated in escrow as of the Closing Date, Seller being charged and credited for all of the same relating to the period up to and including the Closing Date and Buyer being charged and credited for all of the same relating to the period on and after the Closing Date. If the amount of any such item is not known at the time of the Closing, such item shall be apportioned on the basis of the comparable period of the prior year with a reapportionment within 90 days of the Closing Date or as soon thereafter as the amount of the item is actually determined. No proration shall be made in relation to delinquent rents, common area expense charges or tax payments (collectively, “"Delinquent Rents”") existing, if any, as of the Closing Date. To the extent that (i) interim reimbursements of real estate taxes or (ii) prepaid common area charges are made by the tenant tenants under the Lease Leases and have been collected by Seller prior to the Closing, such payments may be retained by Seller without duty to account therefor to Buyer (unless such reimbursements are prepayments of amounts due and payable after the Closing in which event such amounts shall be remitted to Buyer at Closing) but no deduction shall be made from taxes allocable to Seller as aforesaid. To the extent that such reimbursement obligations are payable after Closing, Buyer agrees to use reasonable efforts to secure said reimbursements from the tenants (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and as soon as the same are received by Buyer, said receipts shall be apportioned between Seller and Buyer so that Seller shall be entitled to the portion allocable to the period prior to Closing and Buyer shall be entitled to the balance. Buyer shall assume the unpaid portion of all street, drainage, betterment and like assessments payable in installments which have been assessed against the Premises prior to Closing. All percentage rent payable under the Leases for any lease year ending prior to Closing shall belong to Seller. To the extent that any such percentage rent is received by Buyer, Buyer shall promptly pay over the same to Seller. With respect to any lease year during which the Closing shall take place, Seller shall be entitled to that portion thereof represented by multiplying such percentage rent by a fraction, the numerator of which is the number of days of such lease year occurring prior to Closing and the denominator of which is 365. Buyer shall be entitled to the balance thereof. Buyer agrees to use reasonable efforts to collect such percentage rent (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and promptly after receipt thereof by Buyer, the same shall be allocated as aforesaid and paid to Seller. With respect to operating expenses payable by the tenant tenants under the LeaseLeases, to the extent that Seller has received as of the Closing payments allocable to a period subsequent to the Closing, same shall be properly prorated with an adjustment in favor of Buyer. With respect to any payments received by Buyer after the Closing allocable to a period prior to Closing, Buyer shall account therefor to Seller in the same manner as payments on account of real estate taxesuncollected Rents. All amounts previously paid to Seller by tenants on account of reserves, marketing expenses or any other matter in connection with the operation and maintenance of the Property and not yet applied by Seller for the purposes for which the same were deposited, shall be credited against the Purchase Price. FurtherIn the event the Closing Date is on a date other than the last day or first day of a fiscal period under the Leases for purposes of assessing tenants for common area charges, Buyer and Seller agree to cooperate for the purpose of making adjustments in billing tenants for such charges. Buyer and Seller agree that any brokerage amounts subsequently paid by, or leasing commissionscredited to, any contributions or allowances for tenant improvements, the tenants as the result of such adjustments will be prorated between Seller and all other payments in the nature of tenant inducements due or which may become due with respect to the Lease shall be credited against the Purchase PriceBuyer. Buyer shall pay to Seller Delinquent Rent as if and when collected by Buyer, it being agreed that Buyer shall not be deemed to have collected any such arrearages until such time as the tenant is current in the payment of all rents accruing from and after the Closing. Buyer agrees to xxxx bill tenants of the Property for all Delinquent Rents and to take any additional xxxxtional reasonable actions requested by Seller to collect Delinquent Rents provided that Buyer shall not be obligated to incur any cost or liability out-of-pocket third party expense in connection with such actions and Buyer shall not be obligated to take any action to terminate a tenancy. Seller reserves the right to bring suit against tenants of the Property to collect for Delinquent Rent but Seller may not, subsequent to the date hereof, bring suit for possession of the premises occupied by such tenants. Final readings and final xxxxxxxx billings for utilities will be made if possible as of the Closing Date, in which xx xxxch event no proration shall be made at the Closing with respect to utility bills. Otherwise ; otherwise a proration shall be made based upon the parties' reasonable good faith estimate and a readjustment made within thirty (30) days after Closing or such later date as shall be necessary so that such readjustment may be based upon actual bills for such utilitiesestimate. No proration will be made in relation to insurance premiums and the insurance policies will not be assigned to Buyer, except to the extent insurance premium are included in common area expenses, in which event they shall be prorated as provided above. Seller shall be entitled to receive a return of all deposits presently in effect with the utility providers, and Buyer shall be obligated to make its own arrangements for deposits with the utility providers. Buyer shall receive a credit for the all Security DepositDeposits, free rent and other concessions or obligations to tenants. The provisions Reconciliation of this Article 14 common area maintenance charges for calendar year 2001 will be made by Seller prior to Closing. Seller shall survive the Closing, pay any amount due tenants and in the event of any error in performing the prorations contemplated by this Agreement or if information becomes available subsequent to the Closing indicating that the prorations performed at Closing were not accurate the parties hereto shall be obligated entitled to re-prorate the closing adjustments collect any amount due from tenants in respect thereof. Buyer shall promptly remit to correct Seller any such errors amounts collected by Buyer after Closing. All Closing prorations shall be final, binding and to reflect such new informationconclusive without further adjustment.
Appears in 1 contract
Samples: Purchase and Sale Contract (Murray Income Properties I LTD)
Apportionment of Taxes and Other Charges. (a) All normal and customarily proratable items, including without limitation, real estate and personal property taxes and taxes, assessments, utility bills (except as hereinafter provided), collected rents and other income, and Operating Contract payments (under Operating Contracts assumed by Buyer), shall be prorated in escrow as of the Closing Datefor those contracts that Buyer has elected or is required to assume pursuant to Article 12(e) above, Seller being charged and credited for all of the same relating to the period up to the Closing Date and Buyer being charged and credited for all of the same relating to the period on and after the Closing Date. If the amount of any such item is not known at the time of the ClosingWith respect to Operating Contracts that Buyer elects to terminate pursuant to Article 12(e) above, such item Seller shall be apportioned on the basis of the comparable period of the prior year with a reapportionment within 90 days of responsible for any “stub period” payment between the Closing Date or as soon thereafter as and the amount effective date of the item is actually determinedtermination. No proration shall be made in relation to delinquent rents, common area expense charges or tax payments (collectively, “Delinquent Rents”) rents existing, if any, as of the Closing Date. To the extent that interim reimbursements of real estate taxes are made by the tenant under the Lease and have been collected by Seller prior to the ClosingIn adjusting for uncollected rents, such payments may be retained by Seller without duty to account therefor to Buyer (unless such reimbursements are prepayments of amounts due and payable after the Closing in which event such amounts shall be remitted to Buyer at Closing) but no deduction adjustment shall be made from taxes allocable to Seller in Seller's favor for rents which have accrued and are unpaid as aforesaid. To the extent that such reimbursement obligations are payable after of Closing, Buyer agrees to use reasonable efforts to secure said reimbursements from the tenants (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and as soon as the same are received by Buyer, said receipts shall be apportioned between Seller and Buyer so that Seller shall be entitled to the portion allocable to the period prior to Closing and Buyer shall be entitled to the balance. With respect to operating expenses payable by the tenant under the Lease, to the extent that Seller has received as of the Closing payments allocable to a period subsequent to the Closing, same shall be properly prorated with an adjustment in favor of Buyer. With respect to any payments received by Buyer after the Closing allocable to a period prior to Closing, Buyer shall account therefor to Seller in the same manner as payments on account of real estate taxes. All amounts previously paid to Seller by tenants on account of reserves, marketing expenses or any other matter in connection with the operation and maintenance of the Property and not yet applied by Seller for the purposes for which the same were deposited, shall be credited against the Purchase Price. Further, any brokerage or leasing commissions, any contributions or allowances for tenant improvements, and all other payments in the nature of tenant inducements due or which may become due with respect to the Lease shall be credited against the Purchase Price. but Buyer shall pay Seller Delinquent Rent such accrued and unpaid rents, as and when collected by Buyer, it being agreed that Buyer shall not be deemed to have collected any such arrearages attributable to the period prior to Closing until such time as the tenant is current in the payment first of all rents accruing from and after the Closing. Buyer agrees to xxxx tenants of the Property for all Delinquent Rents past due rents and to take any additional reasonable actions requested by Seller to collect Delinquent Rents rents that are accrued but unpaid as of the Closing, provided that Buyer shall not be obligated to incur any cost or liability out‑of‑pocket third party expense in connection with such actions and Buyer shall not be obligated to take any action to terminate a tenancy. Seller reserves the right to bring suit against tenants of the Property to collect for Delinquent Rent but Seller may not, subsequent to the date hereofClosing, bring suit for recovery of delinquent rents or possession of the premises occupied by such delinquent tenants. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration shall be made at the Closing with respect to utility bills. Otherwise One time non-recurring non-refundable charges such as amenity fees, redecorating fees, pet fees, application fees and the like shall not be prorated, provided that Buyer shall receive a credit for refundable fees and deposits. Otherwise, a proration shall be made based upon the parties' reasonable good faith estimate and a readjustment made within thirty (30) days after Closing or such later date as shall be necessary so that such readjustment may be based upon actual bills for such utilitiesClosing. No proration will be made in relation to insurance premiums and the insurance policies will not be assigned to Buyer. Seller shall be entitled to receive a return of all deposits presently in effect with the utility providers, and Buyer shall be obligated to make its own arrangements for deposits with the utility providers. Buyer shall receive a credit for all Security Deposits, with interest thereon required by the Security DepositLeases or by law (if not transferred separately). Except as provided in the following sentence, free rent and other concessions or obligations to tenants. The the provisions of this Article 14 13 shall survive the Closing for a period of ninety (90) days at which time there will be a one time readjustment, if necessary. All ad valorem real estate and personal property taxes with respect to the Real Property and the Improvements shall be prorated as of the Closing Date on an accrual basis. Accordingly, (i) Seller shall be responsible for the payment of all such taxes for the tax year immediately preceding the calendar year in which the Closing occurs (i.e., tax year 2011 if the Closing occurs in 2012), which taxes are payable in the calendar year in which the Closing occurs (i.e., 2012), and (ii) Seller and Buyer shall be responsible for their respective prorated share of all such taxes for the tax year in which the Closing occurs (i.e., 2012), which taxes are payable during the succeeding calendar year (i.e., 2013). At Closing, and in Buyer shall receive a credit for the Sellers’ share of such taxes. In the event that as of any error the date Closing occurs the actual tax bills for the tax year or years in performing question are not available and the prorations contemplated by this Agreement or if information becomes available subsequent amount of tax to be prorated as aforesaid cannot be ascertained, then 105% of the Closing indicating that the prorations performed at Closing were not accurate the parties hereto last determinable tax year shall be obligated to used. After the Closing, once the final real estate tax xxxx for tax year 2011 is determined, there shall be a re-prorate proration for tax years 2011 and for 2012 based on the closing adjustments to correct final 2011 xxxx (which shall be used as the basis for proration for both such errors tax years), but there shall not be any further re-proration of real estate taxes for tax year 2012. All of Seller's on-site employees shall have their employment with Seller terminated and to reflect such new informationshall be paid current through Closing, including accrued vacation and other benefits.
Appears in 1 contract
Samples: Purchase and Sale Contract (KBS Legacy Partners Apartment REIT, Inc.)
Apportionment of Taxes and Other Charges. (a) All normal and customarily proratable items, including without limitation, real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), collected rents and other income, and Operating Contract payments (under Operating Contracts assumed by Buyer), shall be prorated in escrow as of the Closing Date, Seller being charged and credited for all of the same relating to the period up to the Closing Date and Buyer being charged and credited for all of the same relating to the period on and after the Closing Date. Notwithstanding anything herein to the contrary, the first payments received by Buyer after Closing from the Government Services Administration shall be deemed payment for the month of Closing and Buyer shall immediately remit to Seller Seller's pro rata share. For purposes of all prorations, if the wire of the Fixed Purchase Price is not received by Seller by 11:00 a.m. PST on the date of Closing, the Closing Date shall be deemed to be the next business day. If the amount of any such item is not known at the time of the Closingdelivery of the deed, such item shall be apportioned on the basis of the comparable period of the prior year with a reapportionment within 90 days of the Closing Date or as soon thereafter as the amount of the item is actually determined. No proration shall be made in relation to delinquent rents, common area expense charges or tax payments (collectively, “"Delinquent Rents”") existing, if any, as of the Closing Date. To the extent that interim reimbursements of real estate taxes are made by the tenant tenants under the Lease Leases and have been collected by Seller prior to the Closing, such payments may be retained by Seller without duty to account therefor to Buyer (unless such reimbursements are prepayments of amounts due and payable after the Closing in which event such amounts shall be remitted to Buyer at Closing) but no deduction shall be made from taxes allocable to Seller as aforesaid. To the extent that such reimbursement obligations are payable after Closing, Buyer agrees to use reasonable efforts to secure said reimbursements from the tenants (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and as soon as the same are received by Buyer, said receipts shall be apportioned between Seller and Buyer so that Seller shall be entitled to the portion allocable to the period prior to Closing and Buyer shall be entitled to the balance. All street, drainage, betterment and like assessments assessed against the Premises prior to Closing, irrespective of when the same may become due, shall be paid by Seller at Closing. With respect to tax and operating expense charges to tenants, Buyer shall submit to Seller the year end calculations of readjustments prior to submitting the same to tenant. The calculations shall be subject to Seller's approval which shall not be unreasonably withheld or delayed. With respect to percentage rent payable under the Leases for any lease year ending prior to Closing, any and all percentage rent shall belong to Seller. To the extent that any such percentage rent is received by Buyer, Buyer shall promptly pay over the same to Seller. With respect to any lease year during which the Closing shall take place, Seller shall be entitled to that portion thereof represented by multiplying such percentage rent by a fraction, the numerator of which is the number of days of such lease year occurring prior to Closing and the denominator of which is 365. Buyer shall be entitled to the balance thereof. Buyer agrees to use reasonable efforts to collect such percentage rent (with no obligation, however, to incur any out-of-pocket costs with respect thereto) and promptly after receipt thereof by Buyer, the same shall be allocated as aforesaid and paid to Seller. With respect to operating expenses payable by the tenant tenants under the LeaseLeases, to the extent that Seller has received as of the Closing payments allocable to a period subsequent to the Closing, same shall be properly prorated with an adjustment in favor of Buyer. With respect to any payments received by Buyer after the Closing allocable to a period prior to Closing, Buyer shall account therefor to Seller in the same manner as payments on account of real estate taxesuncollected Rents. All amounts previously paid to Seller by tenants on account of reserves, marketing expenses or any other matter in connection with the operation and maintenance of the Property and not yet applied by Seller for the purposes for which the same were deposited, shall be credited against the Purchase Price. Further, any brokerage or leasing commissions, any contributions or allowances for tenant improvements, and all other payments in the nature of tenant inducements commissions due or which may become due (together with any other unpaid Leasing Costs) with respect to the Lease Existing Leases for initial occupancy (excluding future expansions, extensions and brokerage commissions due on non-exercise by tenants of early termination options, which obligations shall be the liability of Buyer) shall be credited against the Purchase Price. The Leasing Costs incurred by Seller for New Leases shall be added to the Purchase Price, as provided in Article 13(c). Buyer shall pay Seller Delinquent Rent as and when collected by Buyer, it being agreed that Buyer shall not be deemed to have collected any such arrearages until such time as the tenant is current in the payment of all rents accruing from and after the Closing. Buyer agrees to xxxx tenants of the Property for all Delinquent Rents and to take any additional reasonable actions requested by Seller to collect Delinquent Rents provided that Buyer shall not be obligated to incur any cost or liability out-of-pocket third party expense in connection with such actions and Buyer shall not be obligated to take any action to terminate a tenancy. Seller reserves the right to bring suit against tenants of the Property to collect for Delinquent Rent but Seller may not, subsequent to the date hereof, bring suit for possession of the premises occupied by such tenants. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration shall be made at the Closing with respect to utility bills. Otherwise a proration shall be made based upon the parties' reasonable good faith estimate and a readjustment made within thirty (30) days after Closing or such later date as shall be necessary so that such readjustment may be based upon actual bills for such utilities. No proration will be made in relation to insurance premiums and the insurance policies will not be assigned to Buyer, except to the extent insurance premiums are included in Common Area expenses, in which event they shall be prorated as provided above. Seller shall be entitled to receive a return of all deposits presently in effect with the utility providers, and Buyer shall be obligated to make its own arrangements for deposits with the utility providers. Buyer shall receive a credit for the all Security DepositDeposits, free rent and other concessions or obligations to tenantstenants on Existing Leases. The provisions of this Article 14 shall survive the ClosingClosing for a period of six (6) months, and in the event of any error in performing the prorations contemplated by this Agreement or if information becomes available subsequent to the Closing indicating that the prorations performed at Closing were not accurate the parties hereto shall be obligated to re-prorate the closing adjustments to correct such errors and to reflect such new information.
Appears in 1 contract
Samples: Purchase and Sale Contract (Beacon Properties Corp)
