Closing Prorations. 13.1. The items described in this Paragraph shall be prorated between the parties on a per diem basis (on the basis of actual calendar days and a 366-day year) so that credits and charges preceding or on 11:59 P.M. on the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof. 13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, shall be prorated as of the Closing Date based on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Date. 13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date. 13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses: 13.1.3.1. Except as hereinafter provided, Seller shall be responsible for the payment of all Maintenance Expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred. 13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof: (i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess of amounts incurred by Seller during such period on account of such Maintenance Expenses with respect to such period; and (ii) Purchaser shall pay to Seller the amount (if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed. 13.1.4. Insurance charges payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses. 13.1.5. To the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation of the Property and any personal property included therein or used in connection therewith shall be prorated as of the Closing Date. Seller shall endeavor to obtain readings of all utility meters as close to the Closing Date as practicable. 13.1.6. To the extent not covered by Paragraph 13.
Appears in 2 contracts
Samples: Agreement of Sale (Balcor Equity Pension Investors Ii), Sale Agreement (Balcor Equity Pension Investors Iii)
Closing Prorations. 13.1Purchaser shall obtain its own insurance coverage for the Property at Closing. The items described in this Paragraph Property expenses, including water, sewer and services, collected rents and ad valorem taxes on the Property for the current year shall -7- 8 be prorated between the parties on a per diem basis (on the basis of actual calendar days and a 366-day year) so that credits and charges preceding or on 11:59 P.M. on the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after at the Closing, shall be prorated effective as of the Closing Date Date, based on the most recent ascertainable amountProperty's 1997 assessed value of $3,000,000.00, with the prorations to be adjusted in cash between the parties based on actual taxes at the time actual taxes are determined. Purchaser acknowledges that a result of Seller's assessment appeal as to the Property, the 1997 assessed value has been set at $3,000,000.00, which value is binding upon both parties. Tenant security deposits in the possession of Seller and prepaid rents shall be credited to Purchaser. Purchaser will purchase from Seller, at face value, all account receivables of tenants whose entire account is less than thirty (30) days delinquent. Purchaser shall remit as collected Seller's pro-rata share of any annual tenant reimbursements. Seller agrees to promptly bill tenants making annual paymexxx for Taxesdeliver to Purchaser, Purchaser's prorata share of any rents collected by Seller from the Property after Closing. Rents collected after Closing shall be allocated first to rents THEN DUE Purchaser, if any, and other tenants which are obligated then to make payments for taxes other than on a monthly basis and delinquent rents due Seller. After Closing, Purchaser agrees to use reasonable efforts to collect delinquent rentals due Seller, but Purchaser shall not be required to institute legal action therefor. Any delinquent rents and/or tenant reimbursements which remain liable for Taxes for a period the property of Seller's ownership Seller and are collected by Purchaser after Closing shall be delivered promptly to Seller by Purchaser. Seller may, upon notice to Purchaser, collect directly any of its account receivables from the Property which remain unpaid sixty (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors"60) in accordance with their respective Leasesdays after Closing. Upon Purchaser's receipt request, either party shall give the other an accounting of the payment of Taxes by each Non-Monthly Tax Payor, said payment amounts collected from such Tenants after Closing. Seller shall cause all utility meters to be prorated as of read on the Closing Date and Purchaser shall promptly pay be responsible for having utilities connected on such date in its own name. Pursuant to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Date.
13.1.2. Minimum rent Paragraph 7 (exclusive of delinquent rentsD) above, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such certain lease related costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall may be responsible for the payment of all Maintenance Expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess of amounts incurred by Seller during such period on account of such Maintenance Expenses with respect to such period; and
(ii) Purchaser shall pay reimbursed to Seller the amount (if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursedat Closing.
13.1.4. Insurance charges payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation of the Property and any personal property included therein or used in connection therewith shall be prorated as of the Closing Date. Seller shall endeavor to obtain readings of all utility meters as close to the Closing Date as practicable.
13.1.6. To the extent not covered by Paragraph 13.
Appears in 1 contract
Samples: Real Estate Sale and Purchase Contract (Brandywine Realty Trust)
Closing Prorations. 13.1. The All items described which would normally and customarily be proratable items in this Paragraph shall be prorated between the parties on a per diem basis sale of real estate in the District of Columbia, including without limitation, personal property taxes, utility bills (except as hereinafter provided), accrued and unpaid interest on the basis MetLife Loans, collected rents (and with respect to leases with Government Tenants, rent payable in arrears for the month of actual calendar days Closing, whether or not collected), and a 366-day yearother income, and all costs associated with trade payables and other payables of the Owner LLCs and the Property under any Service Contract (other than Excluded Contracts) so that credits and charges preceding or on 11:59 P.M. on which are to continue after the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the ClosingDate, shall be prorated as of the Closing Date, with Seller being charged and credited for all of the same relating to the period up to the Closing Date based and the Buyer being charged and credited for all of the same relating to the period on and after the most recent ascertainable amountClosing, all as if the Property were being sold provided that with respect to the 1201 Property, the charge and credit shall be with respect to the aggregate share thereof of 1201 Equity, TZO and 1215 ESDI and with respect to the 1225 Property the charge and credit shall be with respect to the aggregate share thereof of 1225 Equity and TTF. Purchaser shall promptly bill tenants making annual paymexxx for TaxesAll escrow balances held by MetLife and all cash balances of the Company and the LLCs as of the Closing Date, if any, and other tenants less any such escrow balances which are obligated being held by said holders to make payments for taxes pay for, or any such cash balances which are left in the LLCs to pay for, any amounts incurred or to be incurred by the Company or any LLC which pursuant to other than on a monthly basis provisions of this Contract are Seller’s responsibility to pay and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes have not been paid by each Non-Monthly Tax Payor, said payment shall be prorated Seller as of the Closing Date shall be credited to Seller. All costs relating to any management, leasing, parking management and Purchaser any other agreements which do not to survive the Closing shall promptly be paid by the LLC from its cash balances in existence prior to Closing or if insufficient cash balances, by Seller. Prior to Closing, Buyer shall inform Seller of the amount of cash balances of the LLCs (not including any amounts held in escrow pursuant to the MetLife Loans) which Buyer desires to remain in the accounts of the LLCs as of the Closing. Seller shall cause 1201 Owner and 1225 Owner to use any cash balances in excess of the amount so designated by Buyer to pay accrued interest on the 1201 Second Loan, the 1201 Third Loan and the 1225 Second Loan, as applicable, and TZO, 1215 ESDI and TTF shall distribute any such amount and any other cash to Seller, all on or before the Closing Date. Real estate taxes and assessments shall be prorated based upon local practice for sales of real property in the area where the Property is located. No proration shall be made in relation to delinquent rents existing, if any, as of the Closing; and an amount equal to any such amounts, if and when collected by the Owner LLCs (subject to the terms below), less all costs of collection, if any, incurred by the Owner LLCs in connection therewith (or an appropriate pro-rata portion of such costs based on the total amount collected), shall be paid by Buyer to Seller reasonably promptly after receipt of any such amounts by the prorated portion LLCs. Any payments of accrued interest and any distributions by the Company or the LLCs pursuant to the above or otherwise paid after the date of this Contract shall not reduce or otherwise affect the Purchase Price. In adjusting for uncollected rents, no adjustment shall be made for rents which have accrued and are unpaid as of the Closing, but an amount equal to any such accrued and unpaid rents, as and when collected Taxes pertaining by the Owner LLCs, shall be paid by Buyer to Seller (subject to the terms of the Loan Documents, it being agreed that the Owner LLCs shall not be deemed to have collected any such arrearages attributable to the period prior to the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under until such time as the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either tenant is current in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible for the payment of all Maintenance Expenses attributable to periods rents accruing in the month(s) of time through and after the Closing. Any rents collected by Seller (or Seller’s property manager) or deposited in any existing lockboxes which Seller maintains as signature parties thereon from and after Closing Date and shall be promptly remitted to the Company or the appropriate Subsidiary, as applicable, in accordance with the terms hereof. As to any such amounts that Seller is entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closinga portion thereof, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess of amounts incurred by Seller during such period on account of such Maintenance Expenses with respect to such period; and
(ii) Purchaser then Buyer shall pay to Seller the amount Seller’s portion (if anyless costs of collection) received by Purchaser on account thereof reasonably promptly following the receipt thereof. The Buyer agrees to cause the Owner LLCs to xxxx tenants of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4. Insurance charges payable under the Leases shall be adjusted Property for all past due rents in substantially the same manner as provided in 13.1.3.2(ibilled by the Owner LLCs prior to the date hereof. Xxxxxxxx for utilities for the period which includes the Closing will be prorated on a daily basis over the appropriate period. Buyer shall receive a credit at Closing for security deposits under the Leases. Otherwise a proration shall be made based upon the parties’ reasonable good faith estimate and a readjustment made within sixty (60) and days after the Closing (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent available). Seller and Buyer will cooperate with each other, including Seller providing the Buyer information not covered by Paragraph 13.1.3already furnished to Buyer, utility necessary to timely provide the tenants operating expense and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with related reconciliation statements. If the heating, cooling, lighting, maintenance and operation net of the Property and any personal property included therein or used in connection therewith shall be prorated aforesaid prorations made as of the Closing Dateis a debit to Seller, then such debit shall be credited against the Purchase Price. If the net of the aforesaid prorations is a credit to Seller, then the Buyer shall pay such net credit amount to Seller at Closing. Any post-Closing adjustment shall endeavor to obtain readings of all utility meters as close be considered an increase or decrease to the Purchase Price and shall be paid in cash between Seller and Buyer]. Notwithstanding the foregoing, the parties agree to make adjustments and reconciliations, as appropriate, within 365 days after Closing Date (except with respect to property taxes which shall be handled as practicableset forth below).
13.1.6. To the extent not covered by Paragraph 13.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Closing Prorations. 13.1. The items described in this Paragraph following provisions shall be prorated apply to the division of funds, obligations and payments between the parties on a per diem basis as of Closing hereunder:
(on a) The parties shall adjust and prorate the basis following items as of actual calendar days and a 366-day year) so that credits and charges preceding or on 11:59 P.M. 12:01 a.m., Chantilly, Virginia time, on the Closing Date Date:
(1) All base rent, additional rent and other sums actually paid under the Leases (including, without limitation, amounts owed by tenants at the Property as periodic estimates of the costs of utilities, insurance, maintenance, repairs and other operating expenses), provided that delinquent amounts shall not be considered in such calculation. After the Closing Date, payments of monthly base rent received by Buyer shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1applied, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early paymentfirst, to the extent the adjustment is made during the discount period)current base monthly rent due and owing to Buyer, general second, to past-due base monthly rent owing to Buyer and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, shall be prorated as of the Closing Date based on starting with the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if anydelinquency, and other tenants which third, after the foregoing amounts are obligated paid in full, to make payments past-due base monthly rent unpaid for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") which amounts shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible for the payment of all Maintenance Expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess of amounts incurred by Seller during such period on account of such Maintenance Expenses with respect to such period; and
(ii) Purchaser shall pay payable to Seller the amount (if any) received by Purchaser on account after deducting therefrom any of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4. Insurance charges payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3, utility and fuel chargesBuyer's costs of collection, including, without limitation, charges for waterreasonable attorneys' fees. Buyer will have no obligation to incur any cost or expense or institute any litigation to collect delinquent base rent, electricityadditional rent and other sums actually payable under the Leases and owed to Seller, gasand except as otherwise expressly provided in Section 5.01 of this Agreement, gasolineSeller will not exercise any right to collect such amounts unless Buyer fails to use reasonable efforts to do so. If Buyer fails to use reasonable efforts to collect such delinquent amounts, steamSeller shall have the right to pursue all rights and remedies against the tenants to recover any such delinquencies, oil except that Seller shall not be entitled to dispossess or threaten to dispossess such tenants. Notwithstanding the foregoing provisions or any provision of this Agreement to the contrary, Seller shall have the right, without Buyer's consent or participation, and telephones used without obligation to furnish to Buyer copies of notices or correspondence given or received with regard to same, to initiate, pursue and settle all matters and collect and/or pay, as applicable, all amounts in connection with the heatingAT&T Claim, coolingand Seller hereby agrees to indemnify Buyer and hold Buyer harmless from and against all claims, lightingdemands, maintenance causes of action, losses, damages, debts, liabilities, costs and operation expenses (including, without limitation, attorneys' fees and disbursements) incurred by Buyer in connection with or arising out of the AT&T Claim. The provisions of this Section 8(a)(1) shall survive Closing.
(2) All property taxes, assessments and other governmental impositions of any kind or nature, including any special assessments or similar charges, accrued or imposed in any connection with the Property (collectively "TAXES"), which relate to the tax year or other applicable period within which the Closing occurs. If the amount of such Taxes is not known at Closing, the proration of such Taxes will be based on the amount of such Taxes for the previous fiscal period. As soon as the actual amount of such Taxes on the Property for the year of Closing is known, Seller and Buyer will readjust the amount of such Taxes to be paid by each party with the result that Seller will pay for those Taxes applicable to the Property up to the Closing Date, and Buyer will pay for those Taxes applicable to the Property from and after the Closing Date. All special assessments, if any, which are liens against the Property at the time of Closing shall be paid by Seller. The provisions of this Section 8(a)(2) shall survive Closing.
(3) All other income and ordinary operating expenses for or pertaining to the Property, including, but not limited to, all fees, costs and expenses under maintenance, trash removal, janitorial or other Service Contracts.
(b) Seller shall pay to Buyer, in cash at Closing or as a credit against the Purchase Price, the total amount of any personal property included therein or used security deposits paid by tenants pursuant to the Leases. Except as expressly provided in the last sentence of this subsection (b), all leasing commissions and tenant improvement costs arising in connection therewith with leases, lease amendments, lease terminations, licenses or other agreements with tenants or licensees which are entered into by Seller on or after the Effective Date and before Closing, and are approved or deemed approved by Buyer as provided in Section 5.02, shall be prorated as assumed and paid by Buyer, with an adjustment of the Purchase Price to be made at Closing in order to credit to Seller any payments of such amounts made by Seller prior to Closing. Prorations to be made with respect to the Lease Amendments are described in Section 3.03.
(c) Seller shall be entitled to the return of any deposit(s) posted by it with any utility company, and Seller shall pay all charges and notify each utility company serving the Property to terminate Seller's account, effective on the Closing Date. Seller shall endeavor cooperate with Buyer to obtain readings of all utility meters as close ensure a smooth transition with respect to the transfer of utilities. Except as otherwise expressly hereinafter provided in this subsection 8(c), Seller shall also transfer to Buyer its right to any deposit(s) or escrowed amount(s) posted by Seller in connection with any zoning or other land use proffer(s), with an adjustment of the Purchase Price to be made at Closing Date as practicablein order to credit to Seller such payments of such amounts made by Seller prior to Closing. The parties hereby acknowledge that Seller has previously posted an escrow in the amount of Ten Thousand Dollars ($10,000) with Loudoun County, Virginia (the "COUNTY ESCROW"), in connection with a proffer affecting the Property regarding certain road improvements in Westfields, The International Corporate Center at Dulles, of which the Property forms a part. The County Escrow is expected by Seller to be refunded in the near future. Notwithstanding any provision of this Agreement to the contrary, Seller shall not assign the County Escrow to Buyer at Closing; rather, Buyer hereby agrees to deliver such County Escrow to Seller immediately in the event such County Escrow is delivered to or received by Buyer. The provisions of this Section 8(c) shall survive Closing.
13.1.6(d) The obligations under this Section 8 shall survive Closing. To the extent not covered that errors are discovered in, or additional information becomes available with respect to, the prorations and allocations made at Closing, Seller and Buyer agree to make such post-Closing adjustments as may be necessary to correct any inaccuracy; however, all prorations shall be final no later than ninety (90) days after Closing (except for prorations and allocations of (i) ad valorem taxes, which shall be finalized within thirty (30) days after receipt of the tax bill for the tax year in which the Closing occurs, (ii) tenant rxxxxursables, which shall be finalized within thirty (30) after the reconciliations for calendar year 2001 have been completed, and (iii) prorations or allocations that are then currently in dispute, which shall be finalized when any such dispute is resolved). Except as otherwise provided in Section 8(a)(1), Seller agrees to deliver to Buyer all invoices and payments related to the Property received by Paragraph 13Seller after Closing. The provisions of this Section 8(d) shall survive Closing.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Corporate Office Properties Trust)
Closing Prorations. 13.1. The At the Closing, all items described in this Paragraph of income and expense of the Property shall be prorated between the parties on a per diem basis (as provided in this Section 11.5 on the basis of the actual calendar days and a 366-day year) so that credits and charges preceding or on 11:59 P.M. elapsed for the month in which the Closing occurs, as of midnight on the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on day immediately preceding the Closing Date and all days thereafter shall be allocated to PurchaserDate. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, Except as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early paymentthis Section 11.5, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, shall be prorated as of the Closing Date based on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs income and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible for the payment of all Maintenance Expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess shall be for the account of amounts incurred by Seller during such Seller, and income and expenses attributable to the period on and after the Closing Date shall be for the account of such Maintenance Expenses with respect to such period; and
(ii) Purchaser Buyer. Property taxes and assessments shall pay to Seller be prorated through escrow, and all other items of income and expense shall be prorated outside of escrow on the amount (if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4by the parties. Insurance charges Percentage rents payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5periods on or before the Closing Date shall be paid by Buyer to Seller within three (3) days of receipt. To Without limiting the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation generality of the Property and any personal property included therein or used in connection therewith foregoing, the following items shall be prorated through escrow as described above:
(a) Current rents collected by Seller under the Leases. With respect to any rent receivables carried by Seller under the Leases as of the Closing, Buyer shall pay Seller full value in immediately available funds at the Closing and Seller shall execute and deliver to Buyer at the Closing an assignment of all of Seller's right, title and interest with respect thereto.
(b) All current real and personal property taxes, non-delinquent bonds or improvement assessments, general and special, non-delinquent public or governmental charges or assessments affecting the Property (including current assessments, liens or encumbrances for sewer, water, drainage or other public improvements whether completed or commenced on, or prior to, the date of this Agreement). If the Closing Date occurs before the tax rate or assessment is fixed, the proration of such taxes and assessments by Title Company shall be made at the Closing based upon the most recent tax bills available.
(c) Water and sewer charges on the basis of the fiscal year for which assessed (if these are not prorated as part of a tax xxxx), but if there are water meters on the Real Property, Seller, to the extent it is able, shall furnish a reading effective the Closing Date, or if not feasible to do so, to a date not more than thirty (30) days prior to the Closing Date, and the unfixed meter charges based thereon for the intervening period shall be apportioned on the basis of such last reading. Upon the taking of a subsequent actual reading, such apportionment shall be readjusted and Seller or Buyer, as the case may be, shall promptly deliver to the other the amount determined to be due upon such readjustment. If Seller is unable to furnish such prior reading, any reading subsequent to the Closing Date shall be apportioned on a per diem basis from the date of the reading immediately prior thereto and Seller shall pay the proportionate charges due up to the Closing Date. Seller Unpaid water meter bills that are the obligations of tenants under their respective Leases and that are billed directly to such tenants shall endeavor to obtain readings not be adjusted.
(d) Amounts paid or payable in respect of all utility meters as close the Contracts which Buyer assumes at the Closing.
(e) Electricity, gas, telephone and other utilities and HVAC costs, expenses and income, except to the Closing Date as practicableextent that tenants pay such costs directly to the supplier of such services.
13.1.6. To the extent not covered by Paragraph 13.
Appears in 1 contract
Samples: Quarterly Report
Closing Prorations. 13.1. The items described in this Paragraph following shall be prorated between the parties on a per diem basis (on the basis of actual calendar days and a 366-day year) so that credits and charges preceding at or on 11:59 P.M. on promptly following the Closing Date shall be allocated to Seller between the parties:
(a) Real Estate Taxes and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1Personal Property Taxes. Real estate taxes Taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), including general and special assessments and the like water and sewerage charges) and personal property Taxes ("together, “2004 Property Taxes"”) for 19962004 shall be pro-rated between Sellers and Buyer by apportioning 2004 real estate Taxes between Sellers and Buyer in proportion to the number of days in 2004 up to and including the Closing Date, as to which such Taxes may be increased or decreased after the Closing, shall be prorated as the obligation of Sellers, and the number of days in 2004 following the Closing Date based on Date, as to which such Taxes shall be the most recent ascertainable amountobligation of Buyer and by apportioning 2004 personal property Taxes one-half to Buyer and one-half to Sellers. Purchaser shall promptly bill tenants making annual paymexxx for TaxesNo more than thirty (30) days before a payment of 2004 Property Taxes by Sellers, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") whether in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible customary procedures for the payment of Property Taxes, pursuant to audit findings or otherwise in accordance with applicable law, Sellers shall provide Buyer with a copy of the relevant return, assessment or other documentation or a certification of the amount of the payment to be made within such thirty (30) day period (a “Payment Certification”). At least one day before the due date of each payment of 2004 Property Taxes, Buyer shall pay to Sellers, by wire transfer of immediately available funds to an account designated by Sellers in writing, Buyer’s share of the total payment shown on such Payment Certification, as determined in accordance with this Section 1.9(a). Sellers shall pay, and indemnify and hold harmless Buyer against, all Maintenance Expenses attributable 2004 Property Taxes timely paid by Buyer to Sellers in accordance with this Section 1.9(a), all 2004 Property Taxes apportioned to Sellers in accordance with this Section 1.9(a) and all Property Taxes with respect to periods prior to 2004. Buyer shall indemnify and hold harmless Sellers against any liability in respect of time through 2004 Property Taxes apportioned to Buyer pursuant to this Section 1.9(a) that are not timely paid by Buyer to Sellers. This Section 1.9(a) shall survive the Closing until the lapse of the latest statute of limitations applicable to 2004 Property Taxes. Buyer shall, promptly upon receipt, provide to Sellers all notices, bills, assessments and other correspondence relating to 2004 Property Taxes or to Property Taxes for any Tax period or portion thereof ending on or before the Closing Date (or for any Tax period beginning before and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time ending after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect extent allocable to the period prior to the Closing Date in excess portion of amounts incurred by Seller during such period on account of such Maintenance Expenses with respect up to such period; and
(ii) Purchaser shall pay to Seller the amount (if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4. Insurance charges payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation of the Property and any personal property included therein or used in connection therewith shall be prorated as of including the Closing Date. Seller shall endeavor to obtain readings of all utility meters as close to the Closing Date as practicable).
13.1.6. To the extent not covered by Paragraph 13.
Appears in 1 contract
Closing Prorations. 13.1. The items 7.1 Prorations and adjustments to the Closing Payment, as described in this Paragraph 2.1, payable hereunder shall be made between Seller and Purchaser and shall be prorated between the parties on a per diem basis (on as of midnight of the basis of actual calendar days and a 366-day year) so that credits and charges preceding or on 11:59 P.M. on the Closing Date shall be allocated to Seller and credits and charges Date, such time on such day being the "Proration Date".
7.2 Real property taxes for the period after 11:59 P.M. on then (at the Closing Date Proration Date) current tax fiscal year and all days thereafter shall be allocated to Purchaser. As any installment of May 1, 1997, Seller real property taxes for any prior tax fiscal year not yet due and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, payable shall be prorated as of the Closing Date based on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining proportion to the period portions of such tax fiscal years elapsed prior to the Closing Proration Date and remaining after the Proration Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible for the payment of all Maintenance Expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and 7.3 Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time assessments made after the Closing Proration Date and shall be entitled to receive and retain from or imposed against the tenants all reimbursements Premises or any part thereof collected from tenants on account thereof with respect for governmental improvements affecting the Premises not substantially completed or installed prior to the Closing Proration Date (subject to Seller's warranties and thereafter. At representations set forth in Paragraph 5.1) and Seller shall provide to Purchaser a proration credit and be responsible for all of same for improvements substantially completed or installed prior to the ClosingProration Date, and each shall indemnify, defend, exonerate and save the other and its Related Parties harmless from any claims therefor or any liability, loss, cost or expense arising therefrom.
7.4 Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing all sales, use, excise and Seller shall receive as a credit an amount equal to other similar taxes and all Maintenance Expenses prepaid by Seller for periods after the Closing Date transfer taxes, conveyance taxes, documentary stamp taxes, deed taxes and not yet incurred.
13.1.3.2other similar taxes. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess of amounts incurred by Seller during such period on account of such Maintenance Expenses with respect to such period; and
(ii) Purchaser shall pay to Seller recording charges in respect of the amount (recordation of Seller's Deed.
7.5 Utilities, if any) received , payable by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4. Insurance charges payable under the Leases Seller, shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation of the Property and any personal property included therein or used in connection therewith shall be prorated as of the Closing Dateprorated. Seller shall endeavor to obtain meter readings as of all utility meters as close the Proration Date, and if such readings are obtained, there shall be no proration of such items and Seller shall pay the bills therefor for the period to the Closing Proration Date, and Purchaser shall pay the bills therefor for the period subsequent to the Proration Date as practicableand when rendered. If Seller is unable to obtain meter readings as of the Proration Date, utilities shall be prorated at the Proration Date based upon the most recent utility bills, adjusted for seasonality, and reprorated upon issuance of the actual bills.
13.1.67.6 Prepaid and unpaid current expenses and charges respecting expenses incurred in the operation of the Premises shall be prorated at and as of the Proration Date. To (However, fees paid by Seller with respect to certificates, permits, licenses, franchises, authorizations and approvals assigned by Seller to Purchaser at the extent Closing shall not covered be prorated, but shall be paid for and assumed entirely by Paragraph 13Seller.)
Appears in 1 contract
Closing Prorations. 13.1. The At Closing, the items described in this Paragraph of income and expense of the Property set forth below shall be prorated between the parties on a per diem basis (on the basis of actual calendar days and a 366365-day year) so that credits and charges preceding or on 11:59 P.M. , actual days elapsed for the month in which Closing occurs, as of midnight on the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, shall be prorated as of the Closing Date based on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to day immediately preceding the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs Income and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible for the payment of all Maintenance Expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess shall be for the account of amounts incurred by Seller during such Seller, and income and expenses attributable to the period on and after the Closing Date shall be for the account of Purchaser. The following items shall be prorated through escrow as described above:
10.8.1. All current real property taxes, non-delinquent bonds or improvement assessments, general and special, non-delinquent public or governmental charges or assessments affecting the Property (including current assessments, liens or encumbrances for sewer, water, drainage or other public improvements whether completed or commenced on, or prior to, the date of this Agreement). If the Closing Date occurs before the tax rate or assessment is fixed, the proration of such Maintenance Expenses with respect to such period; andtaxes and assessments by Title Company shall be made at Closing based upon the most recent tax bills available.
(ii) Purchaser shall pay to Seller 10.8.2. All current income from the amount Property (if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4. Insurance charges payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lightingall current utilities, maintenance charges and operation similar expenses of the Property and any personal property included therein or used in connection therewith Property, determined using the accrual method of accounting, shall be prorated between Seller and Purchaser as of the Closing Date and, to the extent of information then available, such prorations shall be made at the Closing.
10.8.3. Seller shall, prior to the Closing Date, prepare a schedule of prorations covering as many items to be prorated as practicable so such prorations can be made at the Closing, and deliver such schedule of prorations to Purchaser for its review and approval. Such prorations shall be adjusted, if necessary, and completed after the Closing as soon as final information becomes available. Seller and Purchaser agree to cooperate and to use their commercially reasonable good faith efforts to complete such prorations no later than thirty (30) days after the Closing Date. Monthly income and expense items shall be prorated on the basis of the actual days in any given month.
10.8.4. Income and expenses of the Property for the period before the Closing Date shall be for the account of Seller and such income and expenses for the period on and after the Closing Date shall be for the account of Purchaser. Seller shall endeavor to obtain readings of pay all utility meters as close taxes, assessments, invoices for goods furnished or services supplied, and other expenses relating to the Property that are allocable to the period before the Closing Date as practicableDate.
13.1.610.8.5. To In preparing the extent not covered by Paragraph 13prorations described in Section 10.8.3 above, Seller shall diligently and in good faith work to generate its best estimates of prorated amounts where estimates are required.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Closing Prorations. 13.1. The At Closing, the items described in this Paragraph of income and expense of the Property set forth below shall be prorated between the parties on a per diem basis (on the basis of actual calendar days and a 366365-day year) so that credits and charges , actual days elapsed for the month in which Closing occurs, as of midnight on the day immediately preceding or on 11:59 P.M. on the Closing Date shall be allocated to Seller and credits and charges for (the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, shall be prorated as of the Closing Date based on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Adjustment Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"”). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs Income and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible for the payment of all Maintenance Expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess shall be for the account of amounts incurred by Seller during such Seller, and income and expenses attributable to the period on and after the Closing Date shall be for the account of such Maintenance Expenses with respect to such period; andPurchaser. The following items shall be prorated through escrow as described above:
(iia) Purchaser All current real property taxes, non-delinquent bonds or improvement assessments, general and special, non-delinquent public or governmental charges or assessments affecting the Property (including current assessments, liens or encumbrances for sewer, water, drainage or other public improvements whether completed or commenced on or prior to the date of this Agreement). If the Closing Date occurs before the tax rate or assessment is fixed, the proration of such taxes and assessments by Title Company shall pay to Seller be made at Closing based upon the amount most recent tax bills available.
(b) All rental payments, additional rents, common area maintenance charges, charges for taxes and insurance premiums or for escalation thereof, if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date , and not theretofore reimbursed.
13.1.4. Insurance other charges payable under the Leases shall be adjusted (hereinafter collectively referred to as the “Rents”) received by Seller in the same manner as provided month in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To which the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation of the Property and any personal property included therein or used in connection therewith Closing Date occurs shall be prorated as of the Adjustment Date. With respect to any Rent arrearages under the Leases as of the Closing Date. Seller , such arrearages shall endeavor to obtain readings of all utility meters be treated as close to delinquent rent and if collected after the Closing Date shall be prorated as practicableprovided in Section 9.6(b) (ii).
13.1.6. To the extent not covered by Paragraph 13.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Closing Prorations. 13.1Purchaser shall obtain its own insurance coverage for the Property at Closing. The items described in this Paragraph Property expenses, including charges under the continuing Operating Agreements assumed by Purchaser, collected rents, and ad valorem taxes on the Property shall be prorated at the Closing, effective as of the Closing date, using the latest available computations of such items. Utilities shall be prorated between the parties on a per diem basis at Closing. Purchaser shall have all utilities in Seller's name transferred to Purchaser's name promptly following the Closing. All expenses which are prorated at Closing (on exclusive of any unknown claims related thereto, which shall remain the basis responsibility of actual calendar days and a 366-day yearSeller) so that credits and charges preceding or on 11:59 P.M. on the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller deemed a final proration and Purchaser shall jointly prepare a final proration statement be responsible for payment of such items when due. Except as prorated between the parties at Closing or as otherwise agreed by the parties in accordance with the provisions of this Paragraph 13 paragraph and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, shall be prorated as of the Closing Date based on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter providedparagraph 10A, Seller shall be responsible for all property expenses incurred, undertaken, or contracted for prior to Closing, and agrees to indemnify and hold Purchaser harmless from any claim, cost, or cause of action arising from any such expenses and liabilities, including court costs and attorney's fees in the payment defense thereof or in the enforcement of this indemnity. Tenant security deposits in the possession of Seller and prepaid rents shall be credited to Purchaser. Included in this sale are all Maintenance Expenses attributable delinquent rental accounts and all rents, issues, and profits of the Properties due or which may become due after Closing relating to periods of time through the Closing Date and shall be entitled occurring prior to receive and retain all reimbursements thereof collected from tenants on account thereof with respect Closing. In addition to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closingpurchase price, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess of amounts incurred by Seller during such period on account of such Maintenance Expenses with respect to such period; and
(ii) Purchaser shall pay to Seller the amount for Seller's prorata share of delinquent tenant rental accounts, exclusive of late charges and/or interest, at face value, but specifically excluding payment for delinquent accounts of tenants in Material Default (if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4. Insurance charges payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3hereinafter defined), utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation of the Property and any personal property included therein or used in connection therewith shall be prorated as of the Closing Date. Purchaser shall also pay Seller shall endeavor at Closing for Seller's prorata share of tenant reimbursements for CAM and real estate taxes due after Closing based upon the most recent estimate of such amounts as used in Seller's ledgers to obtain readings accrue for such items, specifically excluding any payment for reimbursables of all utility meters tenants in Material Default as close to of the Closing Date as practicable.
13.1.6Date. To the extent not covered by Paragraph 13.As used in this paragraph, Material Default shall mean any tenant (i) whose rental account is more than ninety (90) days delinquent, (ii) who is in bankruptcy or insolvency proceedings,
Appears in 1 contract
Samples: Real Estate Sale and Purchase Contract (Usp Real Estate Investment Trust)
Closing Prorations. 13.1. The items described in this Paragraph following shall be prorated between the parties on a per diem basis (on the basis of actual calendar days and a 366-day year) so that credits and charges preceding at or on 11:59 P.M. on promptly following the Closing Date shall be allocated to Seller between the parties:
(a) Real Estate Taxes and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1Personal Property Taxes. Real estate taxes Taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), including general and special assessments and the like water and sewerage charges) and personal property Taxes (together, "2004 Property Taxes") for 19962004 shall be pro-rated between Sellers and Buyer by apportioning 2004 real estate Taxes between Sellers and Buyer in proportion to the number of days in 2004 up to and including the Closing Date, as to which such Taxes may be increased or decreased after the Closing, shall be prorated as the obligation of Sellers, and the number of days in 2004 following the Closing Date based on Date, as to which such Taxes shall be the most recent ascertainable amountobligation of Buyer and by apportioning 2004 personal property Taxes one-half to Buyer and one-half to Sellers. Purchaser shall promptly bill tenants making annual paymexxx for TaxesNo more than thirty (30) days before a payment of 2004 Property Taxes by Sellers, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") whether in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible customary procedures for the payment of Property Taxes, pursuant to audit findings or otherwise in accordance with applicable law, Sellers shall provide Buyer with a copy of the relevant return, assessment or other documentation or a certification of the amount of the payment to be made within such thirty (30) day period (a "Payment Certification"). At least one day before the due date of each payment of 2004 Property Taxes, Buyer shall pay to Sellers, by wire transfer of immediately available funds to an account designated by Sellers in writing, Buyer's share of the total payment shown on such Payment Certification, as determined in accordance with this Section 1.9(a). Sellers shall pay, and indemnify and hold harmless Buyer against, all Maintenance Expenses attributable 2004 Property Taxes timely paid by Buyer to Sellers in accordance with this Section 1.9(a), all 2004 Property Taxes apportioned to Sellers in accordance with this Section 1.9(a) and all Property Taxes with respect to periods prior to 2004. Buyer shall indemnify and hold harmless Sellers against any liability in respect of time through 2004 Property Taxes apportioned to Buyer pursuant to this Section 1.9(a) that are not timely paid by Buyer to Sellers. This Section 1.9(a) shall survive the Closing until the lapse of the latest statute of limitations applicable to 2004 Property Taxes. Buyer shall, promptly upon receipt, provide to Sellers all notices, bills, assessments and other correspondence relating to 2004 Property Taxes or to Property Taxes for any Tax period or portion thereof ending on or before the Closing Date (or for any Tax period beginning before and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time ending after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect extent allocable to the period prior to the Closing Date in excess portion of amounts incurred by Seller during such period on account of such Maintenance Expenses with respect up to such period; and
(ii) Purchaser shall pay to Seller the amount (if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4. Insurance charges payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation of the Property and any personal property included therein or used in connection therewith shall be prorated as of including the Closing Date. Seller shall endeavor to obtain readings of all utility meters as close to the Closing Date as practicable).
13.1.6. To the extent not covered by Paragraph 13.
Appears in 1 contract
Closing Prorations. 13.1. The items described in this Paragraph shall be prorated between the parties on a per diem basis (on the basis of actual calendar days and a 366-day year) so that credits and charges preceding or on 11:59 P.M. on the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after At the Closing, all items of income and expense ------------------- of the Property shall be prorated as provided in this Section 11.5 on the basis ------------ of a 360-day year, actual days elapsed for the month in which the Closing Date based occurs, as of midnight on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to day immediately preceding the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter providedprovided in this Section 11.5, Seller shall be responsible for the payment of all Maintenance Expenses income and expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the ------------ period prior to the Closing Date in excess shall be for the account of amounts incurred Seller, and income and expenses attributable to the period on and after the Closing Date shall be for the account of Buyer. Property taxes and assessments shall be prorated through escrow, and all other items of income and expense shall be prorated outside of escrow on the Closing Date by the parties. Without limiting the generality of the foregoing, the following items shall be prorated through escrow as described above:
(a) Current rents collected by Seller during such period on account under the New Lease.
(b) All current real and personal property taxes, non-delinquent bonds or improvement assessments, general and special, non-delinquent public or governmental charges or assessments affecting the Property (including current assessments, liens or encumbrances for sewer, water, drainage or other public improvements whether completed or commenced on, or prior to, the date of this Agreement). If the Closing Date occurs before the tax rate or assessment is fixed, the proration of such Maintenance Expenses with respect taxes and assessments by Title Company shall be made at the Closing based upon the most recent tax bills available, and adjusted when the tax rate or assessment is fixed by Seller or Buyer promptly delivering to the other the amount determined to be due.
(c) Water and sewer charges on the basis of the fiscal year for which assessed (if these are not prorated as part of a tax xxxx), but if there are water meters on the Real Property, Seller, to the extent it is able, shall furnish a reading effective the Closing Date, or if not feasible to do so, to a date not more than thirty (30) days prior to the Closing Date, and the unfixed meter charges based thereon for the intervening period shall be apportioned on the basis of such last reading. Upon the taking of a subsequent actual reading, such apportionment shall be readjusted and Seller or Buyer, as the case may be, shall promptly deliver to the other the amount determined to be due upon such readjustment. If Seller is unable to furnish such prior reading, any reading subsequent to the Closing Date shall be apportioned on a per diem basis from the date of the reading immediately prior thereto and Seller shall pay the proportionate charges due up to the Closing Date. Unpaid water meter bills that are the obligations of tenants under their respective Leases and that are billed directly to such period; andtenants shall not be adjusted.
(iid) Purchaser Amounts paid or payable in respect of the Contracts which Buyer assumes at the Closing.
(e) Electricity, gas, telephone and other utilities and HVAC costs, expenses and income, except to the extent that tenants pay such costs directly to the supplier of such services.
(f) In addition to the foregoing, at Closing, Buyer shall pay to Seller an amount equal to the amount (Reimbursed Costs if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursedClosing.
13.1.4. Insurance charges payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation of the Property and any personal property included therein or used in connection therewith shall be prorated as of the Closing Date. Seller shall endeavor to obtain readings of all utility meters as close to the Closing Date as practicable.
13.1.6. To the extent not covered by Paragraph 13.
Appears in 1 contract
Closing Prorations. 13.1. The At Closing, the items described in this Paragraph of income and expense of the Property set forth below shall be prorated between the parties on a per diem basis (on the basis of actual calendar days and a 366365-day year) so that credits and charges preceding or on 11:59 P.M. , actual days elapsed for the month in which Closing occurs, as of midnight on the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, shall be prorated as of the Closing Date based on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to day immediately preceding the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs Income and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible for the payment of all Maintenance Expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess shall be for the account of amounts incurred by Seller during such Seller, and income and expenses attributable to the period on and after the Closing Date shall be for the account of such Maintenance Expenses with respect to such period; andPurchaser. The following items shall be prorated through escrow as described above:
10.5.1. All current real property taxes, non-delinquent bonds or improvement assessments, general and special, non-delinquent public or governmental charges or assessments affecting the Property (ii) Purchaser shall pay to Seller including current assessments, liens or encumbrances for sewer, water, drainage or other public improvements whether completed or commenced on, or prior to, the amount (if any) received by Purchaser on account date of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to this Agreement). If the Closing Date occurs before the tax rate or assessment is fixed, the proration of such taxes and not theretofore reimbursedassessments by Title Company shall be made at Closing based upon the most recent tax bills available.
13.1.410.5.2. Insurance charges payable under All current reimbursements and other income from the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) Property and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lightingall current utilities, maintenance charges and operation similar expenses of the Property and any personal property included therein or used in connection therewith shall be prorated between Seller and Purchaser as of the Closing DateDate and, to the extent of information then available, such prorations shall be made at the Closing.
10.5.3. Seller and Purchaser shall endeavor to obtain readings of all utility meters as close use their commercially reasonable good faith efforts not less than five (5) Business Days prior to the Closing Date to prepare a schedule of prorations covering as practicablemany items to be prorated as practicable so such prorations can be made at the Closing. Such prorations shall be adjusted, if necessary, and completed after the Closing as soon as final information becomes available. Seller and Purchaser agree to cooperate and to use their commercially reasonable good faith efforts to complete such prorations no later than thirty (30) days after the Closing Date. Monthly income and expense items shall be prorated on the basis of the actual days in any given month.
13.1.610.5.4. To Income and expenses of the extent Property for the period before the Closing Date shall be for the account of Seller and such income and expenses for the period on and after the Closing Date shall be for the account of Purchaser. Seller shall pay all taxes, assessments, invoices for goods furnished or services supplied, and other expenses relating to the Property that are allocable to the period before the Closing Date. The parties acknowledge there may be a credit due to Seller as a result of credits due to solar energy use on the Property.
10.5.5. In preparing the prorations described in Section 10.5.3 above, Seller shall diligently and in good faith work to generate its best estimates of prorated amounts where estimates are required. Any such prorations which cannot covered be determined as of the Closing Date be paid by Paragraph 13Purchaser to Seller, or by Seller to Purchaser, as the case may be, as soon as practicable following the Close of Escrow. If any prorations, apportionments or computations made under this Section require final adjustment, Purchaser and Seller shall make the appropriate adjustments promptly when accurate information becomes available. Any corrected adjustment or proration will be paid in cash to the party entitled to it. The obligations of the parties to make the adjustments shall survive the Closing.
Appears in 1 contract
Closing Prorations. 13.1. The At the Closing, all items described in this Paragraph of income and expense of the Property shall be prorated between the parties on a per diem basis (as provided in this Section 11.5 on the basis of the actual calendar days and a 366-day year) so that credits and charges preceding or on 11:59 P.M. elapsed for the month in which the Closing occurs, as of midnight on the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on day immediately preceding the Closing Date and all days thereafter shall be allocated to PurchaserDate. As of May 1, 1997, Seller and Purchaser shall jointly prepare a final proration statement in accordance with the provisions of this Paragraph 13 and a final adjusting payment shall then be made, Except as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early paymentthis Section 11.5, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, shall be prorated as of the Closing Date based on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs income and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter provided, Seller shall be responsible for the payment of all Maintenance Expenses attributable to periods of time through the Closing Date and shall be entitled to receive and retain all reimbursements thereof collected from tenants on account thereof with respect to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closing, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess shall be for the account of amounts incurred by Seller during such Seller, and income and expenses attributable to the period on and after the Closing Date shall be for the account of such Maintenance Expenses with respect to such period; and
(ii) Purchaser Buyer. Property taxes and assessments shall pay to Seller be prorated through escrow, and all other items of income and expense shall be prorated outside of escrow on the amount (if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4by the parties. Insurance charges Percentage rents payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5periods on or before the Closing Date shall be paid by Buyer to Seller within three (3) days of receipt. To Without limiting the extent not covered by Paragraph 13.1.3, utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation generality of the Property and any personal property included therein or used in connection therewith foregoing, the following items shall be prorated through escrow as described above:
(a) Current rents collected by Seller under the Leases. With respect to any rent receivables carried by Seller under the Leases as of the Closing, Buyer shall pay Seller full value in immediately available funds at the Closing and Seller shall execute and deliver to Buyer at the Closing an assignment of all of Seller's right, title and interest with respect thereto.
(b) All current real and personal property taxes, non-delinquent bonds or improvement assessments, general and special, non-delinquent public or governmental charges or assessments affecting the Property (including current assessments, liens or encumbrances for sewer, water, drainage or other public improvements whether completed or commenced on, or prior to, the date of this Agreement). If the Closing Date occurs before the tax rate or assessment is fixed, the proration of such taxes and assessments by Title Company shall be made at the Closing based upon the most recent tax bills available.
(c) Water and sewer charges on the basis of the fiscal year for which assessed (if these are not prorated as part of a tax bill), xut if there are water meters on the Real Property, Seller, to the extent it is able, shall furnish a reading effective the Closing Date, or if not feasible to do so, to a date not more than thirty (30) days prior to the Closing Date, and the unfixed meter charges based thereon for the intervening period shall be apportioned on the basis of such last reading. Upon the taking of a subsequent actual reading, such apportionment shall be readjusted and Seller or Buyer, as the case may be, shall promptly deliver to the other the amount determined to be due upon such readjustment. If Seller is unable to furnish such prior reading, any reading subsequent to the Closing Date shall be apportioned on a per diem basis from the date of the reading immediately prior thereto and Seller shall pay the proportionate charges due up to the Closing Date. Seller Unpaid water meter bills that are the obligations of tenants under their respective Leases and that are billed directly to such tenants shall endeavor to obtain readings not be adjusted.
(d) Amounts paid or payable in respect of all utility meters as close the Contracts which Buyer assumes at the Closing.
(e) Electricity, gas, telephone and other utilities and HVAC costs, expenses and income, except to the Closing Date as practicableextent that tenants pay such costs directly to the supplier of such services.
13.1.6. To the extent not covered by Paragraph 13.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Network Appliance Inc)
Closing Prorations. 13.1Purchaser shall obtain its own insurance coverage for the Property at Closing. The items described in this Paragraph Property expenses, including charges under the continuing Operating Agreements assumed by Purchaser, collected rents, and ad valorem taxes on the Property shall be prorated at the Closing, effective as of the Closing date, using the latest available computations of such items. Utilities shall be prorated between the parties on a per diem basis at Closing. Purchaser shall have all utilities in Seller's name transferred to Purchaser's name promptly following the Closing. All expenses which are prorated at Closing (on exclusive of any unknown claims related thereto, which shall remain the basis responsibility of actual calendar days and a 366-day yearSeller) so that credits and charges preceding or on 11:59 P.M. on the Closing Date shall be allocated to Seller and credits and charges for the period after 11:59 P.M. on the Closing Date and all days thereafter shall be allocated to Purchaser. As of May 1, 1997, Seller deemed a final proration and Purchaser shall jointly prepare a final proration statement be responsible for payment of such items when due. Except as prorated between the parties at Closing or as otherwise agreed by the parties in accordance with the provisions of this Paragraph 13 paragraph and a final adjusting payment shall then be made, as provided in Paragraph 13.3 hereof.
13.1.1. Real estate taxes (on the basis of allowable discounts for early payment, to the extent the adjustment is made during the discount period), general and special assessments and the like ("Taxes") for 1996, as such Taxes may be increased or decreased after the Closing, shall be prorated as of the Closing Date based on the most recent ascertainable amount. Purchaser shall promptly bill tenants making annual paymexxx for Taxes, if any, and other tenants which are obligated to make payments for taxes other than on a monthly basis and which remain liable for Taxes for a period of Seller's ownership (said annual paying tenants and non-monthly paying tenants are hereinafter collectively referred to as "Non-Monthly Tax Payors") in accordance with their respective Leases. Upon Purchaser's receipt of the payment of Taxes by each Non-Monthly Tax Payor, said payment shall be prorated as of the Closing Date and Purchaser shall promptly pay to Seller the prorated portion of the collected Taxes pertaining to the period prior to the Closing Date.
13.1.2. Minimum rent (exclusive of delinquent rents, but including prepaid rents) and other fixed charges for operational expenses and taxes paid under the Leases ("Minimum Rent") shall be prorated as of the Closing Date.
13.1.3. Certain of the Leases provide for reimbursement to landlord of maintenance and operation charges, taxes, insurance and other expenses (herein collectively referred to as "Maintenance Expenses"). Some Leases provide for a determination of the tenant's share of Maintenance Expenses on an annual basis but provide that an estimated amount thereof (either in the aggregate or for specified components thereof) shall be paid by tenant to landlord monthly during the course of the year with a final adjustment to be made after the close of the year when such costs and expenses have been finally determined. Seller and Purchaser agree as follows with respect to Maintenance Expenses:
13.1.3.1. Except as hereinafter providedparagraph 10A, Seller shall be responsible for all property expenses incurred, undertaken, or contracted for prior to Closing, and agrees to indemnify and hold Purchaser harmless from any claim, cost, or cause of action arising from any such expenses and liabilities, including court costs and attorney's fees in the payment defense thereof or in the enforcement of this indemnity. Tenant security deposits in the possession of Seller and prepaid rents shall be credited to Purchaser. Included in this sale are all Maintenance Expenses attributable delinquent rental accounts and all rents, issues, and profits of the Properties due or which may become due after Closing relating to periods of time through the Closing Date and shall be entitled occurring prior to receive and retain all reimbursements thereof collected from tenants on account thereof with respect Closing. In addition to the period through the Closing Date; and Purchaser shall be responsible for the payment of all Maintenance Expenses attributable to periods of time after the Closing Date and shall be entitled to receive and retain from the tenants all reimbursements thereof collected from tenants on account thereof with respect to the Closing Date and thereafter. At the Closingpurchase price, Seller shall pay to Purchaser the amount of ascertainable Maintenance Expenses incurred but unpaid at the Closing and Seller shall receive as a credit an amount equal to all Maintenance Expenses prepaid by Seller for periods after the Closing Date and not yet incurred.
13.1.3.2. As a part of the final proration referred to in Section 13.3 hereof:
(i) Seller shall pay to Purchaser the amounts (if any) received by Seller from tenants on account of Maintenance Expenses with respect to the period prior to the Closing Date in excess of amounts incurred by Seller during such period on account of such Maintenance Expenses with respect to such period; and
(ii) Purchaser shall pay to Seller the amount for Seller's prorata share of delinquent tenant rental accounts, exclusive of late charges and/or interest, at face value, but specifically excluding payment for delinquent accounts of tenants in Material Default (if any) received by Purchaser on account of Maintenance Expenses paid by tenants with respect to said year which are attributable to Maintenance Expenses incurred by Seller prior to Closing Date and not theretofore reimbursed.
13.1.4. Insurance charges payable under the Leases shall be adjusted in the same manner as provided in 13.1.3.2(i) and (ii) above with respect to Maintenance Expenses.
13.1.5. To the extent not covered by Paragraph 13.1.3hereinafter defined), utility and fuel charges, including, without limitation, charges for water, electricity, gas, gasoline, steam, oil and telephones used in connection with the heating, cooling, lighting, maintenance and operation of the Property and any personal property included therein or used in connection therewith shall be prorated as of the Closing Date. Purchaser shall also pay Seller at Closing for Seller's prorata share of tenant reimbursements for CAM and real estate taxes due after Closing based upon the most recent estimate of such amounts as used in Seller's ledgers to accrue for such items, specifically excluding any payment for reimbursables of tenants in Material Default as of the Closing Date. As used in this paragraph, Material Default shall endeavor mean any tenant (i) whose rental account is more than ninety (90) days delinquent, (ii) who is in bankruptcy or insolvency proceedings, (iii) has vacated the Property and is delinquent in payment of rent for more than thirty (30) days, or (iv) has indicated in writing its inability or refusal to obtain readings of all utility meters as close pay its account. Subject only to the payments and prorations set forth in this paragraph, all rent issues and profits of the Properties of every nature due or paid after Closing Date as practicableshall be the property of Purchaser.
13.1.6. To the extent not covered by Paragraph 13.
Appears in 1 contract
Samples: Real Estate Sale and Purchase Contract (Usp Real Estate Investment Trust)
