Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing. (a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing. (b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing. (c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 4 contracts
Samples: Purchase and Sale Agreement (Dsi Realty Income Fund Viii), Purchase and Sale Agreement (Strategic Storage Growth Trust, Inc.), Purchase and Sale Agreement (Dsi Realty Income Fund Vii)
Proration. All rents, other amounts payable by the tenants under the Leases (a) The Buyer and the Additional LeasesSeller agree that all of the --------- items normally prorated, if anyincluding those listed below, and all other income with respect relating to the Property for business and operation of the month in which Purchased Assets shall be prorated as of the Closing occursDate, with the Seller liable to the extent collected by Seller on or before such items relate to any time period through the Closing Date, and the Buyer liable to the extent such items relate to periods subsequent to the Closing Date:
(i) personal property, real estate estate, occupancy and personal property taxes any other Taxes, assessments and other assessments charges, if any, on or with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits business and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day operation of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after ClosingPurchased Assets. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) aboveaddition, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant the Seller is subject to Taxes, assessments and other charges on property of which the Purchased Assets comprises only a portion, the portion of such Taxes, assessments and other charges allocated to the Purchased Assets and subject to proration by this Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing 3.4 shall be retained determined by Purchaserreference to the relative value of the Purchased Assets, as determined by the Purchase Price paid by the Buyer, compared with the value of the Seller's property subject to such Taxes, assessments and other charges, as assessed by the relevant taxing authority;
(ii) rent, Taxes and other items payable by or to the Seller shall have no rights under any of the Seller Agreements to be assigned to and assumed by the Buyer hereunder;
(iii) any permit, license or registration fees with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents Environmental Permit or other income are actually received by SellerPermit; and
(iv) sewer rents and charges for water, Seller shall immediately remit the sametelephone, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingelectricity and other utilities.
(b) If In connection with such proration, in the event that actual figures are not available at the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current yearDate, the apportionment of taxes proration shall be based upon the basis actual amount of the tax rate such Taxes or fees for the preceding year, including all matters appearing on year (or appropriate period) for which actual Taxes or fees are available and such Taxes or fees shall be reprorated upon request of either the tax xxxx for such year, whether ad valorem Seller or non-ad valorem, applied to the latest assessed valuationBuyer made within sixty (60) days of the date that the actual amounts become available. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate Seller and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties Buyer agree to adjust the furnish each other with such documents and other records as may be reasonably requested in order to confirm all adjustment and proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property calculations made pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing3.4.
Appears in 3 contracts
Samples: Asset Sale Agreement (Sierra Pacific Power Co), Asset Sale Agreement (Sierra Pacific Power Co), Asset Sale Agreement (Sierra Pacific Power Co)
Proration. All rents, other amounts payable by the tenants under the Leases General and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and special real estate and personal property taxes other ad valorem Taxes and assessments and other similar state or local Taxes, fees, charges and assessments with in respect to of the Property for Personal Property, if applicable, on the basis of the fiscal year in which the Closing occurs, whenever imposed or assessed, shall be prorated between Buyer and Seller as of the Effective Time (it being understood that Buyer is liable for the same to the extent accruing after the Effective Time and Seller for those items to the extent accruing before the Effective Time, based on the number of days falling on or prior to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Sellerone hand, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on falling after the Closing Date, if possible; otherwise utilities shall be prorated at Closingon the other hand). Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing Date shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid Tax rate or assessment is fixed for the month in which the Closing occurssuch fiscal year, the apportionment of such rents Taxes and other amounts and other income payments at the Closing shall be calculated as follows: (i) if based upon the Closing occurs from and after the first and through and including the fifteenth day of any calendar monthmost recently ascertainable Tax bills; provided, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, Buyer and Seller shall receive a credit for all rentals payable but not yet paid recalculate and re-prorate said Taxes and payments and make the necessary cash adjustments promptly upon the issuance, and on the basis, of the actual Tax bills received for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the fiscal year in which the Closing occurs, occurs and the parties agree amount of any payments in lieu of Tax made with respect to adjust the proration of taxes and, if necessary, to refund or repay any such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges fiscal year. If any amount required to be apportioned hereunder is paid upon transfer by Buyer, on the one hand, or Seller, on the other hand, then Seller or Buyer, as the case may be, shall promptly reimburse the paying party for the non-paying party’s share of such apportioned amounts. Similarly, if Buyer, on the Property pursuant one hand, or Seller, on the other hand, receives a refund of any amounts that are required to any declaration or restriction affecting be apportioned hereunder, then the Property. The terms recipient of such refund shall promptly pay to the other party such other party’s share of such refund as determined in accordance with the foregoing apportionment provisions (assuming that Buyer and provisions Seller contributed to the applicable amount payment in accordance with the first two sentences of this Section 6.3 shall expressly survive Closing13.3).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Equifax Inc), Asset Purchase Agreement (Computer Sciences Corp)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Tower Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s 's name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Tower Leases and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s 's receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s 's prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.), Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Proration. (a) All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Closing, apportionment for any item not yet fixed shall be made in accordance with the terms of Section 6.3(b) below. Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) If any adjustment or apportionment is miscalculated at the Closing, or the complete and final information necessary for any adjustment is unavailable at the Closing, the affected adjustment shall be calculated and readjusted after the Closing upon discovery of such miscalculation or receipt of such final information, as applicable.
(d) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive for a period of twelve (12) months following the Closing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Strategic Storage Growth Trust, Inc.)
Proration. All rents(a) Seller and Purchaser agree to adjust, other amounts payable by as of 11:59 p.m. on the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before day immediately preceding the Closing Date, and the following (collectively, the "Proration Items"): real estate and personal property taxes and other assessments with respect (subject to the Property terms of Section 7.3(d) below), utility bills (except as hereinafter provided), collected Rents (subject to the terms of Section 7.3(b) below) and Operating Expenses (subject to the terms of Section 7.3(c) below) payable by the owner of the Property. Seller will be charged and credited for the year in which amount of all of the Closing occurs, shall be prorated Proration Items relating to the period up to and including the Closing Date, with and Purchaser receiving will be charged and credited for all of the benefits and burdens of ownership on Proration Items relating to the period after the Closing Date. To the extent any such real estate, personal property taxes Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and other assessments with respect submitted to Purchaser for Purchaser's written approval prior to the Property are unknown or otherwise not accounted Closing Date (the "Closing Statement"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to Title Company for purposes of making the proration adjustment at Closing. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller’s obligation ) or by Seller to pay Purchaser Seller’s prorata share (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of said amounts (as calculated in accordance with the previous sentence) shall survive Purchase Price at the Closing. Should any rollback or similar taxes If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be due made at Closing on the basis of the best evidence then available; such prorations shall be conclusive and payable binding on or after the parties without further adjustment. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final billxxxx xxx utilities will be made if possible as of the Closing Date, in which event no proration will be made at Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the transaction contemplated hereby, such taxes shall be the sole responsibility of Sellerutility providers, and Seller hereby agrees Purchaser will be obligated to indemnifymake its own arrangements for deposits with the utility providers. "Rents" shall mean and include fixed monthly rentals, defend additional rentals, percentage rentals, escalation rentals (which include each Tenant's proportionate share of building operation and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller maintenance costs and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid expenses as provided for under the Contracts which Purchaser elects applicable Lease, to assume at Closing shall be prorated between Seller the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and Purchaser at Closing.
(a) If the Closing shall occur before rents other sums and all other amounts charges payable by the tenants Tenants under the Leases or from other occupants or users of the Property, but excluding amounts received from Tenants under Leases for Operating Expenses. "Operating Expenses" shall mean operating expenses and the Additional Leases have actually been paid for the month in which the Closing occurscommon area maintenance charges, the apportionment of such rents including utilities, insurance and other amounts and other income shall be calculated as follows: (i) if charges, under the Closing occurs from and after the first and through and including the fifteenth day of any calendar monthLeases whether deemed additional rent or otherwise, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingexcluding Rents.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Murray Income Properties Ii LTD), Purchase and Sale Agreement (Murray Income Properties I LTD)
Proration. All rentsNotwithstanding Sections 1.6 and 1.7, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect immediately prior to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, the Purchase Price Balance shall be adjusted to account for the following items of income and expense, which shall be prorated (as applicable) on a per diem basis as if Seller owned the Portfolio for the entire day on the Closing Date:
(a) All real estate and personal property taxes due and other payable in or for the calendar year in which the Closing occurs and installments of special assessments with respect due and payable prior to the Property Closing Date. If at the time of Closing, the tax rate or the assessed valuation for the year in which the Closing occursoccurs has not yet been fixed, real estate and personal property taxes shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be based upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed established for the year previous tax year. Except for errors made in which calculation or in the Closing occursuse of incorrect data, the parties agree to adjust the proration of real estate and personal property taxes and, if necessary, to refund or repay such sums as at Closing shall be necessary to effect such adjustment, which obligation expressly final and no subsequent adjustments for variances in the actual tax rate or assessed valuation shall survive Closingbe made.
(b) All installments of special assessments not yet due and payable shall be paid by Purchaser.
(c) Current rents, advance rentals, and other charges payable by tenants under the Leases; premiums under assigned insurance policies (if any) and utility charges and deposits made by Seller with respect to common area utilities. Notwithstanding the foregoing sentence, any security deposits held by Seller or its Affiliates with respect to the Portfolio Properties shall be, at Seller's election, either (i) transferred to Purchaser at Closing or (ii) applied against the Purchase Price Balance payable pursuant to Section 1.1; provided, however, that if Seller makes the election pursuant to clause (ii), Seller shall provide Purchaser with a schedule setting forth the name of each tenant who has a security deposit and the amount of such deposit.
(d) Section 1.9(d)(i) of the Seller Disclosure Letter sets forth a list as of the date hereof of all tenant receivables related to the Portfolio Properties less than 60 days past due. Section 1.9(d)(ii) of the Seller Disclosure Letter sets forth a list as of the date hereof of all tenant receivables related to the Portfolio Properties 60 days or more past due. Each of Section 1.9(d)(i) and 1.9(d)(ii) of the Seller Disclosure Letter shall be updated immediately prior to the Closing to reflect tenant receivables related to the Portfolio Properties less than 60 days past due as of the Closing Date and tenant receivables 60 days or more past due, in each case, as reflected on the consolidated books and records of Seller and its Subsidiaries as of the Closing Date. Notwithstanding anything to the contrary herein, Purchaser shall acquire all such tenant receivables referred to on Section 1.9(d)(i) and 1.9(d)(ii) of the Seller Disclosure Letter but shall only pay all assessmentsat the Closing to Seller (by wire transfer to the bank account or bank accounts per the wire transfer instructions on Section 1.3(b) of the Seller Disclosure Letter in immediately available funds) an amount equal to the aggregate amount of the tenant receivables referred to on Section 1.9(d)(i) of the Seller Disclosure Letter as updated as of the Closing Date and provided further that, contributionsnotwithstanding anything to the contrary herein, fees no tenant receivables shall, other than pursuant to Section 1.9(c) and related charges required this Section 1.9(d), be subject to any proration whatsoever or any adjustments to proration.
(e) All other items of accrued or prepaid income and expenses shall be prorated on an accrual basis as of the Closing Date on the basis of the most recent ascertainable amounts of or other reliable information in respect to each such item of income and expenses.
(f) Refundable cash or other refundable deposits posted with utility companies or other entities in connection with the Portfolio which are assignable and which are assumed by Purchaser shall be credited to Seller at Closing, or at Seller's option, Seller shall be entitled to receive and retain such refundable cash and deposits.
(g) To the extent any of the above prorations (other than pursuant to Section 1.9(d)) are based on estimates or are later (but in no event more than 90 days after the Closing) determined to be paid upon transfer inaccurate, Purchaser and Seller shall appropriately adjust the prorations as soon as practicable after actual income and expenses have been ascertained, but in any event no later than ninety days after the Closing Date (with Seller responsible for paying any amounts determined to be owing to Purchaser as a result of such adjustment and Purchaser responsible for paying any amounts determined to be owing to Seller as a result of such adjustment). During such ninety-day period, each of Seller and Purchaser shall cooperate reasonably with the Property pursuant other in connection with such adjustment. There shall be no prorations or adjustments to any declaration the Purchase Price Balance except as specified in this Section 1.9 or restriction affecting elsewhere in this Agreement, and the Property. The terms and provisions of this Section 6.3 1.9 shall survive the Closing for purposes of this Section 1.9(g) for such ninety-day period, after the end of such period, this Section 1.9 shall terminate and no further prorations shall be made.
(h) Except as otherwise expressly survive Closingprovided in this Agreement, all prorations provided for herein shall be final.
Appears in 2 contracts
Samples: Transaction Agreement (Affordable Residential Communities Inc), Transaction Agreement (Chateau Communities Inc)
Proration. All The following items shall be prorated at Closing: (i) all rents, other amounts payable by the tenants under the Leases and the Additional Space Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and (ii) real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated and (iii) all operating expenses relating to the Closing Dateownership and operation of the Property, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To If permitted by the extent any such real estateapplicable utility providers, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date; otherwise, if possible; otherwise utilities shall be prorated between Seller and Purchaser at Closing, with such proration to be readjusted at such time as final utility bills become available. Any amounts unpaid under the Contracts which Purchaser elects or is obligated to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Space Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as followsupon the basis of such rents, other amounts and other income received by Seller. Subsequent to the Closing, if any such rents and other income are received by Purchaser, all such amounts shall be applied in the following order: (i) if first to rent due for the month or months following the month in which Closing occurs from and after the first and through and including the fifteenth day of any calendar monthto keep rent current, then Purchaser shall receive a credit (ii) next, to delinquent rent due for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid (iii) the balance to delinquent rent due for the period between the first of prior to the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all occurs. Any such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance Seller shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any such rents or and other income payable to Purchaser, as provided above, are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof thereof, calculated as aforesaid, to PurchaserPurchaser no later than thirty (30) days after Seller’s receipt. Seller agrees that, after Following the Closing, it Purchaser agrees, upon two (2) days’ prior notice from Seller, to provide Seller with access to Purchaser’s books, records and accounts relating to the operation of the Property at Purchaser’s notice address set forth in Section 9.1 below and during standard business hours in order that Seller may verify compliance with the preceding terms and provisions of this Section 6.3(a). The obligations of the parties under this Section 6.3(a) expressly shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the survive Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon based on the basis most current and accurate billing information available. Should such proration not be based on the actual amount of the tax rate taxes for the preceding yearperiod in question and should such proration prove to be inaccurate upon receipt of the actual bills for the Property, including all matters appearing on the tax xxxx for such yearthen, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to extent such amount exceeds One Thousand and No/100 Dollars ($1,000.00), either Seller or Purchaser may demand within one (1) year after Closing a payment from the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay other party correcting such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closingmalapportionment.
(c) Seller shall pay be entitled to receive refunds for any and all assessmentsdeposits which Seller has made with utility companies, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the PropertyPurchaser shall replace such deposits at Closing. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyutilities, water and sewer meter charges and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the tax year in which the Closing occurs, shall be prorated to as of 11:59 p.m. New York time on the day before the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To , provided however, if the extent any such real estate, personal property taxes and other assessments with respect to funds representing the Property are unknown balance of the Purchase Price have not been received by Seller or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled lender by Seller and reestablished in Purchaser’s name 2:00 p.m. New York time on the Closing Date, if possible; otherwise utilities all prorations shall be prorated at Closing. Any amounts unpaid under recalculated as of the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closingnext business day.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for through the month in which the Closing occursoccurs (it being agreed that, subject to the payment below, Purchaser is entitled to all arrears in rent), the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of other income actually received by Seller, except that any calendar month, then Purchaser shall receive a credit rentals past due for rentals that have been paid from the date of Closing through the last day of up to two months prior to the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from (and after the sixteenth and including the final day month of any calendar month, then such rents actually received by Seller Closing) shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from apportioned and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent at Closing less 15% of any rental delinquencies owed by any such tenant to Seller for the period prior to Closingamount. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent Subsequent to the Closing, if any rents or such rents, other amounts and other income are actually received by Seller, Seller Purchaser from the tenants owing such amounts shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, belong to Purchaser. Seller agrees that, after the At Closing, it prepaid rents and refundable security deposits in the possession or control of Seller on Closing (together with any interest accrued thereon only if interest is specifically required to be paid thereon under applicable law or under the terms of a specific Lease) at Seller’s sole option shall either be (i) transferred to Purchaser at Closing and not file any eviction action subject to adjustment, or (ii) adjusted by way of a credit in an effort to collect any outstanding rents that remain owing to Seller after the Closingfavor of Purchaser.
(b1) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes and assessments shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation, with a further reconciliation to be made within thirty (30) days of when the final rate or valuation rate is received.
(2) If any certiorari or other proceedings for the reduction of real estate taxes are pending at the Closing Date with respect to the tax year in which the Closing occurs or any tax year prior thereto, Seller shall continue the prosecution of such action. The proration Any tax refund resulting from such proceeding for the tax year in which the Closing occurs net of Seller’s costs of prosecuting the same, and after deducting any refunds required to be made to tenants pursuant to Leases, shall allow be apportioned between Seller and Purchaser in the same proportion that real estate taxes for any available discountsuch tax year are apportioned and shall be paid to Purchaser within thirty (30) days of receipt thereof.
(c) If the Closing shall occur before the actual amount of utilities, water or sewer meter charges or other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the apportionment of such utilities, water or sewer meter charges or other operating expenses shall be upon the basis of an reasonable estimate by Seller of such utilities, water or sewer meter charges or other operating expenses for such month based upon a reasonable and fair estimate thereof. Subsequent to the Closing, when the tax rate and the assessed valuation actual amount of such utilities, water or sewer meter charges or other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities, water or sewer meter charges or other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. Notwithstanding the foregoing, which obligation expressly outstanding RUBS will be adjusted and paid by Purchaser to Seller at Closing based on the average of the charges for the two (2) months immediately preceding the Closing less 10% of such amount, and such payment shall survive not be subject to re-proration post- Closing.
(cd) The Escrow Agent shall prepare a Settlement Statement (as hereinafter defined) and deliver the same together with reasonable backup information from Seller shall pay all assessments, contributions, fees and related charges required no later than two (2) business days prior to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the PropertyClosing Date. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 5.3 shall expressly survive the Closing. Except as otherwise set forth herein, all pro-rations shall be completed and finalized no later than six (6) months following the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resource Real Estate Opportunity REIT II, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) to Purchaser shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, and indemnify Purchaser for, from and against all such obligations, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by income from the tenants under the Leases and the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing, which proration obligation expressly shall survive Closing, and shall occur within ten (10) business days following Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty forty five (3045) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty forty five (3045) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser more than forty five (45) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, occurs (excluding all upfront or bonus payments paid under any contracts relating to the extent collected by Seller on or before the Closing DateProperty), and non-delinquent real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, Date with Purchaser Buyer receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in PurchaserBuyer’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser Buyer elects to assume at Closing shall be prorated between Seller and Purchaser Buyer at Closing. To the extent there are any unpaid amounts due from Seller for utilities or under any Contracts, which are calculable at Closing, Seller shall provide evidence of the payment in full of the same to Buyer at Closing. The provisions of this Section 6.3 will survive the Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any such rents which are delinquent as of Closing and other income are actually received by Purchaser, in good fundsBuyer, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, Buyer and the balance shall be paid by Purchaser Buyer to Seller within thirty (30) days following PurchaserBuyer’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by PurchaserSeller. If, subsequent to the Closing, any such rents or and other income allocable to the period after the Closing Date are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, same to PurchaserBuyer. Seller agrees that, after the Closing, it shall will not be allowed to file any eviction action in an effort against any tenant to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur occurs before the tax rate or the assessed valuation of the Property is fixed for the then then-current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required All prorations are to be subject to post-Closing adjustments as necessary to reflect late relevant information not available at the Closing and to correct any errors made at the Closing with respect to such apportionments. Any such adjustments will be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closingwithin thirty (30) days after request for payment.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cottonwood Communities, Inc.)
Proration. All rentsNotwithstanding anything herein to the contrary, (a) Seller shall be responsible for and pay any and all Taxes imposed on or with respect to the Business Assets and other amounts payable by expense items such as rent, utilities and similar expenses with respect to the tenants under the Leases Business Assets, including, but not limited to, real property Taxes, personal property Taxes and the Additional Leasessimilar ad valorem obligations, if any, and all other income including special assessments with respect to such Taxes, levied or imposed upon, or in connection with, the Business Assets or the conduct or operation of the Business with respect to the Property for the month in which periods (or portions thereof) ending on or prior to the Closing occursDate and Seller shall be entitled to any refunds with respect to such Taxes, and (b) Buyer shall be responsible for and pay any and all Taxes imposed on or with respect to the extent collected by Seller on or before Business Assets and other expense items such as rent, utilities and similar expenses with respect to the Closing DateBusiness Assets, and including, but not limited to, real estate and property Taxes, personal property taxes Taxes and other similar ad valorem obligations, if any, including special assessments with respect to such Taxes, levied or imposed upon, or in connection with, the Property Business Assets or the conduct or the operation of the Business with respect to the periods (or portions thereof) beginning after the Closing Date and Buyer shall be entitled to any refunds with respect to such Taxes. For purposes of the preceding sentence, Seller and Buyer agree that the liabilities for all real property Taxes, personal property Taxes and other similar ad valorem taxes or special assessments that are levied with respect to the year in Business Assets for assessment periods within which the Closing occursDate occurs (collectively, the “Apportioned Obligations”), shall be prorated apportioned between Seller and Buyer as of the Closing Date based on the number of days in any such period falling on or prior to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Sellerone hand, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations the number of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished days in Purchaser’s name on such period falling after the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under on the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
other hand (a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid it being understood that Buyer is responsible for the month in which portion of each Apportioned Obligation attributable to the Closing occurs, the apportionment number of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and days after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, in the relevant assessment period and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by that Seller shall be prorated with Purchaser receiving is responsible for the portion of all each such rentals Apportioned Obligation attributable to the period from and after Closing. In the event the proration number of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, on or prior to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) Closing Date in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingrelevant assessment period).
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Proration. All rents, other amounts payable by (a) The following items will be prorated between the tenants under the Leases Buyer and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before as of the Closing Date:
(i) prepaid lease and service contracts, including amounts deposited as security in connection with any lease or other contract, and real estate and personal property taxes and other assessments with respect items assumed by the Buyer;
(ii) prepaid charges for licenses assigned by the Seller to the Property for Buyer; and
(iii) all other items customarily prorated and adjusted in connection with the year in which sale of property of the type contemplated by this Agreement. All prorations required under this Section 1.7 shall be allocated so that items relating to time periods prior to the Closing occursDate will be allocated to the Seller and items relating to time periods beginning on or after the Closing Date will be allocated to the Buyer.
(b) The Seller shall provide the Buyer in writing with its good faith estimate of the amount payable to the Buyer or the Seller, shall be prorated as the case may be, under Sections 1.7(a) not later than fifteen (15) days prior to the Closing Date, with Purchaser receiving . The Buyer and the benefits and burdens Seller shall agree upon an estimate of ownership the adjustments to be made to the Purchase Price for purposes of determining the amount payable on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of Within thirty (30) days following Closingafter the Closing Date, if any rents the Seller shall provide the Buyer a closing statement (the "Seller's Closing Statement") which are delinquent as of Closing are actually received by Purchasershall contain an explanatory letter with back-up information, in each case setting forth the Seller's good funds, all such amounts shall first be applied faith calculation of the adjustments to post-closing rents and the Purchase Price or other amounts due pursuant to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within Section 1.7 hereof. Within thirty (30) days following Purchaser’s after the Buyer's receipt thereofof the Seller's Closing Statement, the Buyer shall remit such amount to the extent, Seller or provide the Seller with written grounds for dispute thereof. The Buyer and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) thereafter negotiate in good faith to resolve any disagreements concerning the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingadjustments contemplated hereunder.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Proration. All rents, other amounts payable by the tenants under the Leases, including the Tower Leases and the Additional Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Closing, Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases, including the Tower Leases and Billboard Leases, if any, and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing, which proration obligation expressly shall survive Closing and shall occur within ten (10) business days following Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent extent, of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, date Seller receives the Purchase Price in immediately available funds with Purchaser Seller receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing and other income are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereofSeller. Purchaser shall make a good faith effort and attempt to collect any such rents and other amounts and other income not apportioned at the Closing for the benefit of Seller, however, Purchaser shall not be required to the extent, and only expend any funds or institute any litigation in its collection efforts. Nothing in this paragraph shall restrict Seller's right to the extent of any rental delinquencies owed collect delinquent rents directly from a tenant by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a)legal means provided, (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Sellerhowever, Seller shall immediately remit not have the same, or Purchaser’s prorata share thereof calculated as aforesaid, right to Purchaser. Seller agrees that, after pursue the Closing, it shall not file eviction of any eviction action in an effort to collect any outstanding rents that remain owing to Seller after tenant of the ClosingProperty.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. If the Property is not assessed as a separate parcel for tax or assessment purposes, which obligation expressly then such taxes and assessments attributable to the Property shall survive be determined by Purchaser and Seller. If, as of the Closing, the Property is not being treated as a separate tax parcel, then within thirty (30) days after the Closing, Purchaser shall, at its sole cost and expense, have the Property assessed separately for tax and assessment purposes.
(c) Seller If the Closing shall pay occur before the actual amount of utilities and all assessments, contributions, fees and related charges required other operating expenses with respect to be paid upon transfer of the Property pursuant for the month in which the Closing occurs are determined, the apportionment of such utilities and other operating expenses shall be upon the basis of an estimate by Seller of such utilities and other operating expenses for such month. Subsequent to any declaration the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the proration of such utilities and other operating expenses and, if necessary, to refund or restriction affecting the Propertyrepay such sums as shall be necessary to effect such adjustment. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Proration. All rentsincome, other amounts payable by the tenants under the Leases and the Additional Leases, if any, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, date Seller receives the Purchase Price in immediately available funds with Purchaser Seller receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by income from the tenants under the Leases and the Additional Leases have Property has actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from and after the first and through and including the fifteenth day basis of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are such income is actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts income due to Purchaser for the period from and after Closing, which is past due and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, Seller. Purchaser shall make a good faith effort and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort attempt to collect any outstanding rents that remain owing such income not apportioned at the Closing for the benefit of Seller, however, Purchaser shall not be required to Seller after the Closingexpend any funds or institute any litigation in its collection efforts.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. If the Property is not assessed as a separate parcel for tax or assessment purposes, which obligation expressly then such taxes and assessments attributable to the Property shall survive be determined by Purchaser and Seller. If, as of the Closing, the Property is not being treated as a separate tax parcel, then within thirty (30) days after the Closing, Purchaser shall, at its sole cost and expense, have the Property assessed separately for tax and assessment purposes.
(c) Seller If the Closing shall pay occur before the actual amount of utilities and all assessments, contributions, fees and related charges required other operating expenses with respect to be paid upon transfer of the Property pursuant for the month in which the Closing occurs are determined, the apportionment of such utilities and other operating expenses shall be upon the basis of an estimate by Seller of such utilities and other operating expenses for such month. Subsequent to any declaration the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the 8 9 proration of such utilities and other operating expenses and, if necessary, to refund or restriction affecting the Propertyrepay such sums as shall be necessary to effect such adjustment. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Continental Circuits Corp)
Proration. All rents, other amounts payable by the tenants under the Leases, including the Tower Leases and the Additional Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Closing, Purchaser’s and Seller’s obligation to pay Purchaser Seller’s their prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should To the extent any rollback real property taxes or similar assessments shall accrue before the Closing (including, without limitation, any real property taxes or assessments accruing with respect to any of the Work) and be due and payable on or after Closing with respect to the transaction contemplated herebyClosing, such taxes and assessments shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Purchaser shall be solely responsible for all real property taxes and assessments accruing and pertaining to the period on and after the Closing with respect to the Work or the sale of the Property contemplated hereby or otherwise accruing and pertaining to the period on and after the Closing, and Purchaser hereby agrees to indemnify and hold Seller harmless therefrom, which obligations of Purchaser expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases, including the Tower Leases and Billboard Leases, if any, and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing, which proration obligation expressly shall survive Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing post‑closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent extent, of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases, including the Tower Leases and the Additional Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Closing, Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefromfor, from and against any such taxes, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases, including the Tower Leases and Billboard Leases, if any, and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing, which proration obligation expressly shall survive Closing and shall occur within ten (10) business days following Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent extent, of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser Seller receiving the benefits and burdens of ownership on until the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any such rents which are delinquent as of Closing and other income are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, which are past due and the balance shall be immediately paid by Purchaser to Seller. Purchaser shall make a good faith effort and attempt to collect any such rents and other amounts and other income not apportioned at the Closing for the benefit of Seller; provided, however, that Purchaser shall not be required to expend any funds or institute any litigation in its collection efforts. Nothing in this paragraph shall restrict Seller's right to collect delinquent rents directly from a tenant by any legal means. The tenant security deposits held by Seller within thirty under the Leases as of the Closing Date shall be credited against the funds due from Purchaser at the Closing.
(30b) days following Purchaser’s receipt thereof, All real estate taxes and assessments with respect to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller Property for the period prior to tax year in which the Closing Date shall occur shall be prorated between Seller and Purchaser in the manner described above in this Section 6.3, based on the latest tax bill available as of the Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent Subsequent to the Closing, the parties hereto shall prorate as of the Closing (a) any rents taxes or other income are actually received assessments imposed by Seller, Seller shall immediately remit supplemental bill xxx available as of the same, or Purchaser’s prorata share thereof calculated as aforesaid, Closing and levied by reason of any event occurring prior to Purchaser. Seller agrees that, after the Closing, it shall not file and (b) any eviction action in an effort to collect any outstanding rents that remain owing to Seller refund of taxes or assessments granted after the Closing.
(bc) If the Closing shall occur before the tax rate or the assessed valuation actual amount of utilities and all other operating expenses with respect to the Property is fixed for the then current yearmonth in which the Closing occurs are determined, the apportionment of taxes such utilities and other operating expenses shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx an estimate by Seller of such utilities and other operating expenses for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discountmonth. Subsequent to the Closing, when the tax rate actual amount of such utilities and the assessed valuation of other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(cd) Additional rent for operating costs and taxes ("Escalations") owed by tenants shall be prorated as and when collected. If, after Closing, Purchaser shall receive any Escalations which are attributable in whole or in part to any period prior to Closing and which are due Seller under the Lease in question, Purchaser shall pay all assessmentswithin thirty (30) day after receipt remit such amount to Seller. All collections of such Escalations shall be apportioned between Purchaser and Seller based upon the allocation thereof equally over the period for which they are attributable. If, contributionsafter the Closing, fees and related charges required based upon its estimated payments on account of Escalations, any Tenant is or shall be entitled to be paid upon transfer reimbursed for the excess of such estimated payments over the Property pursuant Tenant's actual share of Escalations, Seller shall, within thirty (30) days after demand, remit such amount to Purchaser. Purchaser shall indemnify, protect, defend and hold Seller harmless from and against any and all claims by and liabilities to any declaration third persons for payment of any security deposits or restriction affecting the Propertyfees for which Purchaser obtains a credit or which Purchaser receives directly from Seller. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year period in which the Closing occurs, shall be prorated to the Closing Date, date Seller receives the Purchase Price in immediately available funds with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect (The Closing shall not be deemed to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled have occurred unless good funds have been received by Seller and reestablished in Purchaser’s name on the Closing DateSan Francisco, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at ClosingCalifornia by 3:00 p.m. San Francisco time.)
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing such rents, other amounts and other income are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, which are past due and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, Seller. Purchaser shall make a good faith effort and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort attempt to collect any outstanding such rents that remain owing and other amounts and other income not apportioned at the Closing for the benefit of Seller, however, Purchaser shall not be required to expend any funds or institute any litigation in its collection efforts. At Closing, prepaid rents and refundable security deposits in the possession or control of Seller after (together with any interest accrued thereon only if interest is specifically required to be paid thereon under applicable law or under the Closingterms of a specific Lease) at Seller's sole option shall either be (i) transferred to Purchaser at Closing and not subject to adjustment, or (ii) adjusted by way of a credit in favor of Purchaser.
(b) In the event the Property tax assessment increases as a result of the transfer and sale of the Property to the Purchaser, Purchaser and Seller agree to reprorate based upon the actual tax bills for any such tax increase during the tax year in which the Closing occurs.
(c) If the Closing shall occur before the tax rate or the assessed valuation actual amount of utilities and all other operating expenses with respect to the Property is fixed for the then current yearmonth in which the Closing occurs are determined, the apportionment of taxes such utilities and other operating expenses shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx a reasonable estimate by Seller of such utilities and other operating expenses for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discountmonth. Subsequent to the Closing, when the tax rate actual amount of such utilities and the assessed valuation of other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(cd) Any tenant-improvement and/or leasing-commission costs (including, without limitation, referral or locator fees) and all other out-of-pocket fees and costs (including, without limitation, legal fees and costs) (collectively, "New Tenant Costs") paid or incurred by Seller and approved by Purchaser after the Effective Date with respect to new Leases or modifications to existing Leases executed on or after the Effective Date in accordance with Section 9 below shall be credited in favor of Seller at Closing. Seller shall pay supply invoices and statements for all assessmentsNew Tenant Costs to Purchaser on or prior to the Closing Date. Purchaser shall be solely responsible for the payment of all New Tenant Costs in connection with any options, contributionsrenewals, or extensions exercisable under the Leases after the Closing Date and Purchaser shall indemnify, protect, defend, save and hold harmless seller from and against any and all debts, duties, obligations, liabilities, suits, claims, demands, causes of action, damages, losses, fees and related charges required to be paid upon transfer expenses (including, without limitation, attorneys' fees and expenses and court costs) in any way relating to, or in connection with or arising out of New Tenant Costs.
(e) If Leases contain obligations ("Lease Obligations") on the part of the Tenants for: (i) CPI or similar adjustments, (ii) percentage rents, (iii) escalation payments for taxes, labor or operations, or (iv) other expenses including, without limitation, common area maintenance or any other operating cost pass-throughs or retroactive charges payable by Tenants which have accrued as of the Closing Date but are not then due and payable, the amount of such Lease Obligations shall be prorated as of the Closing Date upon the basis of an estimate by Seller of such Lease Obligations through the Closing Date. Subsequent to the Closing, when the actual amount of such Lease Obligations with respect to the Property pursuant through the Closing Date is determined, the parties agree to any declaration adjust the proration of such Lease Obligations and, if necessary, to refund or restriction affecting the Propertyrepay such sums as shall be necessary to effect such adjustment. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, date Seller receives the Purchase Price in immediately available funds with Purchaser Seller receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any such rents which are delinquent as of Closing and other income are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-post closing rents and other amounts due to Purchaser for the period from and after Closing, which are past due and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, Seller. Purchaser shall make a good faith effort and attempt to the extent, and only to the extent of any rental delinquencies owed by collect any such tenant to Seller rents and other amounts and other income not apportioned at the Closing for the period prior benefit of Seller, however, Purchaser shall not be required to Closingexpend any funds or institute any litigation in its collection efforts. Notwithstanding the foregoing provisions of Nothing in this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by restrict Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort right to collect delinquent rents directly from a tenant by any outstanding rents that remain owing to Seller after the Closinglegal means.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. If the Property is not assessed as a separate parcel for tax or assessment purposes, which obligation expressly then such taxes and assessments attributable to the Property shall survive be determined by Purchaser and Seller. If, as of the Closing, the Property is not being treated as a separate tax parcel, then within thirty (30) days after the Closing, Purchaser shall, at its sole cost and expense, have the Property assessed separately for tax and assessment purposes.
(c) Seller If the Closing shall pay occur before the actual amount of utilities and all assessments, contributions, fees and related charges required other operating expenses with respect to be paid upon transfer of the Property pursuant for the month in which the Closing occurs are determined, the apportionment of such utilities and other operating expenses shall be upon the basis of an estimate by Seller of such utilities and other operating expenses for such month. Subsequent to any declaration the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the proration of such utilities and other operating expenses and, if necessary, to refund or restriction affecting the Propertyrepay such sums as shall be necessary to effect such adjustment. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resource Real Estate Investors 7, L.P.)
Proration. All rents(a) Sellers and Buyer shall estimate as of the Effective Time and prorate at the Closing (i) any amounts as of the Effective Time that were paid by Sellers prior to the Effective Time and that relate, other in whole or in part, to periods ending after the Effective Time, (ii) any amounts payable as of the Effective Time that are to be paid by Buyer after the tenants under Effective Time and that relate, in whole or in part, to periods prior to the Leases and the Additional Leases, if anyEffective Time, and all other income (iii) any amounts that will become due and payable after the Effective Time, in each case, with respect to (A) the Property for Assumed Contracts (including the month Tenant Leases) and (B) all utilities servicing any of the Purchased Assets, including water, sewer, telephone, electricity and gas service, in which the Closing occurs, each case to the extent collected by Seller on or before not reflected in the Closing Date, and real estate and personal property taxes and other assessments with respect Working Capital or otherwise covered by Section 2.8. Any such amounts that are not available to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes Date shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be similarly prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long Effective Time as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent soon as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingpracticable thereafter.
(b) If Notwithstanding anything herein to the contrary, and without duplication of any amounts included in the determination of Closing Working Capital, all Property Taxes, if any, on the Purchased Assets shall be prorated by Buyer and Sellers on the Closing shall occur before the tax rate or the assessed valuation Date as of the Effective Time. All such amounts to be prorated will be reflected on a Property is fixed Tax proration statement (the “Property Tax Statement”) to be agreed upon by the Parties prior to the Closing Date. If necessary for such proration, payments for Property Taxes shall initially be determined based on the previous calendar year’s Property Taxes and shall later be adjusted to reflect the current calendar year’s Property Taxes when the Property Tax bills are finally rendered. Sellers shall be liable for (and shall reimburse Buyer to the extent that Buyer shall have paid) that portion of Property Taxes relating to, or arising in respect of, periods ending prior to the Effective Time, and Buyer shall be liable for (and shall reimburse Sellers to the extent Sellers shall have paid) that portion of Property Taxes relating to, or arising in respect of, periods (or portions thereof) ending after the Effective Time, including, in each case, any adjustments made after the Closing Date to the amounts reflected on the Property Tax Statement for the then current yearactual amount of Property Taxes as finally determined for the applicable period (taking into account any related fees and costs incurred by Buyer in such determination). The Parties shall report any Tax deductions in respect of such Property Taxes only for the Property Taxes such Party is responsible for pursuant to this Section 2.9(b). The Parties shall cooperate to avoid, to the extent legally possible, the apportionment payment of taxes duplicate Property Taxes, and each Party shall be upon furnish, at the basis request of the tax rate for the preceding yearany other Party, including all matters appearing on the tax xxxx for such year, whether ad valorem proof of payment of any Property Taxes or non-ad valorem, applied other documentation that is a prerequisite to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation avoid payment of the a duplicate Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive ClosingTax.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) to Purchaser shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes related to the period the Property is owned by Seller shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefromfor, from and against any such taxes, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated as of Closing, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing. In , with the event parties agreeing to true-up such proration, to the extent necessary to cause an accurate proration of rentals is being made pursuant to Section 6.3(a)(iisuch income, within ten (10) above, then for business days following Closing. For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing post‑closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All The following items shall be prorated at Closing: (i) collected rents, other collected amounts payable by the tenants under the Leases and the Additional Space Leases, if any, and all other collected income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and (ii) real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated and (iii) all operating expenses relating to the Closing Dateoperation of the Property other than amounts under Rejected Contracts or under the property management agreement and other items not customarily prorated in similar transactions, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To If permitted by the extent any such real estateapplicable utility providers, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date; otherwise, if possible; otherwise utilities shall be prorated between Seller and Purchaser at Closing, with such proration to be readjusted at such time as final utility bills become available. Any amounts unpaid under the Contracts which Purchaser elects or is obligated to assume at Closing shall be prorated between Seller and Purchaser at Closing. If accurate allocations cannot be made at Closing because current bills are not obtainable, Seller and Purchaser shall allocate such income or expenses at Closing on the best available information, subject to adjustment upon receipt of the final xxxx or other evidence of the applicable income or expense. The obligations of the parties under this Section 6.3 with respect to operating expenses relating to the ownership and operation of the Property shall survive for a period of ninety (90) days after the Closing Date.
(a) If Subsequent to the Closing shall occur before Closing, if any previously delinquent rents and other income are received by Purchaser, all other such amounts payable by shall be applied in the tenants under following order: (i) first to rent due for the Leases and the Additional Leases have actually been paid for month or months following the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar monthto keep rent current, then Purchaser shall receive a credit (ii) next, to delinquent rent due for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid (iii) third, to delinquent rent due for the period between the first of prior to the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquenciesoccurs, and (ii) if the Closing occurs from and after the sixteenth and including the final day of with any calendar month, then such rents actually received excess retained by Seller shall be prorated with Purchaser receiving the portion of all to apply to future payments. Any such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance Seller shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any such rents or and other income payable to Purchaser, as provided above, are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof thereof, calculated as aforesaid, to PurchaserPurchaser no later than thirty (30) days after Seller’s receipt. Seller agrees that, The obligations of the parties under this Section 6.3(a) shall survive for a period of ninety (90) days after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the ClosingClosing Date.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon based on the basis most current and accurate billing information available. Should such proration not be based on the actual amount of the tax rate taxes for the preceding yearperiod in question and should such proration prove to be inaccurate upon receipt of the actual bills for the Property, including all matters appearing on the tax xxxx for such yearthen, whether ad valorem or non-ad valorem, applied to the latest assessed valuationextent such amount exceeds One Thousand and No/100 Dollars ($1,000.00), either Seller or Purchaser may demand on or before December 31, 2017 a payment from the other party correcting such malapportionment, except in the case of real estate taxes which at the expiration of such period are subject to appeal. Claims with respect to the adjustment which are subject to the appeal of real estate taxes will be valid if made on or before the date that is sixty (60) days after a final order or resolution shall have been issued in such appeal. Both parties shall use good faith efforts to resolve any disputed claims promptly. Seller hereby covenants and agrees that Seller will institute an appeal of the 2017 tax assessment, with any refund to be prorated as provided herein after deduction of the costs thereof. The proration shall allow for any available discount. Subsequent to obligations under the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly immediately preceding sentence shall survive Closingfor a period of one year.
(c) Seller shall pay be entitled to receive refunds for any and all assessmentsdeposits which Seller has made with utility companies, contributionsand Purchaser shall replace such deposits at Closing. {10610630;2} 16
(d) Notwithstanding the terms of subsection (a) above, fees RUBS (as hereinafter defined), shall not be treated as rents. Rather, within ninety (90) days after the Closing Date, all reimbursable utility bills for utility charges incurred by Seller and related charges required reimbursable to Seller from the tenants under the Space Leases for periods prior to Closing (“RUBS”), if received by Purchaser, shall be paid upon transfer remitted to Seller. Thereafter, Purchaser shall have no obligation to remit RUBS income to Seller. The obligations of the Property pursuant to any declaration or restriction affecting parties under this Section 6.3(d) shall survive for a period of ninety (90) days after the PropertyClosing Date. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive Closingthe Closing as specified in this Section 6.3.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Apartment REIT III, Inc.)
Proration. All rentsFor purposes of calculating prorations, other amounts payable by Purchaser shall be deemed to be in title to the tenants under the Leases and the Additional Leases, if anyProperty, and all other income with respect therefore entitled to the Property income therefrom and responsible for the month in expenses thereof, for the entire day upon which the Closing occurs, to . All such prorations shall be made on the extent collected by Seller on or before basis of the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for actual number of days of the year in which the Closing occurs, and month that shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens have elapsed as of ownership on the Closing Date. To The amount of such prorations shall be adjusted in cash after Closing, as and when complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use their commercially reasonable efforts to make such adjustments no later than thirty (30) days after the Closing, or as soon as is reasonably practicable if and to the extent any that the required final proration information is not available within such real estate, personal property taxes thirty (30) day period. Items of income and other assessments with respect expense for the period prior to the Property are unknown Closing Date will be for the account of Seller and items of income and expense for the period on and after the Closing Date will be for the account of Purchaser. Bills received after Closing that relate to expenses incurred, services performed or otherwise not accounted for at other amounts allocable to the period prior to the Closing Seller’s obligation Date shall be paid by Seller and bills received after Closing that relate to pay Purchaser Seller’s prorata share of said expenses incurred, services performed or other amounts (as calculated in accordance with allocable to the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable period on or after the Closing Date shall be paid by Purchaser. The obligations of the parties pursuant to this Section 6.3 shall survive the Closing. Purchaser acknowledges that as of the date hereof Seller has deposited the sum of Fifty Thousand and No/100 Dollars ($50,000.00) (the “Development Deposit”) as a required construction deposit with respect to the transaction contemplated hereby, Xxxxxxx Ranch Architectural Review Committee in connection with Seller’s development of the Property. Purchaser hereby agrees that such taxes deposit shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations property of Seller expressly and shall survive Closing. Utilities shall not be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated subject to proration at Closing. Any amounts unpaid under the Contracts which Purchaser elects If such deposit is not reimbursed to assume at Closing Seller prior to Closing, then Seller shall be prorated between remain entitled to receive such deposit reimbursement, and if such deposit reimbursement is delivered to Purchaser following Closing, then Purchaser shall promptly return the same to Seller. Seller represents and warrants to Purchaser at Closingthat Purchaser is not obligated to replace the Deposit if refunded to Seller. This provision shall survive the Closing of this transaction.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually other income received by Seller shall be prorated with Purchaser receiving as of the portion of all such rentals attributable Closing Date. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any such rents which and other income are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied on a prorated basis between Seller and Purchaser to post-closing current rents and other amounts sums due for the month of Closing, next to rents and other sums due to Purchaser for the period from and after month following Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies rent or other sums owed by any such tenant to Seller for the period periods prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income relating to the Property are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) Real estate taxes and assessments imposed by governmental authority (and any assessments imposed by private covenant) shall be prorated as of the Closing based upon the most recent tax bills. If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller All security, pet, cleaning, and other deposits deposited by Tenants and not theretofore applied to obligations of such Tenants under the Leases shall pay all assessments, contributions, fees and related charges required be transferred or credited to be paid upon transfer Purchaser at Closing. As of the Property pursuant Closing, Purchaser shall assume Seller’s obligations related to any declaration Tenant security deposits transferred or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive credited to Purchaser at Closing.
(d) Purchaser shall receive a credit against the Purchase Price at Closing for any outstanding and unpaid leasing commissions or locater’s fees, tenant improvement costs, tenant allowances, free rent and other leasing costs with respect to Leases under which tenants take occupancy prior to the Closing Date, and Purchaser shall be responsible for such costs with respect to Leases under which tenants take occupancy on and after the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Nuveen Global Cities REIT, Inc.)
Proration. All rents(a) Purchaser and Seller agree that, other amounts payable by except as otherwise set forth in this Agreement, all of the tenants under items normally prorated, including those listed below, relating to the Leases Business and the Additional Leases, if any, and all other income with respect to Purchased Assets shall be prorated as of the Property for the month in which effective time of the Closing occurson the Closing Date, with Seller liable to the extent collected by Seller such items relate to any time period through the effective time of the Closing on or before the Closing Date, and real estate and personal property taxes Purchaser liable to the extent such items relate to any time period subsequent to the effective time of the Closing on the Closing Date:
(i) any rent, Taxes and other assessments items payable by or to Seller under any of the Transferred Contracts to be assigned to and assumed by Purchaser hereunder;
(ii) any permit, license or registration fees with respect to any Transferred Permit; and
(iii) charges for water, telephone, electricity and other utilities.
(b) Purchaser and Seller agree that Property Taxes with respect to the Property for Business or the year in which ownership and the Closing occurs, operations of the Purchased Assets or the Project shall be prorated as follows:
(i) Seller shall be liable for and shall pay when due all Property Taxes having a lien date in the year before the calendar year of the Closing Date.
(ii) Seller shall be liable for and shall pay when due all Property Taxes having a lien date in the same calendar year as the Closing Date; and
(iii) Property Taxes having a lien date in the calendar year following the year of the Closing Date shall be paid by Purchaser; however, such Property Taxes shall be prorated with (A) Seller being liable for that portion of the Property Taxes calculated by multiplying (1) the final determined Property Tax liability by (2) the number of days beginning with January 1 in the year of Closing up to and including the Closing Date divided by three hundred sixty-five (365) days, and (B) Purchaser being liable for that portion of the Property Taxes calculated by multiplying (1) the final determined Property Tax liability by (2) the number of days after the Closing Date up to and including December 31 in the year of Closing divided by three hundred sixty-five (365) days. Schedule 3.2(b) illustrates the operation of this SECTION 3.2(b). After each payment of Property Taxes referred to in this SECTION 3.2(b)(iii) by Purchaser, Purchaser shall notify Seller in writing of the total amount of Property Taxes paid and, as to that payment, the prorated amount for which Seller is liable. Seller shall reimburse Purchaser such prorated amount within fifteen (15) days after receipt of the notice from Purchaser.
(c) In the event that actual figures are not available at the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentenceprorations required by SECTION 3.2(a) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: :
(i) if Such proration shall be based upon the Closing occurs from and after actual fee, cost or amount of the first and through and including specific item for the fifteenth day most recent preceding year (or appropriate period) for which an actual fee, cost or amount paid is available.
(ii) Upon the request of any calendar montheither Seller or Purchaser, then Purchaser shall receive a credit for rentals that have been paid from made within sixty (60) days of the date of Closing through that any actual amount previously estimated in accordance with SECTION 3.2(c)(i) becomes available (the last day of "REQUEST DATE"), the month in which Closing occursParties shall (A) calculate the prorated amounts using the actual available amounts (the "ACTUAL PRORATED AMOUNTS"), and Seller shall receive a credit for all rentals payable but not yet paid for (B) calculate the period difference between the first of originally estimated prorations (the month in which Closing occurs "ESTIMATED PRORATED AMOUNTS") and the day preceding Actual Prorated Amounts (the Closing Date so long as each such tenant has no rental delinquencies"PRORATED DIFFERENCE"), and (iiC) if the Party that at Closing occurs paid less than the Actual Prorated Amount due from and after such Party based upon the sixteenth and including Estimated Prorated Amounts shall pay the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Prorated Difference to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty other Party within sixty (3060) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive ClosingRequest Date.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pinnacle West Capital Corp)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership as of the close of business on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) to Purchaser shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated as of Closing, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing. In , with the event parties agreeing to true-up such proration, to the extent necessary to cause an accurate proration of rentals is being made pursuant to Section 6.3(a)(iisuch income, within ten (10) above, then for business days following Closing. For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. Seller shall remain liable for all taxes on rent payable by the tenants under the Leases that accrues prior to the date of Closing.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing DateDate (with real estate taxes being prorated based upon the fiscal year of the applicable governmental authority), with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s Closing, each party's obligation to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s 's name on the Closing Date, if possiblereasonably practicable; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated as of Closing, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing. In , and with the event parties agreeing to true-up such proration, to the extent necessary to cause an accurate proration of rentals is being made pursuant to Section 6.3(a)(iisuch income, within fifteen (15) above, then for business days following Closing. For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-post closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s 's receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately promptly remit the same, or Purchaser’s 's prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive for a period of one year after Closing.. DOCVARIABLE BABC_DocID
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined within one hundred eighty (180) days (as evidenced by a written notice from either party to the other during such period) after Closing to be incorrect in any material respect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases (a) The Buyer and the Additional Leases, if any, and all other income with respect Seller agree that the items listed on Schedule 3.4 relating to the Property for the month in which Purchased Assets will be prorated as of the Closing occursDate, with the Seller liable to the extent collected by Seller on or before such items relate to any time period through the Closing Date, and the Buyer liable to the extent such items relate to periods subsequent to the Closing Date.
(b) Notwithstanding the preceding Section 3.4(a), if Buyer seeks, after the Closing Date, an abatement of real estate and personal property taxes and other assessments with respect to the Property Purchased Assets, for any period prior to and through the year Closing Date, it will offer to the Seller the opportunity to participate in the abatement proceeding, by written notice to the Seller, to which the Seller must respond by written notice delivered to Buyer within ten (10) days of the date of the Seller's notice, indicating whether the Seller wishes to participate in and pay its proportionate share of such abatement proceeding. The Seller will be entitled to a proration of abated taxes, if any, only if it has elected in such written response to participate in and fund such abatement proceeding and subject to the continuing requirement that the Seller promptly fund all expenses of such abatement proceeding as they are incurred, in proportion to the proration between the parties. Real estate tax abatement proceedings with respect to the Purchased Assets that are not subject to proration and that are pending at the Closing occursDate will be assigned by the Seller to the Buyer, shall be prorated unless the Seller elects, by written notice to the Buyer at or prior to the Closing Date, to retain all of the Seller's rights to such abatements, in which event all costs and responsibilities associated with Purchaser receiving such abatement proceedings will be borne exclusively by the benefits and burdens of ownership on Seller. In connection with any proration under this Section 3.4, in the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property event that actual figures are unknown or otherwise not accounted for available at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities the proration shall be prorated at Closing. Any based upon the actual figures for the preceding year (or appropriate period) for which such figures are available and such amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between reprorated upon request of either the Seller, on the one hand, or the Buyer, on the other hand, made within sixty (60) days of the date that the actual amounts become available. The Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all Buyer agree to furnish each other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of with such rents documents and other amounts records as may be reasonably requested in order to confirm all adjustment and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being calculations made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing3.4.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Proration. (a) All rents, collected rents and other amounts payable by received from the tenants under the Leases and the Additional Leases, if anyincome, fees and other charges under the Contracts to be assumed by Purchaser at the Closing, all amounts prepaid under Contracts assumed by Purchaser at the Closing, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, occurs and real estate and personal property taxes and other assessments with respect to the Property Property, including condominium assessments and amounts paid under covenant agreements for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date and thereafter, and Seller retaining the benefits and burdens of ownership for the period of time prior to the Closing Date. To At the extent Closing, Purchaser shall be credited with all amounts due and unpaid with respect to rent concessions under any such of the Leases, tenant improvement costs and leasing commissions.
(b) At the Closing, collected rents, prepaid rents and refundable security deposits in the possession or control of Seller (together with any interest accrued thereon only if interest is specifically required to be paid thereon under applicable law or under the terms of a specific Lease) shall be adjusted by way of a credit in favor of Purchaser or Seller. For a period of ninety (90) days after the Closing, Purchaser will attempt to collect any rent arrearages owed by tenants to Seller. Seller covenants and agrees, which covenant and agreement shall survive the Closing, not to xxx or otherwise assert a claim under any Lease against any tenant of the Property that, at the time of assertion of the claim, is a tenant at the Property or is otherwise obligated to Purchaser under a lease for any portion of the Property.
(c) All real estateestate taxes, rollback taxes, personal property taxes, water and sewer use charges, and any other charges and assessments constituting a lien on the Property (collectively “Taxes and Assessments”) shall be prorated as of the Closing Date for the fiscal year in which the same are levied. Prior to the Closing, Seller may pay any real estate tax bills that are current and unpaid regardless of whether such xxxx includes taxes levied for the time period after the Closing Date and Seller shall receive a credit of the Closing for the portion of any such payment that is attributable to taxes for a period on and after the Closing Date. There shall be no closing adjustments between the parties for Taxes and Assessments with respect to (i) those tenants that are responsible for the direct payment to the taxing authority for all such Taxes and Assessments due in accordance with the provisions of their lease and (ii) those tenants that make annual direct payments to the taxing authority of a portion of the Taxes and Assessments in accordance with the provisions of their lease.
(d) Subject to Section 6.3(e) below, if the Closing shall occur before the actual amount of utilities and all other assessments operating expenses with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occursoccurs are determined, the apportionment of such rents utilities and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes operating expenses shall be upon the basis of an estimate agreed to at the tax rate for the preceding year, including all matters appearing on the tax xxxx Closing by Seller and Purchaser of such utilities and other operating expenses for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discountmonth. Subsequent to the Closing, when the tax rate actual amount of such utilities and the assessed valuation of other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustmentadjustment within forty-five (45) days after the Closing. Seller and Purchaser shall cooperate to cause all utility suppliers furnishing electrical, which obligation expressly gas, water or other utility services to the Property to read all utility meters on the date of the Closing and to xxxx Seller separately for all such charges. Purchaser shall survive Closingbe responsible for making its own arrangements with respect to future utility xxxxxxxx and deposits. In the event any such utility supplier refuses to read and xxxx any such utilities, then such utility charges shall be prorated at the Closing upon the basis of the most recently issued bills therefor.
(ce) If Leases contain obligations (“Lease Obligations”) on the part of tenants for: (i) CPI or similar adjustments, (ii) percentage rents, (iii) escalation payments for taxes, labor or operations, or (iv) other expenses including, without limitation, common area maintenance or any other operating cost pass-throughs or retroactive charges payable by tenants which have accrued as of the Closing Date, but are not then due and payable, the amount of such Lease Obligations shall be prorated as of the Closing Date. For the avoidance of doubt, percentage rents shall be prorated based upon the most recent available sales month. Within one hundred twenty (120) days after the end of the calendar year in which the Closing occurs, Purchaser shall calculate (with Seller’s cooperation but Seller shall pay all assessments, contributions, fees and related charges not be required to be paid upon transfer incur any third party costs) the expenses incurred and collections received for the calendar year of the Property pursuant Closing by Seller and Purchaser and shall prepare and present to Seller for Seller’s review and approval, which approval shall not be unreasonably withheld or delayed, a calculation of the collections received and expenses incurred by each of Seller and Purchaser. Seller shall make any necessary adjusting payment to Purchaser, due to any declaration or restriction affecting over-collection by Seller, within thirty (30) days after presentment to, and approval by Seller of Purchaser’s calculation and Purchaser shall make any necessary adjusting payment to Seller, due to any under-collection by Seller, within thirty (30) days after presentment to, and approval by Seller of Purchaser’s calculation. Either party may inspect the Property. other’s books and records related to the Property to confirm the calculation.
(f) The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive Closingthe Closing for a period of two (2) years.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Proration. All rents, other amounts payable by the tenants expenses and income arising under the Leases Assigned Contracts shall be prorated between Licensee and Time Broker as of the Additional LeasesCommencement Date in a manner such that the costs and benefits thereunder through and including the Commencement Date shall be for the account of Licensee and, thereafter, during the term of this Agreement, for the account of Time Broker. It is agreed and understood that such proration shall not include an adjustment for any termination or severance payments or benefits obligations that Licensee is required to pay as a result of the termination of its employees pursuant to Section 3.1(b) or any accrued but unpaid vacation, sick leave or other similar benefit, and that Time Broker shall not be responsible for any such termination or severance payments or benefits obligations except for those incurred on account of employees hired by Time Broker on or after the Commencement Date pursuant to Time Broker's severance policy, if any, and all other income with respect to after the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Commencement Date. To the extent Licensee shall pay any such real estate, personal property taxes and other assessments with respect amount due to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made its employees terminated pursuant to Section 6.3(a)(ii3.1(b) abovefor any termination or severance payments or benefits obligations or any accrued but unpaid vacation, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts sick leave or other similar benefits on the Commencement Date. Such prorations shall first be applied to post-closing rents and other amounts due to Purchaser include an adjustment for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty Time Sales Agreements for consideration other than cash (30"Trade Agreements") days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed Net Negative Trade Balance (as defined below) and only to the extent that the Net Negative Trade Balance exceeds $50,000. "Net Negative Trade Balance" means the extent, if any, to which the value (at current rates for time on the Station as of the Commencement Date) of unfulfilled obligations of the Station under Trade Agreements exceed the stated value of any consideration yet to be received by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated Station pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing such Trade Agreements. Such prorations shall be retained by Purchaser, completed and Seller shall have no rights any necessary payments on account of such prorations paid within sixty (60) days of the Commencement Date. If any disagreement with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes andsuch income and expenses cannot be resolved by the parties, if necessaryLicensee and Time Broker will select a certified public accountant knowledgeable in the broadcast industry to resolve the dispute. The parties will use their best efforts in good faith to cause to occur as expeditiously as possible the appointment of the certified public accountant, to refund or repay and once appointed, the resolution of the dispute. The resolution of such sums as accountant shall be necessary binding on the parties and subject to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer judicial enforcement. Payment of the Property pursuant to any declaration or restriction affecting cost of the Property. The terms accountant shall be shared equally between Time Broker and provisions of this Section 6.3 shall expressly survive ClosingLicensee.
Appears in 1 contract
Samples: Time Brokerage Agreement (Capstar Broadcasting Corp)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate taxes and personal property taxes taxes, if any, and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens Date of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid Charges for the month in which the Closing occurselectricity, the apportionment of such rents natural gas, water, sewer and other amounts and other income utilities shall not be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and adjusted. Seller shall receive a credit cause the meters for all rentals payable but not yet paid such utilities to be read and shall pay for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable utilities up to the period from and after Closing. In the event the proration Date of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes for the year in which the Closing occurs shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. If the Property consists of a portion of any tax lot parcel, a fair and equitable division of the tax payment attributable to such tax lot and its buildings and improvements shall be determined by Seller and Purchaser. The proration shall allow for any available discount. Subsequent portion of such tax determined to be attributable to the Property shall be prorated to the Closing Date and paid proportionately at Closing by both Seller and Purchaser. The portion of such tax determined to be attributable to any land, buildings and improvements retained by Seller shall be paid at closing by Seller. If there are any assessments against the Property on Date of Closing, when Seller shall pay same if the tax rate and work giving rise to the assessed valuation assessment was completed prior to the effective date of this Agreement; provided, however, if the work giving rise to the assessment was or is to be completed on or after the effective date of this Agreement, then such assessment shall be paid by Purchaser. In the event the Property are fixed for has been assessed at rates that would result in “roll back” taxes upon the year in which the Closing occurstransfer of ownership or use, the parties agree Seller agrees to adjust the proration pay all such taxes and to indemnify and save Purchaser harmless from and against any claims and liabilities arising out of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closingattributable thereto.
(c) Seller Purchaser shall pay Seller at Closing for all assessmentsfuels located in tanks on the Property as of the Date of Closing at the market price per gallon paid by Seller to the company that delivered such fuel, contributionsas evidenced by a statement or receipt from such company relating to its most recent delivery.
(d) Rents, fees if any, collected by Seller prior to Closing covering a rental period that extends beyond the Date of Closing shall be prorated to the Date of Closing and related charges required the portion attributable to any days subsequent to the Date of Closing shall be paid upon transfer by Seller to Purchaser at Closing, together with any unapplied security deposits paid to and held by Seller from such tenants. If any rents, other amounts or other income to which Seller is entitled are collected by Purchaser subsequent to Closing, such amounts shall immediately be paid by Purchaser to Seller. Purchaser shall make a good faith effort and attempt to collect any such rents, other amounts and other income not apportioned at the Closing for the benefit of the Property pursuant to any declaration or restriction affecting the PropertySeller. The terms This agreement of Seller and provisions of Purchaser set forth in this Section 6.3 6.5 shall expressly survive the Closing.
Appears in 1 contract
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leasesthe, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) to Purchaser shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases Leases, if any, and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing, which proration obligation expressly shall survive Closing, and shall occur within ten (10) business days following Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing post‑closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx bxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyutilities, water and sewer meter charges and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the tax year in which the Closing occurs, shall be prorated to as of 11:59 p.m. New York time on the day before the Closing Date, Date with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To , provided however, if the extent any such real estate, personal property taxes and other assessments with respect to funds representing the Property are unknown balance of the Purchase Price have not been received by Seller or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled lender by Seller and reestablished in Purchaser’s name 2:00 p.m. New York time on the Closing Date, if possible; otherwise utilities all prorations shall be prorated at Closing. Any amounts unpaid under recalculated as of the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closingnext business day.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for through the month in which the Closing occursoccurs (it being agreed that Seller is entitled to all arrears in rent), the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing such rents, other amounts and other income are actually received by Purchaser, in good fundsPurchaser from the tenants owing such amounts, all such amounts shall first be applied first to post-closing the month in which the Closing occurs, then to rents and other amounts due to Purchaser for the period from and after ClosingPurchaser, and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following PurchaserSeller. Purchaser shall make a good faith effort and attempt to collect any such rents and other amounts and other income not apportioned at the Closing for the benefit of Seller; however, Purchaser shall not be required to expend any substantial funds or institute any litigation in its collection efforts. Nothing in this Agreement shall restrict Seller’s receipt thereof, right to the extent, and only to the extent of any rental delinquencies owed collect delinquent rents directly from a tenant by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaserlegal means, and Seller shall have be entitled to keep any such rents or other damages so collected, provided however, in no rights with respect theretoevent shall Seller be entitled after the Closing to institute any litigation in its collection efforts. At Closing, prepaid rents and (z) refundable security deposits in the event that rentals are prorated pursuant possession or control of Seller on Closing (together with any interest accrued thereon only if interest is specifically required to Section 6.3(a)(iibe paid thereon under applicable law or under the terms of a specific Lease) aboveat Seller’s sole option shall either be (i) transferred to Purchaser at Closing and not subject to adjustment, then all rentals or (ii) adjusted by way of a credit in favor of Purchaser. With respect to any security deposits held by Seller at Closing in the form of letters of credit that are received not transferable by Seller as landlord, Seller shall request that the applicable Tenants deliver new letters of credit (“New Letters of Credit”), issued in favor of Purchaser more by a date not later than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, but Seller shall not have any rents or other income liability for the failure of such Tenants to so furnish New Letters of Credit and the failure of such Tenants to furnish New Letters of Credit shall not affect the obligations of Purchaser to proceed with the Closing. With respect to any letters of credit not transferable by Seller as landlord and for which New Letters of Credit are actually received by Sellernot issued as of Closing, Seller shall immediately remit shall, until a New Letter of Credit is issued in favor of Purchaser, take all reasonable action, as directed by Purchaser and without obligation to incur any expenses which is not advanced by Purchaser, in connection with the same, or Purchaserpresentment of such letters of credit for payment as permitted under the terms of the applicable Lease and in consideration of Seller’s prorata share thereof calculated agreement as aforesaid, Purchaser shall indemnify and hold harmless Seller for liability arising out of or resulting from Seller’s actions relating to Purchaser. Seller agrees that, such letters of credit after the Closing, it which obligation shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after survive the Closing.
(b1) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes and assessments shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation, with a further reconciliation to be made when the final rate or valuation rate is received.
(2) If any certiorari or other proceedings for the reduction of real estate taxes are pending at the Closing Date with respect to the tax year in which the Closing occurs or any tax year prior thereto, Seller shall continue the prosecution of such action. The proration Any tax refund resulting from such proceeding, net of Seller’s costs of prosecuting the same, and after deducting any refunds required to be made to tenants pursuant to Leases, shall allow be apportioned between Seller and Purchaser in the same proportion that real estate taxes for any available discountsuch tax year are apportioned.
(c) If the Closing shall occur before the actual amount of utilities, water or sewer meter charges or other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the apportionment of such utilities, water or sewer meter charges or other operating expenses shall be upon the basis of an estimate by Seller of such utilities, water or sewer meter charges or other operating expenses for such month. Subsequent to the Closing, when the tax rate and the assessed valuation actual amount of such utilities, water or sewer meter charges or other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities, water or sewer meter charges or other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(cd) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer If Leases contain obligations (“ Lease Obligations”) on the part of the tenants for: (i) CPI or similar adjustments, (ii) percentage rents, (iii) escalation payments for taxes, labor or operations, and/or (iv) other expenses including, without limitation, common area maintenance or any other operating cost pass-throughs or retroactive charges payable by tenants which have accrued as of the Closing Date but are not then due and payable, the amount of such Lease Obligations shall be prorated as of the Closing Date and paid and adjusted between Seller and Purchaser when the actual amount of such Lease Obligations with respect to the Property pursuant to any declaration is determined and such Lease Obligations have been received by Purchaser from such tenant or restriction affecting the Propertytenants.
(e) Reletting Expenses in accordance with Section 8.2 hereof and Existing Mortgage escrows. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 5.3 shall expressly survive the Closing. All prorations shall be completed and finalized no later than March 31, 2006.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Columbia Equity Trust, Inc.)
Proration. All rents(a) Seller and Purchaser agree to adjust, other amounts payable by as of 11:59 p.m. on the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before day immediately preceding the Closing Date, and the following (collectively, the "Proration Items"): real estate and personal property taxes and other assessments with respect (subject to the Property terms of Section 7.3(d) below), utility bills (except as hereinafter provided), collected Rents (subject to the terms of Section 7.3(b) below) and Operating Expenses (subject to the terms of Section 7.3(c) below) payable by the owner of the Property. Seller will be charged and credited for the year in which amount of all of the Closing occurs, shall be prorated Proration Items relating to the period up to and including the Closing Date, with and Purchaser receiving will be charged and credited for all of the benefits and burdens of ownership on Proration Items relating to the period after the Closing Date. To the extent any such real estate, personal property taxes Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and other assessments with respect submitted to Purchaser for Purchaser's written approval prior to the Property are unknown or otherwise not accounted Closing Date (the "Closing Statement"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to Title Company for purposes of making the proration adjustment at Closing. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller’s obligation ) or by Seller to pay Purchaser Seller’s prorata share (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of said amounts (as calculated in accordance with the previous sentence) shall survive Purchase Price at the Closing. Should any rollback or similar taxes If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be due made at Closing on the basis of the best evidence then available; such prorations shall be conclusive and payable binding on or after the parties without further adjustment. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final billxxxx xxx utilities will be made if possible as of the Closing Date, in which event no proration will be made at Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the transaction contemplated hereby, such taxes shall be the sole responsibility of Sellerutility providers, and Seller hereby agrees Purchaser will be obligated to indemnifymake its own arrangements for deposits with the utility providers. "Rents" shall mean and include fixed monthly rentals, defend additional rentals, percentage rentals, escalation rentals (which include each Tenant's proportionate share of building operation and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller maintenance costs and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid expenses as provided for under the Contracts which Purchaser elects applicable Lease, to assume at Closing shall be prorated between Seller the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and Purchaser at Closing.
(a) If the Closing shall occur before rents other sums and all other amounts charges payable by the tenants Tenants under the Leases or from other occupants or users of the Property, but excluding amounts received for Operating Expenses. "Operating Expenses" shall mean operating expenses and the Additional Leases have actually been paid for the month in which the Closing occurscommon area maintenance charges, the apportionment of such rents including utilities, insurance and other amounts and other income shall be calculated as follows: (i) if charges, under the Closing occurs from and after the first and through and including the fifteenth day of any calendar monthLeases whether deemed additional rent or otherwise, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingexcluding Rents.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Murray Income Properties Ii LTD)
Proration. All rentsExcept as otherwise specifically provided in this Agreement, it is the intention of the parties hereto that the Company shall operate for its own account the business being transferred pursuant to this Agreement until the Pre-closing Close of Business, and that ALBANK shall operate for its own account the business being transferred pursuant to this Agreement effective on and after the Closing Date. Thus, except as otherwise specifically provided in this Agreement or the Servicing Purchase Agreement, items of income and expense, including, but not limited to, payments of rent, taxes, utilities and other amounts payable required to be paid by the tenants tenant under the Leases Leases, all personal property taxes applicable to the Personal Property to be transferred hereunder, employee compensation, insurance premiums related to the Branches or the Assets (provided, however, that such insurance is to continue in effect for the benefit of ALBANK on and after the Closing Date), FDIC insurance premiums related to the Deposit Liabilities, and fee income, shall be prorated as of the Pre-closing Close of Business on the basis of 30-day months and a 360-day year (or with respect to FDIC insurance premiums, real estate taxes and water and sewer rents and charges as hereinafter provided) ("Proration Charges"). To the extent that the Company may have prepaid any of the Proration Charges as of the Pre-closing Close of Business or if the amount thereof is then a known sum certain, such as security deposits made by the Company with respect to any Lease or other transferred assets or assumed liabilities, all of which shall be held on and after the Closing Date for the benefit of ALBANK, then the amount of such Prepaid Expenses shall be used in calculating the payments pursuant to Section 5. To the extent that the amount of any of the Proration Charges is not known as of the Pre-closing Close of Business, then the parties shall pay to the appropriate payee (including, if applicable, the other party) their respective pro rata share of the same after the Closing Date within ten (10) days after written demand therefor. Prorations of FDIC premiums for periods subsequent to the Closing Date shall be determined on the basis of a fraction, the numerator of which is the amount of the Deposit Liabilities assumed by ALBANK hereunder and the Additional Leasesdenominator of which is the amount of Deposits at the Branches used in calculating FDIC insurance premiums; provided, however, that such fraction shall not be greater than one (1.0). Real estate taxes, water and sewer charges, and fuel charges shall be appropriately apportioned as follows:
(i) current real estate taxes and water and sewer rents and charges, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day basis of the month in fiscal year for which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquenciesassessed, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closingwater meter charges, if any rents which are delinquent applicable, as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaserhereinafter provided. If, subsequent with respect to one or more of the ClosingBranches, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(bx) If the Closing shall occur before the tax rate or for the assessed valuation of the Real Property is fixed for the then current yearfixed, the apportionment of real estate taxes for said Branch(es) shall be upon the basis of the tax rate for the next preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuationvaluation and (y) there is a water meter on the Real Property, the Company shall furnish a reading to a date not more than thirty (30) days prior to the Closing Date, and the unfixed meter charge based thereon for the intervening time shall be apportioned on the basis of such last reading. The proration Company will use its best efforts to obtain final bills as of the Pre-closing Close of Business for all Proration Charges. The Company shall allow be entitled to any Tax refund received by ALBANK after the Closing Date with respect to Taxes paid by the Company for any available discount. Subsequent periods ending prior to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive ClosingDate.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Arrow Financial Corp)
Proration. All rents, other amounts payable by the tenants under the Leases, including the Tower Leases and the Additional Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases, including the Tower Leases and Billboard Leases, if any, and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing, which proration obligation expressly shall survive Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent extent, of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income utilities with respect to the Property for the month in which the Closing occurs, to all rent under the extent collected by Seller on or before the Closing DateGolf Shop Lease, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated as of the Closing Date as follows:
(a) Purchaser shall receive a credit equal to the amount of the security deposit (if any) held by Seller under the Golf Shop Lease.
(b) All real estate taxes and assessments, both general and special, water charges and sewer rents, whether or not then due or payable, and all other normally proratable items shall be prorated to the Closing Date, with Purchaser receiving based upon the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other latest assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closingactual invoices available. Should any rollback such proration be inaccurate based upon the actual tax bill or similar taxes assessment when received, either party hereto may demand and shall be due entitled to receive on demand, a payment from the other correcting such malapportionment. Seller shall pay all costs associated with any fees, taxes, impact fees, assessments, delinquent or otherwise, and payable on or after any other land use charges attributable to a period prior to Closing. All payments received by Purchaser from the tenant under the Golf Shop Lease following the Closing with respect shall first be applied to obligations incurred under the Golf Shop Lease following the Closing; provided, however, that while Purchaser is under no obligation to collect monies owed Seller by the tenant under the Golf Shop Lease attributable to obligations incurred prior to the transaction contemplated herebyClosing, such taxes shall be the sole responsibility of Purchaser agrees to deliver to Seller, and Seller hereby agrees within thirty (30) days after receipt thereof, all monies collected from the tenant under the Golf Shop Lease after the Closing Date but attributable to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on periods prior to the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closingagrees to cooperate with Seller in Seller’s efforts to collect from such tenant any such pre-closing monetary obligations owed Seller by such tenant.
(ac) Purchaser shall cause all utility meters to be read as of the Closing Date, shall cause the transfer of all utility services for the Property to Purchaser’s name as of the Closing Date, and where necessary, shall post deposits with the utility companies; provided, however, Seller shall cooperate reasonably with Purchaser in connection with switching utility services over to Purchaser’s name. Seller shall be entitled to a credit of whatever deposits Seller may have with any utility companies if Purchaser receives the benefit of such deposits. If the Closing shall occur before rents the actual amount of utilities and all other amounts payable by operating expenses with respect to the tenants under the Leases and the Additional Leases have actually been paid Property for the month in which the Closing occursoccurs are determined, the apportionment of such rents utilities and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes operating expenses shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx an estimate by Seller of such utilities and other operating expenses for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discountmonth. Subsequent to the Closing, when the tax rate actual amount of such utilities and the assessed valuation of other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Proration. All The following items shall be prorated as of 12:01 am on the Closing Date: (i) collected rents, other collected amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other collected income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and (ii) real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated and (iii) all operating expenses relating to the Closing Dateownership and operation of the Property, including any fees and charges under any Contracts being assigned to and assumed by Purchaser at Closing; provided however, in no event shall Purchaser be responsible for costs associated with Purchaser receiving property management contracts or employee expenses. If permitted by the benefits and burdens of ownership on the Closing Date. To the extent any such real estateapplicable utility providers, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date; otherwise, if possible; otherwise utilities shall be prorated between Seller and Purchaser at Closing, with such proration to be readjusted at such time as final utility bills become available. Any amounts unpaid under the Contracts which Purchaser elects or is obligated to assume at Closing shall be prorated between Seller and Purchaser at Closing. If accurate allocations cannot be made at Closing because current bills are not obtainable, Seller and Purchaser shall allocate such income or expenses at Closing on the best available information, subject to adjustment upon receipt of the final xxxx or other evidence of the applicable income or expense. Delinquent rent shall not be prorated.
(a) If Subsequent to the Closing shall occur before Closing, if any such rents and other income are received by Purchaser, all other such amounts payable by shall be applied in the tenants under following order: (i) first to rent due for the Leases and the Additional Leases have actually been paid for month or months following the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar monthto keep rent current, then Purchaser shall receive a credit (ii) next, to delinquent rent due for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid (iii) the balance to delinquent rent due for the period between the first of prior to the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all occurs. Any such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance Seller shall be paid by Purchaser to Seller within thirty sixty (3060) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any such rents or and other income payable to Purchaser, as provided above, are actually received by Seller, Seller shall immediately remit the same, or Purchaserto Purchaser within sixty (60) days following Seller’s prorata share receipt thereof and such rent shall be calculated and applied as aforesaid. Purchaser shall receive a credit at Closing for all Deposits that are being held by or on behalf of Seller, as reflected on the final Rent Roll delivered to Purchaser (and interest thereon if required by law or contract to be earned thereon). Purchaser shall receive a credit at Closing for all rent rebates, deductions, concessions or offsets with respect to the Leases for the Academic Year, if applicable, including, without limitation, the value of any gift cards payable to tenants following Closing (but only to the extent the cost of any such gift cards have not been paid for by Seller), as reflected on the final Rent Roll delivered to Purchaser. Seller agrees that, after The foregoing does not include any credit for “concessions” in the Closing, it shall not file any eviction action form of free rent provided to a tenant which results in an effort to collect any outstanding rents that remain owing to Seller after a net effective rent as shown on the ClosingRent Roll.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis based on 103% of the tax rate taxes assessed against the Property for the calendar year immediately preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the calendar year in which the Closing occurs, subject to any notice of reassessment which may have been received prior to Closing. Should such proration not be based on the actual amount of the taxes for the period in question and should such proration prove to be inaccurate upon receipt of the actual bills for the Property, then, either Seller or Purchaser may demand a payment from the other party correcting such malapportionment, except in the case of real estate taxes which at the expiration of such period are subject to appeal. Claims with respect to the adjustment which are subject to the appeal of real estate taxes will be valid if made on or before the date that is sixty (60) days after a final order or resolution shall have been issued in such appeal. Both parties shall use good faith efforts to resolve any disputed claims promptly. The obligations of the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly under this Section 6.3(b) shall survive Closingfor a period of sixty (60) days after final bills are received to ascertain final apportionment of taxes.
(c) Seller shall pay be entitled to receive refunds for any and all assessmentsdeposits which Seller has made with utility companies, contributionsand Purchaser shall replace such deposits at Closing. In the event that a post-closing true-up is necessary, fees and related charges required Purchaser shall work diligently with Seller to be paid upon transfer of finalize the Property prorations within one hundred twenty (120) days after the Closing Date (except as to real estate taxes for the current period, the final adjustment with respect to which shall take place pursuant to any declaration or restriction affecting Section 6.3(b). Seller and Purchaser shall have reasonable access to, and the Propertyright to inspect and audit, the other’s books to confirm the final prorations. The terms and provisions of Notwithstanding anything to the contrary in this Agreement, Seller’s liabilities related to prorations under this Section 6.3 shall expressly not be subject to the Ceiling. The agreements of Seller and Purchaser set forth in this Section 6.3 shall survive Closingthe Closing as specified in this Section 6.3.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities (except in the event Seller is able to obtain a meter reading as of the Closing Date, in which event utilities will not be prorated) and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, date Seller receives the Purchase Price in immediately available funds with Purchaser Seller receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any such rents which are delinquent as of Closing and other income are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, which are past due and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period rents were delinquent prior to Closing, or to the extent such rents were payable for the month of Closing but were not prorated at Closing. Notwithstanding Purchaser shall make a good faith effort and attempt to collect any such rents and other amounts and other income not apportioned at the foregoing provisions Closing for the benefit of Seller, however, Purchaser shall not be required to expend any funds or institute any litigation in its collection efforts. Nothing in this Section 6.3(a)) shall restrict Seller's right to collect delinquent rents directly from a tenant by any legal means; provided, (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Sellerhowever, Seller shall immediately remit the same, not be entitled to evict any tenant or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingotherwise terminate a tenant's lease.
(b) Non-delinquent taxes will be prorated based on the latest available tax information.
(c) Seller shall endeavor in good faith to obtain a meter reading as of the Closing Date. If the Closing shall occur before the tax rate or the assessed valuation actual amount of utilities (if a meter reading was not obtained) and all other operating expenses with respect to the Property is fixed for the then current yearmonth in which the Closing occurs are determined, the apportionment of taxes such utilities and other operating expenses shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx an estimate by Seller of such utilities and other operating expenses for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discountmonth. Subsequent to the Closing, when the tax rate actual amount of such utilities and the assessed valuation of other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(cd) Notwithstanding anything to the contrary contained herein, (i) Purchaser shall have no rights or claims with respect to the tenant payments of operating expenses for calendar year 2003 and prior years and (ii) Purchaser shall have no rights or claims with respect to amounts owed by tenants to Seller for reimbursement of certain capital expenditures made by Seller to the Property prior to the Effective Date, and with respect to items (i) and (ii) above, Seller shall be entitled to collect such amounts directly from tenants in accordance with this Section 6.3 and such amounts shall not be prorated and shall not be subject to the priority of payment set forth in Section 6.3 (a) above.
(e) Prepaid rentals and other tenant charges and security deposits (including any portion thereof which may be designated as prepaid rent) under Leases, if and to the extent that such deposits are in Seller's actual possession or control and have not been otherwise applied by Seller to any obligations of any tenants under the Leases, shall be credited against the Purchase Price paid to Seller at the Closing. Upon Closing, Purchaser shall assume full responsibility for all such prepaid rentals, other charges and security deposits to be refunded to the tenants under the Leases (to the extent such amounts are required to be refunded by the terms of such Leases). In the event that any security deposits are in the form of letters of credit or other financial instruments (the "NON-CASH SECURITY DEPOSITS") Seller will, at Closing, cause such Non-Cash Security Deposits to be transferred to Purchaser and Purchaser will not receive a credit against the Purchase Price for such Non-Cash Security Deposits. In the event Purchaser cannot be named the beneficiary under the Non-Cash Security Deposits as of Closing, Seller will endeavor in good faith and on behalf of Purchaser to draw on such Non-Cash Security Deposits if warranted until such time as Purchaser is named the beneficiary under such Non-Cash Security Deposits.
(f) Seller shall pay be responsible for all assessmentsaccrued and payable tenant improvement and leasing commission costs and expenses to the extent such costs are landlord's obligations under any lease of space in the Improvements that is executed prior to the Effective Date. Purchaser shall be responsible for and shall reimburse Seller (or prorate to the extent Seller receives any rental income under such new lease) at Closing for all costs and expenses incurred and paid by Seller under (i) any new lease of space in the Improvements executed after the Effective Date and (ii) any extension, contributionsrenewal or modification of any lease of space in the Improvements executed after the Effective Date. Said costs and expenses shall include, but not be limited to, costs incurred and paid by Seller for tenant improvements, leasing commissions, capital improvements, and reasonable attorney's fees (with the costs in items (i) and related charges required (ii) above being referred to be herein as the "POST EFFECTIVE DATE LEASE EXPENSES").
(g) Seller has disclosed to Purchaser and Purchaser hereby acknowledges that the Environmental Protection Agency ("EPA") has requested that Seller complete certain tenant improvements at the EPA's leased premises which include, among other things, installing a new key card access system. Purchaser hereby expressly consents to and approves such tenant PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS Page 11 Hawthorne Plaza/Triple Net Properties, L.L.C. improvement work and in connection therewith, at Closing, to the extent the costs and expenses incurred and paid upon transfer of by the Property landlord under the EPA Lease is fully reimbursable by the EPA to the landlord pursuant to the EPA Lease (or supplemental EPA lease), then Purchaser shall reimburse Seller the amount of all costs and expenses incurred and paid by Seller in connection with such tenant improvement work. Notwithstanding anything to the contrary contained herein, the foregoing is not a guaranty by Seller that Purchaser will be able to collect any declaration or restriction affecting amounts owed by the PropertyEPA pursuant to its reimbursement obligation under the EPA Lease. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Proration. All rents(a) At each Closing, the following items shall be --------- apportioned between the Transferring Entity and TowerCo: (i) federal, state, local or foreign Taxes (other amounts than income taxes) payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens Transferred Interests of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possibleIncluded Sites; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller other items set forth in Exhibit D attached hereto. Such apportionments shall be prorated with Purchaser receiving the portion made pro rata on a per diem basis as of each Closing Date so that all such rentals Taxes and other payments attributable to the period prior to such Closing Date shall be for the account of the Transferring Entity, and all such Taxes and other payments attributable to the period from and after Closingsuch Closing Date shall be for the account of TowerCo. In Notwithstanding anything to the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, contrary in good fundsthis Agreement, all such up- front, bolt-on or attachment fees or payments and escrow amounts shall first be applied related to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be Existing Leases paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, prior to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following applicable Closing shall be retained by Purchaser, and Seller shall have no rights remain with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingapplicable Transferring Entity.
(b) If In the Closing shall occur before event that the tax rate or amount of any item to be prorated is not determinable at the assessed valuation time of the Property is fixed for the then current yeareach Closing, the apportionment of taxes such proration shall be upon made on the basis of the tax rate best available information, and the applicable Transferring Entity and TowerCo shall re-prorate such item promptly upon receipt of the applicable bills therefor and shall make between themselves any equitable adjustment required by reason of any difference between the estimated amount used as a basis for the preceding yearproration at each Closing and the actual amount subject to proration. In the event any prorated item is due and payable at the time of a Closing, including all matters appearing on the tax same shall be paid at such Closing. If any prorated item is not paid at a Closing, and either party has identified that item at Closing as a properly prorated item, the applicable Transferring Entity shall deliver to TowerCo the bills therefor promptly upon receipt thereof and TowerCo shall be responsible for the payment of TowerCo's pro rata share in full thereof within the time fixed for payment thereof and before the same becomes delinquent, provided that TowerCo's obligation to make such payment before it has become delinquent is subject to TowerCo's having received the xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuationtherefor in a sufficiently timely manner. The proration In no event shall allow TowerCo be responsible for any available discount. Subsequent to prorated item about which TowerCo receives notice more than eighteen (18) months following the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive applicable Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer If the Share Price determined as of the Property first anniversary of the Final Closing (the "Subsequent Share Price") is less than the Initial Share Price, then CCIC shall immediately thereafter, at CCIC's option, either: (x) pay the Transferring Entities cash in an amount (the "Make-up Amount") equal to (i) (a) the difference between the Initial Share Price and the Subsequent Share Price multiplied by (b) the number of shares of Parent Stock issued pursuant to the immediately preceding paragraph minus (ii) the gross proceeds to any declaration ----- Transferring Entity from all sales of such Parent Stock prior to the first anniversary of the Final Closing; or restriction affecting (y) issue to BMI and BST that number of shares of Parent Stock equal to the PropertyMake-up Amount divided by the Subsequent Share Price; in each case not to exceed $50 million in cash or $75 million in Parent Stock. The terms and provisions of this Section 6.3 If CCIC elects to so issue Parent Stock, any such Parent Stock shall expressly survive Closingbe subject to the Registration Rights Agreement.
Appears in 1 contract
Samples: Sublease Agreement (Crown Castle International Corp)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) to Purchaser shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated as of Closing, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing. In , with the event parties agreeing to true-up such proration, to the extent necessary to cause an accurate proration of rentals is being made pursuant to Section 6.3(a)(iisuch income, within ten (10) above, then for business days following Closing. For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing post‑closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases Leases, and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing, which proration obligation with respect to the period on or before Closing expressly shall survive Closing, and shall occur within ten (10) business days following Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty sixty (3060) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser more than sixty (60) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) All interest payable under the Loan with respect to the month in which Closing occurs shall be prorated at Closing. At the Closing, Purchaser shall assume the obligation to maintain any reserves or escrows on deposit by Seller with Lender. At the Closing, (i) all amounts held by Lender in such reserves or escrows shall be reimbursed by Purchaser to Seller, as an adjustment to the Cash Portion, (ii) Purchaser shall receive a credit against the Cash Portion for any negative balance in such reserves or escrows, and (iii) Seller shall assign its rights in and to all such existing reserves and escrows to Purchaser. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust II, Inc.)
Proration. All rents, all other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, Date (with Purchaser receiving deemed the benefits and burdens owner on the day of ownership Closing provided that Purchaser funds in immediately available funds all amounts due by Purchaser reflected on the Closing Date. To Statement by noon of the extent any such real estate, personal property taxes and other assessments with respect Closing Date in order to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation allow Seller to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due all loans and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name fund all other disbursements on the Closing Date, if possible; otherwise utilities Seller shall be prorated at Closing. Any amounts unpaid under deemed the Contracts which Purchaser elects owner on the Closing Date and any subsequent day until the day Seller's funds are released to assume at Closing shall be prorated between Seller before wiring deadlines with sufficient time allow Seller to pay all loans and Purchaser at Closing.fund all other disbursements) in accordance with the following:
(a) If the Closing shall occur before rents (and all other amounts payable by the tenants under the Leases Leases) and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated upon the basis of such rents and other amounts and other income actually received by Seller. Uncollected rents due Seller as follows: (i) if landlord under the Closing occurs from and after Leases shall not be prorated at the first and through and including the fifteenth day time of any calendar monthClosing, then but Purchaser shall receive make a credit for rentals good faith effort to collect same on Seller's behalf and to tender the same to Seller upon receipt, provided that have been paid from all rents under the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding Leases collected by Purchaser on or after the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing all amounts due under the Leases at the time of collection (i.e., current rents and other amounts sums due Purchaser as the current owner and landlord) with the balance, if any, payable to Purchaser for the period from and after ClosingSeller, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and but only to the extent of any rental delinquencies owed by any such tenant amounts delinquent and actually due Seller.
(b) If the Closing shall occur before the actual amount of utilities and all other operating expenses with respect to Seller the Property for the period prior to Closing. Notwithstanding month in which the foregoing provisions Closing occurs are determined, the apportionment of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all such utilities and other rentals that are received by Purchaser following Closing operating expenses shall be retained upon the basis of a reasonable estimate by Purchaser, Seller of such utilities and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaserother operating expenses for such month. If, subsequent Subsequent to the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the proration of such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. Seller shall not assign to Purchaser any rents deposits which Seller has with any of the utility services or companies serving the Property. Purchaser shall arrange with such services and companies to have accounts opened in Purchaser's name on the Closing Date. All public utility service in Seller's name shall be terminated as of the Closing Date. The present insurance coverage on the Property shall be terminated as of the Closing Date, and there shall be no proration of insurance premiums. There shall be no proration of bonuses or lump-sum payments, if any, received by Seller prior to the Effective Date of this Agreement under laundry leases, cable agreements, telecommunication agreements or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingproperty agreements.
(bc) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the latest available tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest rates and assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, Closing when the tax rate and the assessed valuation actual amount of taxes with respect to the Property are fixed for the year in which the of Closing occursare determined, the parties agree to adjust the proration of such taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(cd) At the Closing, all security, pet, advance rental and other deposits made under the Leases and not previously applied by Seller as provided in the Leases shall pay all assessmentsbe transferred by Seller to Purchaser by appropriate adjustments on the Closing Statement. The agreements of Seller and Purchaser set forth in this Section 6.5 shall survive the Closing; provided, contributionshowever, fees with respect to prorated items for which adjustment is permitted under this Section 6.5, such claim for adjustment shall be forever barred unless the party seeking an adjustment first requests the adjustment and related charges required to be paid upon transfer provides written request and proof of the Property pursuant necessity for the adjustment to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive other party within one (1) year after the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Amrecorp Realty Fund Ii)
Proration. All rents, all other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, Date (with Purchaser receiving deemed the benefits and burdens owner on the day of ownership Closing provided that Purchaser funds in immediately available funds all amounts due by Purchaser reflected on the Closing Date. To Statement by 1:00 p.m. Central Time of the extent any such real estate, personal property taxes and other assessments with respect Closing Date in order to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation allow Seller to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due all loans and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name fund all other disbursements on the Closing Date, if possible; otherwise utilities Seller shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at owner on the Closing shall be prorated between Seller and Purchaser at Closing.Date) in accordance with the following:
(a) If the Closing shall occur before rents (and all other amounts payable by the tenants under the Leases Leases) and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated upon the basis of such rents and other amounts and other income actually received by Seller. Uncollected rents due Seller as follows: (i) if landlord under the Closing occurs from and after Leases shall not be prorated at the first and through and including the fifteenth day time of any calendar monthClosing, then but Purchaser shall receive make a credit for rentals good faith effort to collect same on Seller's behalf and to tender the same to Seller upon receipt, provided that have been paid from all rents under the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding Leases collected by Purchaser on or after the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing all amounts due under the Leases at the time of collection (i.e., current rents and other amounts sums due Purchaser as the current owner and landlord) with the balance, if any, payable to Purchaser for the period from and after ClosingSeller, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and but only to the extent of any rental delinquencies owed by any such tenant amounts delinquent and actually due Seller.
(b) If the Closing shall occur before the actual amount of utilities and all other operating expenses with respect to Seller the Property for the period prior to Closing. Notwithstanding month in which the foregoing provisions Closing occurs are determined, the apportionment of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all such utilities and other rentals that are received by Purchaser following Closing operating expenses shall be retained upon the basis of a reasonable estimate by Purchaser, Seller of such utilities and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaserother operating expenses for such month. If, subsequent Subsequent to the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the proration of such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. Seller shall not assign to Purchaser any rents deposits which Seller has with any of the utility services or companies serving the Property. Purchaser shall arrange with such services and companies to have accounts opened in Purchaser's name on the Closing Date. All public utility service in Seller's name shall be terminated as of the Closing Date. The present insurance coverage on the Property shall be terminated as of the Closing Date, and there shall be no proration of insurance premiums. Provided that Seller or its predecessor entered into same prior to September 1, 2006, there shall be no proration of bonuses or lump-sum payments, if any, received by Seller prior to the Effective Date of this Agreement under laundry leases, cable agreements, telecommunication agreements or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingproperty agreements.
(bc) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the latest available tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest rates and assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, Closing when the tax rate and the assessed valuation actual amount of taxes with respect to the Property are fixed for the year in which the of Closing occursare determined, the parties agree to adjust the proration of such taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(cd) At the Closing, all security, pet, advance rental and other deposits made under the Leases and not previously applied by Seller as provided in the Leases shall pay all assessmentsbe transferred by Seller to Purchaser by appropriate adjustments on the Closing Statement. The agreements of Seller and Purchaser set forth in this Section 6.5 shall survive the Closing; provided, contributionshowever, fees with respect to prorated items for which adjustment is permitted under this Section 6.5, such claim for adjustment shall be forever barred unless the party seeking an adjustment first requests the adjustment and related charges required to be paid upon transfer provides written request and proof of the Property pursuant necessity for the adjustment to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive other party within one (1) year after the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Republic Realty Fund I)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation Closing, the parties’ obligations to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities Utility billing to Seller shall be canceled by Seller as of the Closing Date, and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at are not terminated as of Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated as of Closing, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing. In , with the event parties agreeing to true-up such proration, to the extent necessary to cause an accurate proration of rentals is being made pursuant to Section 6.3(a)(ii) abovesuch income, then for as soon after Closing as reasonably possible. For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by PurchaserPurchaser or Seller, in good funds, all such amounts shall first be applied to post-post closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance balance, if any, shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, thereof to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be paid upon transfer of incorrect, the Property pursuant parties agree to any declaration or restriction affecting the Propertypromptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All rentsTwo (2) days prior to Closing, Purchaser and Seller shall agree on an estimated net proration amount (the "Proration Amount"), which shall be determined by totaling the estimated amounts owed by one Party to the other pursuant to this Section 1.4.
(a) Common area maintenance charges and assessments ("CAM"), insurance, utilities, property taxes, rent, and other amounts payable by the tenants Seller under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected paid for by Seller or required to be paid for by Seller for a period after the Closing Date, shall be prorated as of the Closing Date. Taxes directly payable to governmental entities shall be prorated on a calendar-year basis (applicable to July 1 and December 1, 2007 tax bills estimated based on 2007 assessments, if available, and if not on 2006 taxes adjusted for increases in consumer price index and millage rates). CAM, insurance, utilities, property taxes, rent and any amounts billed (before or before after the Closing) by landlords for other items under the Leases for the period prior to the Closing Date, and real estate and personal property taxes and other assessments with respect which (i) Seller has not paid prior to the Property for Closing or (ii) have not been taken into account in the year in which computation of the Closing occursProration Amount, shall be prorated a continuing obligation of Seller which shall survive the Closing. Seller's continuing obligations shall include, without limitation, Seller's pro rata share of all post-Closing reconciliations and determinations of CAM, insurance, utilities, property taxes, rent, and other amounts paid in estimated monthly installments at each Individual Premises as each landlord makes such reconciliation. If, under the terms of any Lease, Purchaser is required to pay rent based on percentage of sales for any period prior to Closing or that includes the Closing Date, then Seller shall pay its pro rata share of such percentage rent based on the sales made by Seller from the applicable Leased Real Property prior to the Closing Date. For purposes of such proration, with Purchaser receiving the benefits and burdens of ownership on minimum sales base specified in the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing applicable Lease shall be prorated between Seller and Purchaser at Closingbased on the number of days in such period before and after the Closing Date.
(ab) If Utilities and other customarily prorated expenses, including, but not limited to, water, sewer, gas, electricity, trash removal, snow removal and fire protection service, if such utilities cannot be transferred as of the Closing Date, and amounts payable by Seller under the Assumed Contracts, to be paid for by Seller or required to be paid for by Seller for a period after the Closing Date, shall occur before rents be prorated as of the Closing -7- Date. Purchaser shall arrange with all utility companies to have accounts placed in Purchaser's name beginning on the Closing Date; provided, however, that Seller shall use prompt and all reasonable efforts to cooperate with Purchaser in the transfer of such utilities to Purchaser, including but not limited to, reasonable efforts to obtain final meter readings and executing any documents required to assign the existing telephone numbers for the Premises to Purchaser. Seller shall remain responsible for any payments due to third-parties attributable to the period prior to the Closing Date for such utilities.
(c) Security deposits previously paid by subtenants under the Subleases shall be transferred by Seller to Purchaser at the Closing. Rents due from subtenants under the Subleases, and CAM, insurance, utilities, property taxes, and other amounts payable by the tenants subtenants under the Leases Subleases shall be prorated as of the Closing Date on the basis of the period for which such amounts are payable (if, as and when collected). Purchaser shall apply rent and other income received from subtenants under the Additional Leases have actually been paid for Subleases after the Closing Date in the following order of priority: (i) first, to base rent first coming due after the Closing Date and applicable to the period of time after the Closing Date, which amount shall be retained by Purchaser, (ii) second, to payment of the current base rent then due in the month in which the Closing Date occurs, which amount shall be prorated between Seller and Purchaser as of the apportionment of such rents and Closing Date, (iii) third, to other amounts and other income shall be calculated as follows: (i) if payable by subtenants under the Closing occurs from and Subleases before or after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies("Other Subtenant Receivables"), and (iiiv) if thereafter, to delinquent base rent which was due and payable as of the Closing occurs from and Date but not collected by Seller prior to the Closing Date. Seller shall not have the right to pursue the collection of Other Subtenant Receivables after the sixteenth and including Closing Date. If Seller receives any amounts from the final day subtenants under the Subleases after the Closing Date, which are attributable, in whole or in part, to any period after the Closing Date, Seller shall remit to Purchaser that portion of any calendar month, then such rents actually the amounts received by Seller shall be prorated with to which Purchaser receiving the portion of all such rentals attributable to the period from and is entitled within ten (10) business days after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s Seller's receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(bd) If the Closing shall occur before the tax rate or the assessed valuation of the Property Purchaser may, but is fixed for the then current yearnot required to, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for offset any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) amount owed it by Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of under this Section 6.3 1.4 against the Holdback Amount; provided, however, Purchaser shall expressly survive Closingfirst give written notice of such offset to Seller, and if Seller does not respond within five (5) days, Purchaser shall have the right to execute such offset.
Appears in 1 contract
Proration. All rentsTaxes: At Closing, other amounts payable by the tenants under the Leases proration of income and expense and the Additional Leases----------------- apportionment of taxes shall be apportioned between Seller and Purchaser as of the Closing Date on the basis that Seller owns the Property on the Closing Date, if any, and all other income with respect to the Property following items:
(i) All real-estate and personal property taxes and assessments based upon the discounted amount of the latest available bills. The parties agree to reprorate the taxes at such time as the exact amount of such taxes for the month in which the Closing occurs1998 become known. The 1998 taxes shall be paid by Seller prior to Closing.
(ii) All rents (both earned and prepaid), other income, utilities and all other operation expenses with respect to the extent collected by Seller on or before the Closing DateProperty, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, occurs shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens as of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before any rents and all other amounts payable by from the tenants under the Leases and the Additional Leases Property have actually been paid for the month in which the Closing occurs, only the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall will be prorated with Purchaser receiving the portion of all such rentals attributable at Closing. If any tenant owing rent to Seller is fully current in his/her obligations to Purchaser, then subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any such rents which are delinquent as of Closing owing to Seller are actually received by Purchaser; immediately upon its receipt of such rents, in good fundsPurchaser shall pay to Seller its proportionate share thereof for such month. Purchaser shall pay over to Seller any such rents not apportioned at the Closing received by Purchaser, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the benefit of Seller.
(iii) All utility and/or service charges. Seller shall, where practical, cause meters to be read and obtain final invoices through and including the Closing Date. Where this is not practical, the parties shall assume equal per diem use over the period from and after Closingof the billing, and the balance adjustment shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereofmade accordingly. Utility deposits, to the extentif any, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller Seller. Purchaser shall have no rights replace any utility deposits or utility bonds outstanding with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent regard to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit utilities serving the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the ClosingProperty.
(biv) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding yearAny Assumed Contracts, including all matters appearing on the tax xxxx for such year, whether ad valorem prepaid items or non-ad valorem, applied licenses to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closingextent they are assumable (equipment leases, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occursmaintenance contracts, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closingetc.).
(cv) The agreements of Seller and Purchaser set forth in this section 3(D) shall pay all assessments, contributions, fees survive the Closing and related charges required to shall not be paid upon transfer of merged in the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive ClosingDeed.
Appears in 1 contract
Proration. All rentsThe operation of the Business and the income and normal operating expenses, other amounts payable by including without limitation Assumed Liabilities and prepaid expenses, attributable thereto through 11:59 p.m. on the tenants Closing Date (the “Adjustment Date”) shall be for the account of Seller and thereafter, except as provided for operations at the Bay Point Property under the Leases and Manufacturing Agreement, for the Additional Leases, if any, and all other income with respect account of Buyer. Notwithstanding anything to the Property for the month contrary in which the Closing occursthis Agreement, to the extent collected by Seller on or before after the Closing Date, the operation of the Business at the Bay Point Property and real estate the allocation of income and personal expenses shall occur as provided in the Manufacturing Agreement. Expenses for goods or services received both before and after the Adjustment Date, interest expenses, property taxes and other assessments with respect ad valorem Taxes (to the Property for the year in which the Closing occursextent discussed below) and assessments (and refunds of such Taxes), shall be prorated to the Closing Date, with Purchaser receiving the benefits power and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Sellerutilities charges, and Seller hereby agrees to indemnify, defend rents and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller similar prepaid and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing deferred items shall be prorated between Seller and Purchaser Buyer as of the Adjustment Date (the “Closing Date Proration”). All special assessments and similar charges or liens imposed against the Purchased Assets in respect of any period of time through the Adjustment Date, whether payable in installments or otherwise, shall be the responsibility of Seller, and amounts payable with respect to such special assessments, charges or liens in respect of any period of time after the Adjustment Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date, Seller shall estimate all apportionments pursuant to this Section 4.4 and shall deliver a statement of its estimates for the Closing Date Proration to Buyer (which statement shall set forth in reasonable detail the basis for those estimates). At the Closing, the net amount due as a result of the estimated apportionments set forth in the Closing Date Proration (the “Proration Amount”), which may be a positive or negative number, shall be used to adjust the Purchase Price as set forth in Section 4.2. By (60) days after the Closing (the “Payment Date”), Buyer shall deliver to Seller a statement of any adjustments to Seller’s estimate of the apportionments, and Buyer shall pay to Seller, or Seller shall pay to Buyer, as the case may be, any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). If Seller disputes Buyer’s determinations, or if at Closing.
any time after delivery of Buyer’s statement of determinations, either party determines that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter, it shall be presented to the Accounting Firm, whose decision on the matter shall be binding and whose fees and expenses shall be borne equally by the parties). If the amount of property and ad valorem Taxes for any period that begins before and ends after the Closing Date are not known three (3) days prior to the Closing Date, then the amount of such Taxes will be estimated as of such date. If the amount of such Taxes is not known by sixty (60) days after the Closing Date, once the amount of such Taxes is known, Buyer shall pay to Seller, or Seller shall pay to Buyer, as the case may be, the net amount due as a result of the actual apportionment of such Taxes. For purposes of this Agreement, in the case of property and ad valorem Taxes payable or refunds with respect to Tax periods that begin before and end after the Closing Date, (a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment portion of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for Taxes or refunds allocated to the period between the first of the month in which Closing occurs and the day preceding ending on the Closing Date so long as each shall be the amount of such tenant has no rental delinquenciesTax for the entire period multiplied by a fraction the numerator of which is the number of days in the Tax period ending on the Closing Date and the denominator of which is the number of days in the entire Tax period, and (iib) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Tax or refunds allocated to the period from and that begins after Closing. In the event Closing Date shall be deemed to be the proration amount of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser Tax or refund for the entire period from and after Closing, and less the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, amount of such Tax or refund that was allocated to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If ending on the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive ClosingDate.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Proration. All rents(a) At each Closing, the following items shall be apportioned between the Transferring Entity and TowerCo: (i) federal, state, local or foreign Taxes (other amounts than income taxes) payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens Transferred Interests of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possibleIncluded Sites; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller other items set forth in EXHIBIT B attached hereto. Such apportionments shall be prorated with Purchaser receiving the portion made pro rata on a per diem basis as of each Closing Date so that all such rentals Taxes and other payments attributable to the period prior to such Closing Date shall be for the account of the Transferring Entity, and all such Taxes and other payments attributable to the period from and after Closingsuch Closing Date shall be for the account of TowerCo. In Notwithstanding anything to the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, contrary in good fundsthis Agreement, all such up- front, bolt-on or attachment fees or payments and escrow amounts shall first be applied related to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be Existing Leases paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, prior to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following applicable Closing shall be retained by Purchaser, and Seller shall have no rights remain with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingapplicable Transferring Entity.
(b) If In the Closing shall occur before event that the tax rate or amount of any item to be prorated is not determinable at the assessed valuation time of the Property is fixed for the then current yeareach Closing, the apportionment of taxes such proration shall be upon made on the basis of the tax rate best available information, and the applicable Transferring Entity and TowerCo shall re-prorate such item promptly upon receipt of the applicable bills therefor and shall make between themselves any equitable adjustment required by reason of any difference between the estimated amount used as a basis for the preceding yearproration at each Closing and the actual amount subject to proration. In the event any prorated item is due and payable at the time of a Closing, including all matters appearing on the tax same shall be paid at such Closing. If any prorated item is not paid at a Closing, and either party has identified that item at Closing as a properly prorated item, the applicable Transferring Entity shall deliver to TowerCo the bills therefor promptly upon receipt thereof and TowerCo shall be responsible for the payment of TowerCo's pro rata share in full thereof within the time fixed for payment thereof and before the same becomes delinquent, provided that TowerCo's obligation to make such payment before it has become delinquent is subject to TowerCo's having received the xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuationtherefor in a sufficiently timely manner. The proration In no event shall allow TowerCo be responsible for any available discount. Subsequent to prorated item about which TowerCo receives notice more than eighteen (18) months following the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive applicable Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Sublease Agreement (Crown Castle International Corp)
Proration. All The following items shall be prorated at Closing: (i) all rents, other amounts payable by the tenants under the Leases and the Additional Space Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and (ii) real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated and (iii) all operating expenses relating to the Closing Dateownership and operation of the Property, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To If permitted by the extent any such real estateapplicable utility providers, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date; otherwise, if possible; otherwise utilities shall be prorated between Seller and Purchaser at Closing, with such proration to be readjusted at such time as final utility bills become available. Any amounts unpaid under the Contracts which Purchaser elects or is obligated to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Space Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as followsupon the basis of such rents, other amounts and other income received by Seller. Subsequent to the Closing, if any such rents and other income are received by Purchaser, all such amounts shall be applied in the following order: (i) if first to rent due for the month following the month in which Closing occurs from and after the first and through and including the fifteenth day of any calendar monthoccurs, then Purchaser shall receive a credit (ii) next, to delinquent rent due for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid (iii) the balance to delinquent rent due for the period between the first of prior to the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all occurs. Any such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance Seller shall be paid by Purchaser to Seller within thirty ten (3010) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any such rents or and other income payable to Purchaser, as provided above, are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof thereof, calculated as aforesaid, to PurchaserPurchaser no later than thirty (30) days after Seller’s receipt. Seller agrees that, after Following the Closing, it Purchaser agrees, upon two (2) days’ prior notice from Seller, to provide Seller with access to Purchaser’s books, records and accounts relating to the operation of the Property at Purchaser’s notice address set forth in Section 8.1 below and during standard business hours in order that Seller may verify compliance with the preceding terms and provisions of this Section 5.3(a). The obligations of the parties under this Section 6.3(a) expressly shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the survive Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon based on the basis most current and accurate billing information available. Should such proration not be based on the actual amount of the tax rate taxes for the preceding yearperiod in question and should such proration prove to be inaccurate upon receipt of the actual bills for the Property, including all matters appearing on the tax xxxx for such yearthen, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to extent such amount exceeds One Thousand and No/100 Dollars ($1,000.00), either Seller or Purchaser may demand within one (1) year after Closing a payment from the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay other party correcting such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closinginaccurate apportionment.
(c) Seller shall pay be entitled to receive refunds for any and all assessmentsdeposits which Seller has made with utility companies, contributionsand Purchaser shall replace such deposits at Closing.
(d) Purchaser shall receive a credit against the Purchase Price for any amounts outstanding under the documents and instruments evidencing and securing that certain $6,000,000.00 mezzanine loan (the “Mezzanine Loan”) made on or about June 30, fees 2011from Trail Creek Mezzanine Lending, LLC (“Trail Creek Mezzanine”) to Seller and related charges evidenced by that certain Note dated as of June 30, 2011 made by Seller to the order of Trail Creek Mezzanine in the principal face amount of $6,000,000.00 (as modified, amended and/or restated from time to time, the “Mezzanine Note”; the Mezzanine Note and the other documents, instruments and agreements evidencing, securing and otherwise relating to the Mezzanine Loan are referred to herein as the “Mezzanine Loan Documents”), as assigned by Trail Creek Mezzanine to Purchaser.
(e) Purchaser shall receive a credit against the Purchase Price equal to the amount required to be paid upon transfer provide Purchaser, as the “Lender” of the Mezzanine Loan, with a fourteen percent (12%) internal rate of return on the $6,000,000 Mezzanine Loan amount (after taking into account previously received interest and fees by the Lender of the Mezzanine Loan).
(f) Purchaser shall receive a credit against the Purchase Price in the amount of $250,000.00 for scheduled capital improvements to the Property pursuant to any declaration or restriction affecting be completed by Purchaser after the PropertyClosing. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 5.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Proration. All rents, other amounts payable by (a) On the tenants under the Leases and the Additional Leases, if any, and Closing Date all other income with respect to the Property monthly payments for the month in which the Closing occursoccurs (including base rent, to the extent collected by Seller on or before the Closing Datecommon area maintenance fees, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentenceutility charges) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases transferred at the Closing (the “Prorated Charges”) shall be apportioned and prorated between Sellers and Buyer as of the Sale Commencement Date with (i) Buyer bearing the expense of Buyer’s proportionate share of such Prorated Charges that shall be equal to the product obtained by multiplying (A) a fraction, the numerator being the amount of the Prorated Charges under the applicable Lease and the Additional Leases have actually been paid for denominator being the total number of days in the lease month in which the Closing occurs, times (B) the apportionment number of days in such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the lease month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and following the day preceding that immediately precedes the Closing Sale Commencement Date so long as each and paying such tenant amount to Sellers to the extent payment for such Prorated Charges has no rental delinquenciesbeen made by Sellers prior to the Closing, and (ii) if Sellers bearing the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the remaining portion of all such rentals attributable Prorated Charges (and paying the amounts thereof to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only Buyer to the extent payment for such Prorated Charges has not been previously made by Sellers). The net amount of all Prorated Charges owed to Buyer and Sellers under this shall be referred to as the “Buyer Proration Amount” if owed to Buyer or the “Seller Proration Amount” if owed to Sellers. Except as set forth in this Section 2.10 and in Section 6.5, no amounts paid or payable under or in respect of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions Acquired Asset or group of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing Acquired Assets shall be retained by Purchaser, apportioned and Seller shall have no rights with respect thereto, prorated between Sellers and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the ClosingBuyer.
(b) As to all non-monthly real estate related payments, the same shall be apportioned between Sellers and Buyer as of 12:01 a.m. on the Sale Commencement Date. If any amounts are payable in installments, all installments due through the Closing together with the accrued but unpaid portion of any other installments not yet due as of the Closing shall be prorated based on the periods of time covered by such installments occurring before and after the Closing Date (for the avoidance of doubt, with Buyer being responsible for all amounts for the period beginning as of 12:01 a.m. on the Sale Commencement Date).
(c) As to real estate taxes and assessments, if the Closing shall occur before the a new real estate or personal property tax rate or the assessed valuation of the Property is fixed for the then current yearapplicable property, the apportionment of such taxes for such property at the Closing shall be upon the basis of the old tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, fiscal year applied to the latest assessed valuation. The proration shall allow ; provided, however, that there will be no re-apportionment or re-computation of such Taxes for any available discount. Subsequent property following the Closing as a result of any error, omission, recalculation or other change in any applicable real estate or personal property tax rate or otherwise.
(d) If any of the items subject to apportionment under the foregoing provisions cannot be apportioned at the Closing because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in computing apportionments at the Closing are discovered subsequent to the Closing, when then such item shall be reapportioned and such errors and omissions corrected as soon as practicable after the tax rate Closing Date and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closingproper party reimbursed.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyutilities, water and sewer meter charges and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the tax year in which the Closing occurs, shall be prorated to as of 11:59 p.m. New York time on the day before the Closing Date, Date with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To , provided however, if the extent any such real estate, personal property taxes and other assessments with respect to funds representing the Property are unknown balance of the Purchase Price have not been received by Seller or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled lender by Seller and reestablished in Purchaser’s name 5:00 p.m. New York time on the Closing Date, if possible; otherwise utilities all pro-rations shall be prorated at Closingrecalculated as of the next business day. Any amounts unpaid under Seller shall provide estimated pro-rations no later than four (4) business days prior to Closing and the Contracts which Purchaser elects to assume at Closing shall be prorated between delayed for each day that Seller and Purchaser at Closingfails to timely deliver said estimated pro-rations.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for through the month in which the Closing occursoccurs (it being agreed that Seller is entitled to all arrears in rent), the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing such rents, other amounts and other income are actually received by Purchaser, in good fundsPurchaser from the tenants owing such amounts, all such amounts shall first be applied first to post-closing the month preceding the month in which the Closing occurs, then to the month in which the Closing occurs, then to rents and other amounts due to Purchaser for the period from and after Closingwhich are past due, and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following PurchaserSeller. Purchaser shall make a good faith effort and attempt to collect any such rents and other amounts and other income not apportioned at the Closing for the benefit of Seller; however, Purchaser shall not be required to expend any substantial funds or institute any litigation in its collection efforts. Nothing in this Agreement shall restrict Seller’s receipt thereof, right to the extent, and only to the extent of any rental delinquencies owed collect delinquent rents directly from a tenant by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaserlegal means, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant be entitled to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, keep any such rents or other income are actually received by damages so collected. At Closing, prepaid rents and refundable security deposits in the possession or control of Seller on Closing (together with any interest accrued thereon only if interest is specifically required to be paid thereon under applicable law or under the terms of a specific Lease) at Seller, Seller ’s sole option shall immediately remit the sameeither be (i) transferred to Purchaser at Closing and not subject to adjustment, or (ii) adjusted by way of a credit in favor of Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b1) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes and assessments shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation, with a further reconciliation to be made when the final rate or valuation rate is received.
(2) If any certiorari or other proceedings for the reduction of real estate taxes are pending at the Closing Date with respect to the tax year in which the Closing occurs or any tax year prior thereto, Seller shall continue the prosecution of such action. The proration Any tax refund resulting from such proceeding, net of Seller’s costs of prosecuting the same, and after deducting any refunds required to be made to tenants pursuant to Leases, shall allow be apportioned between Seller and Purchaser in the same proportion that real estate taxes for any available discountsuch tax year are apportioned.
(c) If the Closing shall occur before the actual amount of utilities, water or sewer meter charges or other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the apportionment of such utilities, water or sewer meter charges or other operating expenses shall be upon the basis of an estimate by Seller of such utilities, water or sewer meter charges or other operating expenses for such month. Subsequent to the Closing, when the tax rate and the assessed valuation actual amount of such utilities, water or sewer meter charges or other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities, water or sewer meter charges or other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(cd) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer If Leases contain obligations (“ Lease Obligations”) on the part of the tenants for: (i) CPI or similar adjustments, (ii) percentage rents, (iii) escalation payments for taxes, labor or operations, and/or (iv) other expenses including, without limitation, common area maintenance or any other operating cost pass-throughs or retroactive charges payable by tenants which have accrued as of the Closing Date but are not then due and payable, the amount of such Lease Obligations shall be prorated as of the Closing Date and paid and adjusted between Seller and Purchaser when the actual amount of such Lease Obligations with respect to the Property pursuant is determined and such Lease Obligations have been received by Purchaser from such tenant or tenants.
(e) New Tenant Costs shall be pro-rated in accordance with Section 8.2 hereof and any tenant improvement costs, leasing commissions, rent concessions or other leasing costs attributable to the current term of any declaration or restriction affecting Lease entered into as of the PropertyEffective Date shall be the responsibility of Seller (“Seller Inducement Obligations”). To the extent any Seller Inducement Obligations are outstanding at Closing, Purchaser shall receive a credit for the same. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 5.3 shall expressly survive the Closing. All prorations shall be completed and finalized no later than twelve (12) months following the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Proration. All rents(a) With respect to Taxes to be prorated in accordance with Section 3.2(a) hereof only, other amounts payable by the tenants under the Leases Purchaser shall prepare and the Additional Leasestimely file all Tax Returns, if any, and all other income required to be filed with respect to the Purchased Assets, and shall duly and timely pay all such Taxes shown to be due on such Tax Returns; provided, however, that Seller shall file all of its federal and state income tax returns (including those reporting prorated income) and shall not be required to permit Purchaser to review or comment on any such income tax returns; provided, further, that any income Tax Returns that report Seller's income shall be prepared in accordance with Section 3.6 hereof. Purchaser shall make such Tax Returns that it prepares under this Section 7.1 available for Seller's review and comment no later than sixty (60) days prior to the due date for filing each such Tax Re turn, and shall not unreasonably refuse to accept any such comments or proposed changes. Within ten (10) days after receipt of such Tax Return, Seller shall pay to Purchaser Seller's proportionate share of the amount shown as due on such Tax Return as determined in accordance with Section 3.2 hereof.
(b) With respect to Property Taxes to be prorated in accordance with Section 3.2(b) hereof only, (i) for all such Property Taxes having a lien date in the month in which year before the calendar year of the Closing occursDate, Seller shall prepare and timely file all related Property Tax Returns required to be filed with respect to the extent collected by Purchased Assets and Seller shall duly and timely pay all such Property Taxes; (ii) for all such Property Taxes having a lien date in the same calendar year of the Closing Date, Seller shall prepare and timely file all related Property Tax Returns required to be filed with respect to the Purchased Assets and Seller shall duly and timely pay all such Property Taxes; and (iii) for all such Property Taxes having a lien date in the year after the calendar year of the Closing Date, Seller shall prepare and file when due all related Property Tax Returns required to be filed with respect to the Purchased Assets, except that, if such Property Tax Returns ar e not due before the Closing Date, Seller shall prepare and file such Property Tax Returns on or before the Closing Date, and real estate in either case Purchaser shall duly and personal property taxes timely pay all such Property Taxes, and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted reimbursed for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated a portion thereof in accordance with Section 3.2(b)(iii). Seller shall, in good faith, prepare and timely file any such Property Tax Returns, including any affirmative claims for adjustments, reasonably and in good faith defend the previous sentence) shall survive Closingvalues and adjustments filed, and preserve any and all appeal rights related to such returns. Should The Parties hereby acknowledge that, without regard to any rollback or similar taxes be due other provision of this Agreement, all Property Tax Returns, documentation and payable on or after Closing with respect supporting workpapers relating to the transaction contemplated hereby, such taxes any Property Taxes of Seller shall be the sole responsibility of Seller, and Seller hereby agrees proprietary to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in have not and will not be disclosed to Purchaser’s name on the Closing Date; provided, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurshowever, the apportionment of such rents and other amounts and other income shall be calculated as follows: that (i) if the Closing occurs from and after the first and through and including the fifteenth day Seller shall, upon request of any calendar monthPurchaser, then Purchaser shall receive a credit for rentals that have been paid from the date provide an estimate of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquenciesProperty Taxes to be paid, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser Party receiving the portion actual P roperty Tax bills or statements from the Taxing Authorities shall, upon request from the other Party, provide copies of all such rentals attributable Property Tax bills or statements to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingrequesting Party.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (PPL Electric Utilities Corp)
Proration. All Except as otherwise expressly provided in this Agreement, all rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect Not later than seven (7) days prior to the Property are unknown or otherwise not then-scheduled Closing Date, Seller shall prepare a proforma of the accounting for the transaction that reflects how items subject to proration and/or adjustment will be accounted for at under this Section 6.3 or under any other provisions of this Agreement (the “Preliminary Closing SellerStatement”), a copy of which shall be delivered to Purchaser for Purchaser’s obligation review, with such supporting documentation as Purchaser may reasonably require being attached thereto. On the day prior to pay Closing, Purchaser Seller’s prorata share and Seller will conduct inventories, examinations and audits of said amounts the Property as may be necessary to verify and/or make revisions to the Preliminary Closing Statement based on such audits, examinations and inventories, and on the night preceding the Closing immediately after Night Audit Cut-Off (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated herebydefined below), such taxes shall be the sole responsibility of Seller, Purchaser and Seller hereby agrees to indemnify, defend will make all final adjustments necessitated by such night’s operations and hold Purchaser harmless therefrom, which obligations prepare a final statement of Seller expressly shall survive Closingprorations and adjustments required under this Section 6.3 with such supporting documentation as the Parties hereto may reasonably require being attached thereto (the “Closing Statement”). Utilities shall be canceled by Seller All prorations reflected on the Preliminary Closing Statement and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities Statement shall be prorated at Closingmade on the basis of the actual number of days in the year and month in which the Closing occurs or in the period of computation. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing No prorations shall be prorated between Seller and Purchaser at Closingmade in relation to insurance premiums.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any such rents which are delinquent as of Closing and other income are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, which are past due and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereofSeller, to the extent, and only to the extent net of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions cost of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received collection incurred by Purchaser following Closing in connection therewith. Purchaser shall be retained by Purchaser, make a good faith effort and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort attempt to collect any outstanding such rents that remain owing and other amounts and other income not apportioned at the Closing for the benefit of Seller, however, Purchaser shall not be required to Seller after the Closingexpend any funds or institute any litigation in its collection efforts.
(b) Ad valorem real estate taxes and assessments for the Hotel Parcel for calendar year 2013 (payable in 2014) shall be prorated to the Closing Date based upon an estimated total calendar year tax amount equal to the total actual 2012 (payable in 2013) tax amount. The 2013 Renaissance Chicago Downtown Hotel taxes (payable in 2014) for the Hotel Parcel shall be reprorated upon issuance of the final bills therefor (and any necessary adjustment payment be made by the applicable party). Ad valorem real estate taxes and assessments for the Hotel Service Area Parcel are paid by the Hotel Service Area Lease Lessor and Seller is obligated to pay Seller’s proportionate share thereof in accordance with the Hotel Service Area Lease, and the same shall not be prorated hereunder except as provided in Section 6.4 below. Except for the foregoing prorations and reprorations (including without limitation the prorations and reprorations described above in this Section 6.3(b)) and the prorations and reprorations described in Section 6.4 below, Seller shall not have any liability or responsibility for any portion of any ad valorem real estate tax xxxx related to the Property issued after the Closing Date.
(c) If the Closing shall occur before the tax rate or the assessed valuation actual amount of utilities and all other operating expenses with respect to the Property is fixed for the then current yearmonth in which the Closing occurs are determined, the apportionment of taxes such utilities and other operating expenses shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx an estimate by Seller and Purchaser of such utilities and other operating expenses for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discountmonth. Subsequent to the Closing, when the tax rate actual amount of such utilities and the assessed valuation of other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carey Watermark Investors Inc)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated prorated, based upon the discount available in the month of Closing, to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases Leases, and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Proration. All rentsTwo (2) days prior to Closing, Purchaser and Seller shall agree on an estimated net proration amount (the "Proration Amount"), which shall be determined by totaling the estimated amounts owed by one Party to the other pursuant to this Section 1.4.
(a) Common area maintenance charges and assessments ("CAM"), insurance, utilities, property taxes, rent, and other amounts payable by the tenants Seller under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected paid for by Seller or required to be paid for by Seller for a period after the Closing Date, shall be prorated as of the Closing Date. Taxes directly payable to -7- governmental entities shall be prorated on a calendar-year basis (applicable to July 1 and December 1, 2006 tax bills estimated based on 2005 taxes adjusted for increases in consumer price index and millage rates). CAM, insurance, utilities, property taxes, rent and any amounts billed (before or before after the Closing) by landlords for other items under the Leases for the period prior to the Closing Date, and real estate and personal property taxes and other assessments with respect which (i) Seller has not paid prior to the Property for Closing or (ii) have not been taken into account in the year in which computation of the Closing occursProration Amount, shall be prorated a continuing obligation of Seller which shall survive the Closing. Seller's continuing obligations shall include, without limitation, Seller's pro rata share of all post-Closing reconciliations and determinations of CAM, insurance, utilities, property taxes, rent, and other amounts paid in estimated monthly installments at each Individual Premises as each landlord makes such reconciliation. If, under the terms of any Lease, Purchaser is required to pay rent based on percentage of sales for any period prior to Closing or that includes the Closing Date, then Seller shall pay its pro rata share of such percentage rent based on the sales made by Seller from the applicable Leased Real Property prior to the Closing Date. For purposes of such proration, with Purchaser receiving the benefits and burdens of ownership on minimum sales base specified in the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing applicable Lease shall be prorated between Seller and Purchaser at Closingbased on the number of days in such period before and after the Closing Date.
(ab) If Utilities and other customarily prorated expenses, including, but not limited to, water, sewer, gas, electricity, trash removal, snow removal and fire protection service, if such utilities cannot be transferred as of the Closing Date, and amounts payable by Seller under the Assumed Contracts, to be paid for by Seller or required to be paid for by Seller for a period after the Closing Date, shall occur before rents be prorated as of the Closing Date. Purchaser shall arrange with all utility companies to have accounts placed in Purchaser's name beginning on the Closing Date; provided, however, that Seller shall use prompt and all reasonable efforts to cooperate with Purchaser in the transfer of such utilities to Purchaser, including but not limited to, reasonable efforts to obtain final meter readings and executing any documents required to assign the existing telephone numbers for the Retail Stores to Purchaser. Seller shall remain responsible for any payments due to third-parties attributable to the period prior to the Closing Date for such utilities.
(c) Security deposits previously paid by subtenants under the Subleases shall be transferred by Seller to Purchaser at the Closing. Rents due from subtenants under the Subleases, and CAM, insurance, utilities, property taxes, and other amounts payable by the tenants subtenants under the Leases Subleases shall be prorated as of the Closing Date on the basis of the period for which such amounts are payable (if, as and when collected). Purchaser shall apply rent and other income received from subtenants under the Additional Leases have actually been paid for Subleases after the Closing Date in the following order of priority: (i) first, to base rent first coming due after the Closing Date and applicable to the period of time after the Closing Date, which amount shall be retained by Purchaser, (ii) second, to payment of the current base rent then due in the month in which the Closing Date occurs, which amount shall be prorated between Seller and Purchaser as of the apportionment of such rents and Closing Date, (iii) third, to other amounts and other income shall be calculated as follows: (i) if payable by subtenants under the Subleases before or after the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occursDate, and Seller shall receive a credit for all rentals (iv) thereafter, to delinquent base rent which was due and payable but not yet paid for the period between the first as of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if but not collected by Seller prior to the Closing occurs from and after the sixteenth and including the final day of Date. -8-
(d) Purchaser may, but is not required to, offset any calendar month, then such rents actually received amount owed it by Seller shall be prorated with Purchaser receiving under this Section 1.4 against the portion of all such rentals attributable Escrow Funds pursuant to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation terms of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive ClosingEscrow Agreement.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) to Purchaser shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases Leases, if any, and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing, which proration obligation expressly shall survive Closing, and shall occur within ten (10) business days following Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty sixty (3060) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing post‑closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser more than sixty (60) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, date Seller receives the Purchase Price in immediately available funds with Purchaser Seller receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any such rents which are delinquent as of Closing and other income are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, which are past due and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, Seller. Purchaser shall make a good faith effort and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort attempt to collect any outstanding such rents that remain owing and other amounts and other income not apportioned at the Closing for the benefit of Seller, however, Purchaser shall not be required to Seller after the Closingexpend any funds or institute any litigation in its collection efforts. Nothing in this paragraph shall restrict Seller's right to collect delinquent rents directly from a tenant by any legal means.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. If the Property is not assessed as a separate parcel for tax or assessment purposes, which obligation expressly then such taxes and assessments attributable to the Property shall survive be determined by Purchaser and Seller. If, as of the Closing, the Property is not being treated as a separate tax parcel, then within thirty (30) days after the Closing, Purchaser shall, at its sole cost and expense, have the Property assessed separately for tax and assessment purposes.
(c) Seller If the Closing shall pay occur before the actual amount of utilities and all assessments, contributions, fees and related charges required other operating expenses with respect to be paid upon transfer of the Property pursuant for the month in which the Closing occurs are determined, the apportionment of such utilities and other operating expenses shall be upon the basis of an estimate by Seller of such utilities and other operating expenses for such month. Subsequent to any declaration the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the proration of such utilities and other operating expenses and, if necessary, to refund or restriction affecting the Propertyrepay such sums as shall be necessary to effect such adjustment. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 5.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cornerstone Realty Income Trust Inc)
Proration. All prepaid income and expense items arising from the --------- operation of the Station including, but not limited to, state and local taxes (excluding income taxes), real and personal, upon the Assets, license fees, frequency discounts, rents, other prepaid amounts payable by the tenants under the Leases in respect of any Station Agreement or Trade Agreement, non-cash receivables pursuant to Trade Agreements, insurance and prepayments for advertising and broadcast time, utility charges, and the Additional LeasesFCC's annual license fee, if any, and all other income with respect to the Property for the month in which shall be prorated as of the Closing occurs, to Date and accounted for and paid insofar as practicable as between Seller and Buyer at the extent collected by Seller on or before Closing. Within sixty (60) days following the Closing Date, and real estate and personal property taxes and other assessments with respect Seller shall furnish to the Property for the year in which Buyer a good faith computation of any proration items not determinable as of the Closing occurs, shall be prorated to Date and a restatement of the proration items determined as of the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated Date in accordance with the previous sentencesentence the "Computation and Restatement"). Buyer shall notify Seller within ten (10) shall survive Closingdays whether or not Buyer agrees with such Computation and Restatement. Should any rollback Buyer notify Seller of its agreement with such Computation and Restatement, a final adjustment payment shall be made by Buyer to Seller or similar taxes Seller to Buyer, as the case may be, within twenty (20) days after the provision of such notice to Seller. Should Buyer fail to agree with such Computation and Restatement, Seller and Buyer shall promptly retain a mutually agreeable accounting firm for the purpose of computing all items to be due and payable on or after prorated as of the Closing with respect Date pursuant to the transaction contemplated hereby, such taxes terms of this Section 2.8. Said accounting firm shall be instructed to compute such proration items as promptly as reasonably possible and to send a letter to Buyer and Seller providing its conclusion as to the sole responsibility computation of Sellersuch proration items and a summary of the basis for its conclusion (the "Proration Notice"). The amounts stated in the Proration Notice shall be conclusive and binding for all purposes hereunder, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
within twenty (a20) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and days after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of Proration Notice, a final adjustment payment shall be made by Buyer to Seller or Seller to Buyer, as the month in which Closing occurs, case may be. Buyer and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first each bear fifty (50) percent of the month accounting firm's costs and expenses incurred in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated connection with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation preparation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive ClosingProration Notice.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Salem Communications Corp /Ca/)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and rents, all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and rents, other amounts and other income shall be calculated as follows: (i) upon the basis of such rents, other amounts and other income actually received by Seller. Subsequent to the Closing, if any such rents, other amounts and other income, are collected by Purchaser, Purchaser shall pay to Seller its proportionate share thereof for such month. Purchaser shall make a good faith effort and attempt to collect any such rents, other amounts and other income not apportioned at the Closing occurs from for the benefit of Seller.
(b) If the Closing shall occur before the actual amount of utilities and after other operating expenses with respect to the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit Property for rentals that have been paid from the date of Closing through the last day of the month in which the Closing occursoccurs are determined, the apportionment of such utilities and other operating expenses shall be upon the basis of an estimate by Seller shall receive a credit of such utilities and other operating expenses for all rentals payable but not yet paid such month. Subsequent to the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after are determined, the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable parties agree to the period from and after Closing. In the event adjust the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closingsuch utilities and other operating expenses and, if any rents which are delinquent necessary, to refund or repay such sums as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser necessary to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any effect such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingadjustment.
(bc) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes for the year in which the Closing occurs shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. The proration If the Property is not assessed as a separate parcel for tax or assessment purposes, then such taxes and assessments attributable to the Property shall allow for any available discountbe determined by Seller in its sole and absolute discretion. Subsequent to If, as of the Closing, when the tax rate and the assessed valuation of the Property are fixed is not being treated as a separate tax parcel, then within thirty (30) days after the Closing, Purchaser shall, as its sole cost and expense have the Property assessed separately for the year tax and assessment purposes. (*) See page 5
(a) This agreement of Seller and Purchaser set forth in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly this Section 6.4 shall survive the Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing, which proration obligation expressly shall survive Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Growth Trust, Inc.)
Proration. All The following items shall be prorated at Closing: (i) all rents, other amounts payable by the tenants under the Leases and the Additional Space Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and (ii) real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated and (iii) all operating expenses relating to the Closing Dateownership and operation of the Property, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To If permitted by the extent any such real estateapplicable utility providers, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date; otherwise, if possible; otherwise utilities shall be prorated between Seller and Purchaser at Closing, with such proration to be readjusted at such time as final utility bills become available. Any amounts unpaid under the Contracts which Purchaser elects or is obligated to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Space Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as followsupon the basis of such rents, other amounts and other income received by Seller. Subsequent to the Closing, if any such rents and other income are received by Purchaser, all such amounts shall be applied in the following order: (i) if first to rent due for the month following the month in which Closing occurs from and after the first and through and including the fifteenth day of any calendar monthoccurs, then Purchaser shall receive a credit (ii) next, to delinquent rent due for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid (iii) the balance to delinquent rent due for the period between the first of prior to the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all occurs. Any such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance Seller shall be paid by Purchaser to Seller within thirty ten (3010) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any such rents or and other income payable to Purchaser, as provided above, are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof thereof, calculated as aforesaid, to PurchaserPurchaser no later than thirty (30) days after Seller’s receipt. Seller agrees that, after Following the Closing, it Purchaser agrees, upon two (2) days’ prior notice from Seller, to provide Seller with access to Purchaser’s books, records and accounts relating to the operation of the Property at Purchaser’s notice address set forth in Section 9.1 below and during standard business hours in order that Seller may verify compliance with the preceding terms and provisions of this Section 6.3(a). The obligations of the parties under this Section 6.3(a) expressly shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the survive Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon based on the basis most current and accurate billing information available. Should such proration not be based on the actual amount of the tax rate taxes for the preceding yearperiod in question and should such proration prove to be inaccurate upon receipt of the actual bills for the Property, including all matters appearing on the tax xxxx for such yearthen, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to extent such amount exceeds One Thousand and No/100 Dollars ($1,000.00), either Seller or Purchaser may demand within one (1) year after Closing a payment from the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay other party correcting such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closingmalapportionment.
(c) Seller shall pay be entitled to receive refunds for any and all assessmentsdeposits which Seller has made with utility companies, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the PropertyPurchaser shall replace such deposits at Closing. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Proration. All rents, other amounts payable by (a) On the tenants under the Leases and the Additional Leases, if any, and Closing Date all other income with respect to the Property monthly payments for the month in which the Closing occursoccurs (including base rent, common area maintenance fees, and utility charges) under the Assumed Leases (the “Prorated Charges”) shall be apportioned and prorated between Sellers on the one hand and Buyer on the other hand as of the Closing Date with
(i) Buyer bearing the expense of Buyer’s proportionate share of such Prorated Charges that shall be equal to the extent collected product obtained by Seller on or before multiplying (A) a fraction, the Closing Date, numerator being the amount of the Prorated Charges under the applicable Lease and real estate and personal property taxes and other assessments with respect to the Property for denominator being the year total number of days in the lease month in which the Closing Date occurs, shall be prorated times (B) the number of days in such lease month following the day that immediately precedes the Closing Date and paying such amount to Sellers to the extent payment for such Prorated Charges has been made by Sellers prior to the Closing DateDate and not already taken into account in the Adjustment Amount, with Purchaser receiving and (ii) Sellers bearing the benefits remaining portion of such Prorated Charges (and burdens paying the amounts thereof to Buyer to the extent payment for such Prorated Charges has not been previously made by Sellers and not already taken into account in the Adjustment Amount). The net amount of ownership all Prorated Charges owed to Buyer and Sellers under this shall be referred to as the “Buyer Proration Amount” if owed to Buyer or the “Seller Proration Amount” if owed to Sellers. Except as set forth in this Section 2.10 and in Section 6.4, no amounts paid or payable under or in respect of any Acquired Asset or group of Acquired Assets shall be apportioned and prorated between Sellers and Buyer.
(b) As to all non-monthly real estate related payments under the Assumed Leases, the same shall be apportioned between Sellers and Buyer as of 12:01 a.m. on the Closing Date. To If any amounts are payable in installments, all installments due through the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance Date together with the previous sentence) shall survive Closing. Should accrued but unpaid portion of any rollback or similar taxes be other installments not yet due and payable on or after as of the Closing with respect to the transaction contemplated hereby, such taxes Date shall be prorated based on the sole responsibility periods of Seller, time covered by such installments occurring before and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on after the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(ac) If As to real estate Taxes and assessments, if the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid a new real estate or personal property tax rate is fixed for the month in which the Closing occursapplicable property, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if Taxes for such property at the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the old tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, fiscal year applied to the latest assessed valuation. The proration Promptly after the new tax rate is fixed, the apportionment of Taxes shall allow for be recomputed and any available discount. Subsequent discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at the Closing shall be promptly corrected and the proper Party reimbursed.
(d) If any of the items subject to apportionment under the foregoing provisions cannot be apportioned at the Closing because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in computing apportionments at the Closing are discovered subsequent to the Closing, when then such items shall be reapportioned and such errors and omissions corrected in connection with the tax rate and the assessed valuation delivery of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees Statement and related charges required to be paid upon transfer determination of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive ClosingPurchase Price.
Appears in 1 contract
Samples: Asset Purchase Agreement
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. Utilities shall not be prorated but, rather, instructions shall be given to the utility companies by Seller (with a duplicate copy of such instruction being provided concurrently to Purchaser) to read the meters on the Closing Date and to issue separate statements thereafter. In the event that any provider of utilities shall refuse to issue separate statements in the manner aforesaid, applicable utility charges shall be prorated such that all charges accruing for the period prior to Closing Date shall be charged to Seller and all charges accruing from and after the Closing Date shall be charged to Purchaser, and should the actual utility charges through the Closing Date not be available at Closing then the proration shall be made based upon a good faith estimate of the parties, with Seller and Purchaser to adjust such proration promptly following Closing, upon receipt of the actual utility charges for such period. Seller and Purchaser shall cooperate to cause the transfer of the Property’s utility accounts from Seller to Purchaser, including without limitation as to the making of any required security deposits or the transfer thereof with appropriate credit to Seller therefor at the Closing. To the extent any such real estate, personal property taxes amounts payable or that will become payable under any Assigned Contract relate to periods both prior to and other assessments with respect to after the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Billboard Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from and after the first and through and including the fifteenth day basis of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing. In the event the , which proration of rentals is being made pursuant to Section 6.3(a)(iiobligation expressly shall survive Closing, and shall occur within ten (10) above, then for a period of thirty (30) business days following Closing, if . If any rents which are delinquent as of Closing are actually received by Purchaser, in good fundsPurchaser following Closing, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after After the Closing, it Seller shall not file not, directly or indirectly, take any eviction action in an effort to collect any outstanding rents or other amounts that remain owing to Seller after the Closingmay be due from any such tenants.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration When the actual tax xxxx for the Property is received by either party, such party shall allow for any available discount. Subsequent provide notice of its receipt and a copy of such xxxx to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occursother party; thereafter, the parties agree to adjust shall promptly make a cash settlement based upon the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees actual tax rates and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Propertyassessed values. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Growth Trust, Inc.)
Proration. All rentsincome, other amounts payable by the tenants under the Leases and the Additional Leases, if any, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments (without reference to any early payment discount) with respect to the Property accrued prior to Closing for the taxable year in which the Closing occursoccurs (a taxable year being the year for which taxes accrue, rather than the year during which such taxes are payable), shall be prorated to the Closing Date, date Seller receives the Purchase Price in immediately available funds with Purchaser receiving Seller being allocated the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current taxable year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, taxable year applied to the latest assessed valuation. The proration shall allow for valuation (without reference to any available early payment discount). Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the taxable year in which the Closing occurs, including the results of any tax appeal, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. If the Property is not assessed as a separate parcel for tax or assessment purposes, which obligation expressly then such taxes and assessments attributable to the Property shall survive be reasonably determined by Seller. If, as of the Closing, the Property is not being treated as a separate tax parcel, then within thirty (30) days after the Closing, Purchaser shall, at its sole cost and expense, have the Property assessed separately for tax and assessment purposes. In the event the Property has been assessed for property tax purposes at such rates as could result in “roll-back” taxes upon changes in land usage or ownership of the Property, Purchaser agrees to pay all such taxes and indemnify, defend and save Seller harmless from and against any and all claims and liabilities for such taxes.
(b) With respect to any tax appeal for the Property decided after the Closing in the owner’s favor relating to a period preceding the Closing, then either: (i) any reimbursement attributable to a period preceding the Closing shall be paid directly to Seller by the applicable taxing authority; or (ii) in the event any tax overpayments are handled in the form of tax credits or are otherwise reimbursed to Purchaser, Purchaser shall pay to Seller the amount of the overpayment attributable to any period preceding the Closing, promptly after the final decision or settlement. In the event Seller has initiated any tax appeal, Seller shall have the right to continue to pursue any such appeal after the Closing.
(c) Seller If the Closing shall pay occur before the actual amount of utilities, insurance, common area maintenance and all assessmentsother operating expenses (collectively, contributions, fees and related charges required the “Operating Expenses”) with respect to be paid upon transfer of the Property pursuant for the month and year in which the Closing occurs are determined, the apportionment of such Operating Expenses shall be upon the basis of a good faith estimate by Seller of such Operating Expenses for such month and year. Subsequent to any declaration the Closing, when the actual amount of such Operating Expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the proration of such Operating Expenses and, if necessary, to refund or restriction affecting the Propertyrepay such sums as shall be necessary to effect such adjustment. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 7.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, Date with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise If possible utilities shall be prorated at Closingread one business day prior to the Closing Date for the purposes of proration. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall Seller. Certain Service Contracts require payments to be prorated with Purchaser receiving the portion of all such rentals attributable made in arrears quarterly, and subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing rents, Service Contract income and other income are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies or Service Contract payments owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any such rents or and other income allocable to the period after the Closing Date are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall will not be allowed to file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year or before certain Tax Increment Financing benefits are received for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and rate, the assessed valuation of the Property and any TIF benefits are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) The parties acknowledge and agree that (i) income tax allocations by the Company to Seller will be determined as though the tax year of the Company ended on the date of Closing, and (ii) the Company shall pay provide Seller with all assessmentsrequired tax information as soon as practicable, contributions, fees and related charges in no event later than the time that such information is required to be paid upon transfer of the Property pursuant provided to Seller for federal and state income tax purposes (determined without regard to any declaration or restriction affecting extensions other than extensions to which Seller has consented).
(d) The parties acknowledge and agree that the PropertyPurchaser will have sole responsibility for the filing of any federal and state income and other applicable tax forms required to be filed by the Company. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (America First Apartment Investors Inc)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated shall be prorated on a per diem basis as of 11:59 p.m. on the date prior to the Closing Date, with Purchaser receiving Date (the benefits and burdens of ownership on the Closing Date"PRORATION DATE"). To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished Purchaser pursuant to RCW 60.80.020(1), hereby waive the services of Title Company in Purchaser’s name on administering the Closing Date, if possible; otherwise utilities disbursement of closing funds necessary to satisfy any unpaid utility charges. All utility xxxxxxxx shall be prorated at Closing. Any amounts unpaid under as of the Contracts which Purchaser elects Proration Date and Seller will attempt to assume at Closing shall be prorated between Seller and Purchaser at Closinghave utility meters read as of that date.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: upon the basis of such rents, other amounts and other income payable under the Leases in the month of Closing, with Purchaser receiving a credit at Closing in an amount equal to the product of (i) if the Closing occurs per diem amount of such rent and other charges payable in the month of Closing, and (ii) the number of days from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through Date until the last day of the month in which the Closing occurs, . Rents and Seller shall receive a credit all other charges payable by the tenants under the Leases for all rentals payable but not yet paid for periods prior to the period between the first month of Closing which are in arrears as of the month in which Closing occurs and the day preceding the Closing Proration Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall not be prorated with Purchaser receiving the portion of all such rentals attributable prorated. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing and other charges are actually received by Purchaser, in good fundsPurchaser and such delinquent rents and other delinquent charges are for any periods preceding the month of Closing, all such amounts shall first be applied to post-closing rents and other amounts due and
(a) shall restrict Seller's right to Purchaser for the period collect delinquent rents directly from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed a tenant by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a)legal means; provided, (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) abovehowever, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant right to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents terminate a tenant's lease or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any otherwise commence eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingproceedings against such tenant.
(b) If the Closing shall occur before the tax rate or the assessed valuation Certain of the Leases contain tenant obligations to pay for taxes, common area expenses, operating expenses and/or additional charges of any other nature relating to the Property and/or certain portions thereof (collectively, the "CHARGES"). To the extent that tenants are obligated to reimburse Seller for Charges monthly, and such reimbursement is fixed actually received by Seller and is for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year month in which the Closing occurs, then any of the parties agree to adjust Charges actually received by Seller from such tenants for Charges for the proration of taxes and, if necessary, to refund or repay such sums as month in which Closing occurs shall be necessary to effect such adjustmentpro-rated between Seller and Purchaser, which obligation expressly shall survive on a per diem basis, based on Charges actually received by Seller for the month of Closing.
(c) Purchaser and Seller acknowledge and agree that Charges which Seller has heretofore collected from tenants at the Property (collectively, the "TENANTS") for calendar year 2004 from January 1, 2004 through and including the Closing Date ("SELLER'S RECONCILIATION PERIOD"), have not yet been reconciled with the Tenants to the extent Seller's recovery of such expenses from the Tenants for such period exceeded or was less than the actual amount of such expenses for such period (the "TENANT RECONCILIATION"). In connection with the Tenant Reconciliation, the parties agree that (i) within a reasonable time after Closing, Seller shall pay all assessmentsdeliver to Purchaser the data reasonably supporting the Charges Seller collected from the Tenants during Seller's Reconciliation Period and the amount of Charges actually paid by Seller during Seller's Reconciliation Period, contributionsand (ii) at the end of calendar year 2004, fees Purchaser shall be responsible for preparing the final Tenant Reconciliation (subject to Seller's approval with respect to Seller's Reconciliation Period) strictly in accordance with the terms and related charges required to be paid upon transfer conditions of the Property pursuant applicable Leases and, to the extent applicable, either reimbursing or billing Tenants accordingly. If the Tenant Reconciliation for Seller's Reconciliation Period shows that amounts collected during Seller's Reconciliation Period were more than the amount of Charges actually paid by Seller during Seller's Reconciliation Period, then Seller shall reimburse such Tenant to the extent of any declaration or restriction affecting over-payment of such Charges actually received by Seller for Seller's Reconciliation Period, except that if Purchaser requests that Seller pay such reimbursements to Purchaser, then Purchaser shall indemnify, defend and hold harmless Seller for Purchaser's failure to pay such reimbursements to the PropertyTenants. If it is determined that Tenant has underpaid to Seller any portion of the Charges for Seller's Reconciliation Period, Purchaser shall make good faith attempts to collect the amount of any under-payment of such Charges from such Tenant, and shall, upon receipt, immediately deliver such amount to Seller. The terms agreements of Seller and provisions of this Section 6.3 Purchaser set forth herein shall expressly survive the Closing.
(d) Notwithstanding anything to the contrary contained herein, (i) Purchaser shall have no rights or claims with respect to the tenant payments of operating expenses for calendar year 2003 and prior years and (ii) Purchaser shall have no rights or claims with respect to amounts owed by tenants to Seller for reimbursement of certain capital expenditures made by Seller to the Property prior to the Effective Date, and with respect to items (i) and (ii) above, Seller shall be entitled to collect such amounts directly from tenants in accordance with this
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Proration. All rents, other amounts payable by the tenants under the Leases, including the Tower Leases and the Additional Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar supplemental real property taxes relating to the Property and assessed for a period prior to Closing be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possiblepossible through commercially reasonable efforts; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases, including the Tower Leases and Billboard Leases, if any, and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing, which proration obligation expressly shall survive Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty ten (3010) days following Purchaser’s receipt thereof, to the extent, and only to the extent extent, of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding , but only after rentals paid by any such tenant are first applied to rental obligations owed by such tenant to Purchaser for the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser period following Closing shall be retained by which are currently due and payable as of the date of Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser’s receipt of such funds. If, subsequent to the Closing, any rents or other income are actually received by Seller, such rentals shall be paid by Seller shall immediately remit to Purchaser and applied by Purchaser to rentals owed by such tenant for the sameperiod from and after Closing which are currently due and payable as of the date of Seller’s receipt of such funds, or Purchaser’s prorata share thereof calculated as aforesaidwith the balance of such rentals, if any, to Purchaserbe retained by Seller to the extent of any rental delinquencies owed by such tenant to Seller. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases Leases, and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing, which proration obligation with respect to the period on or before Closing expressly shall survive Closing, and shall occur within ten (10) business days following Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) aboveAt Closing, then Seller shall receive credit for a period of and Purchaser shall pay Seller for 80% any delinquent rents that not more than thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closingpast due, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event parties agree that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust IV, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If Purchaser receives any past due rents due Seller within forty-five (45) days from the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occursDate, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from remit all past due funds to Seller. Thereafter, if Purchaser receives any past due payments due Seller up to the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing funds shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the at each Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closingfinal.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) to Purchaser shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefromfor, from and against any such taxes, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated as of Closing, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing. In , with the event parties agreeing to true-up such proration, to the extent necessary to cause an accurate proration of rentals is being made pursuant to Section 6.3(a)(iisuch income, within ten (10) above, then for business days following Closing. For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such rents, real estateestate taxes, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s its prorata share of said amounts (as calculated in accordance with the previous sentence) to Purchaser shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Tower Leases and Billboard Leases, if any, and all other income from the Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income at Closing shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated as of Closing, with Purchaser receiving the portion of all such rentals and other amounts attributable to the period from and after Closing. In , with the event parties agreeing to true-up such proration, to the extent necessary to cause an accurate proration of rentals is being made pursuant to Section 6.3(a)(iisuch income, within ten (10) above, then for business days following Closing. For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property.
(d) In the event any prorations made at Closing pursuant to this Section 6.3 are determined after Closing to be incorrect, the parties agree to promptly correct such error. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
Proration. All rents, other amounts payable by (a) On the tenants under the Leases and the Additional Leases, if any, and Closing Date all other income with respect to the Property monthly payments for the month in which the Closing occursoccurs (including base rent, common area maintenance fees, and utility charges) under the Assumed Leases transferred at the Closing (the “Monthly Prorated Charges”) shall be apportioned and prorated between Sellers and Buyer as of the Closing Date with (i) Buyer bearing the expense of Buyer’s proportionate share of such Monthly Prorated Charges that shall be equal to the extent collected product obtained by Seller on or before multiplying (A) a fraction, the Closing Date, and real estate and personal property taxes and other assessments with respect to numerator being the Property for amount of the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid Monthly Prorated Charges under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases applicable Assumed Lease and the Additional Leases have actually been paid for denominator being the total number of days in the lease month in which the Closing occurs, times (B) the apportionment number of days in such rents and other amounts and other income shall be calculated as follows: (i) if lease month following the day that immediately precedes the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquenciesDate, and (ii) if Sellers bearing the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the remaining portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the ClosingMonthly Prorated Charges.
(b) As to all non-monthly real estate related payments, including the percentage rent payable under any Assumed Lease, the same shall be apportioned between Sellers and Buyer as of 12:01 a.m. on the Closing Date. If any amounts are payable in installments, all installments due through the Closing together with the accrued but unpaid portion of any other installments not yet due as of the Closing shall occur be prorated based on the periods of time covered by such installments occurring before and after the tax rate or the assessed valuation Closing Date. Notwithstanding any other provision of the Property is fixed for the then current yearthis Agreement, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 2.8(b) shall expressly survive Closing.the Closing without limitation. (c)
(i) Real estate Taxes and assessments and (ii) other Taxes (in each case, other than Transfer Taxes) imposed upon or assessed directly against the Acquired Assets as of the Closing (including personal property Taxes and similar Taxes), in each case, for the Tax period in which the Closing occurs (the “Proration Period”), shall be apportioned and prorated between Sellers and Buyer as of the Closing Date with Buyer bearing the expense of Buyer’s proportionate 22
Appears in 1 contract
Samples: Asset Purchase Agreement (Village Super Market Inc)
Proration. (A) All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if any, and all other income with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar escape taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend indemnify and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s 's name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(aB) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases Leases, and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated Seller, with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for For a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s 's receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s 's prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(bC) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(cD) All interest payable under the Loan with respect to the month in which Closing occurs shall be prorated at Closing. At the Closing, Purchaser shall assume the obligation to maintain any reserves or escrows on deposit by Seller with Lender. At the Closing, (i) all amounts held by Lender in such reserves or escrows shall be reimbursed by Purchaser to Seller, as an adjustment to the Cash Portion, and (ii) Seller shall pay assign its rights in and to all assessments, contributions, fees such existing reserves and related charges required escrows to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive ClosingPurchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
Proration. All rents(a) Sellers and Buyer shall estimate as of the Effective Time and prorate at the Closing
(i) any amounts as of the Effective Time that were paid by Sellers prior to the Effective Time and that relate, other in whole or in part, to periods ending after the Effective Time, (ii) any amounts as of the Effective Time that are to be paid by Buyer after the Effective Time and that relate, in whole or in part, to periods prior to the Effective Time and (iii) any amounts that will become due and payable by after the tenants under the Leases and the Additional LeasesEffective Time, if anyin each case, and all other income with respect to (A) the Property for Assumed Contracts and (B) the month cost of all utilities used to service any of the Purchased Assets, including water, sewer, telecommunications, electricity and gas service, in which the Closing occurs, each case to the extent collected by Seller on or before not reflected in the Closing Date, and real estate and personal property taxes and other assessments with respect Working Capital or otherwise covered by Section 2.8. Any such amounts that are not available to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes Date shall be similarly prorated as of the sole responsibility of Seller, Effective Time as soon as practicable thereafter by Xxxxx and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the ClosingRepresentative.
(b) If Notwithstanding anything herein to the contrary, and without duplication of any amounts included in the determination of Closing Working Capital, all Property Taxes, if any, related to the Purchased Assets shall be prorated by Buyer and Sellers on the Closing shall occur before the tax rate or the assessed valuation Date as of the Effective Time. All such amounts to be prorated will be reflected on a Property is fixed Tax proration statement (the “Property Tax Statement”) to be agreed upon by the Parties prior to the Closing Date. If necessary for such proration, payments for Property Taxes shall initially be determined based on the previous year’s Property Taxes and shall later be adjusted to reflect the current year’s Property Taxes when the Property Tax bills are finally rendered. Sellers shall be liable for (and shall reimburse Buyer to the extent that Buyer shall have paid) that portion of Property Taxes relating to, or arising in respect of, periods ending prior to the Effective Time, and Buyer shall be liable for (and shall reimburse Sellers to the extent that Sellers shall have paid) that portion of Property Taxes relating to, or arising in respect of, periods ending after the Effective Time, including, in each case, any adjustments made after the Closing Date to the amounts reflected on the Property Tax Statement for the then current yearactual amount of Property Taxes as finally determined for the applicable period. The Parties shall cooperate to avoid, to the extent legally possible, the apportionment payment of taxes duplicate Property Taxes, and each Party shall be upon furnish, at the basis request of the tax rate for the preceding yearany other Party, including all matters appearing on the tax xxxx for such year, whether ad valorem proof of payment of any Property Taxes or non-ad valorem, applied other documentation that is a prerequisite to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation avoid payment of the a duplicate Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive ClosingTax.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement
Proration. All rentsThe following items relating to the Assets will be prorated between Buyer and Seller as of the Closing Date: Pre-paid lease and service contracts and other items assumed by Buyer (except that there shall be no proration of prepaid fees under any management contract). Water and other utility charges, other amounts payable by the tenants under the Leases and the Additional Leasesassignable deposits, if any, rent and all other income with respect common area maintenance charges due under the Main Lease. Prepaid liquor and food license fees and other fees and other charges for licenses and permits assigned by Seller to the Property for the month in which the Closing occurs, Buyer (but only to the extent collected that such licenses and permits are assignable by Seller on or before to Buyer under applicable law). Vacation pay and employee wages. All other items customarily prorated and adjusted in connection with the Closing Date, and real estate and personal sale of property taxes and other assessments with respect to of the Property for the year in which the Closing occurs, type contemplated by this Agreement. All prorations required under this Article V shall be prorated allocated so that items relating to time periods prior to the Closing Date, with Purchaser receiving the benefits Date will be allocated to Seller and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect items relating to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable timeperiods beginning on or after the Closing with respect Date will be allocated to Buyer (but only to the transaction contemplated hereby, extent that such taxes assets are part of the Assets acquired by Buyer hereunder and such liabilities are part of the Assumed Obligations assumed by Buyer). Seller shall be provide Buyer with its written estimate of the sole responsibility of amount payable by Buyer or Seller, and Seller hereby agrees to indemnifyas the case may be, defend and hold Purchaser harmless therefrom, which obligations under this Article V within ten (10) days of Seller expressly shall survive the Date of Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if the Closing occurs from and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, Buyer and Seller shall receive a credit for all rentals payable but not yet paid for negotiate in good faith to resolve any disagreements concerning the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable adjustments contemplated under this Article V prior to the period from and after Date of Closing. In the event that the proration of rentals is being made pursuant parties are unable to Section 6.3(a)(ii) above, then for a period of thirty resolve any such disagreement within fifteen (3015) days following Closingdelivery to Buyer of Seller's estimate, then, in such event, the parties shall submit the dispute to a mutually accepted independent accountant (the "Reviewing Accountant") to resolve such disagreement. Any determination by the Reviewing Accountant shall be completed by no later than ninety (90) days following the submission of the matter and shall be final, binding and conclusive with respect to the matters in dispute, absent fraud or manifest error. The fees of the Reviewing Accountant shall be proportioned equally between Buyer and Seller. The net amount of the prorations required hereunder shall be settled and paid in cash on or before the later of (a) June 1, 1996or (b) if prior to June 1, 1996 these matters are submitted to the Reviewing Accountant, within five days following receipt of the report of the Reviewing Accountant. If any rents which are delinquent terms prorated as of the Date of Closing are actually received by Purchaserbased on estimates (including, in good fundswithout limitation, all such amounts shall first be applied to post-closing percentage rents and other common area charges under the Main Lease) such proration shall be adjusted at such time as the final adjustments of such payments are made and any amounts due to Purchaser for Seller or Buyer, as the period from and after Closingcase may be, and the balance on account thereof shall be paid by Purchaser to Seller in cash within thirty ten (3010) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Proration. All rents(a) With respect to Taxes to be prorated in accordance with SECTION 3.2(a) hereof only, other amounts payable by the tenants under the Leases Purchaser shall prepare and the Additional Leasestimely file all Tax Returns, if any, and all other income required to be filed with respect to the Purchased Assets, and shall duly and timely pay all such Taxes shown to be due on such Tax Returns; provided, however, that Seller shall file all of its federal and state income tax returns (including those reporting prorated income) and shall not be required to permit Purchaser to review or comment on any such income tax returns; provided, further, that any income Tax Returns that report Seller's income shall be prepared in accordance with SECTION 3.6 hereof. Purchaser shall make such Tax Returns that it prepares under this SECTION 7.1 available for Seller's review and comment no later than sixty (60) days prior to the due date for filing each such Tax Return, and shall not unreasonably refuse to accept any such comments or proposed changes. Within ten (10) days after receipt of such Tax Return, Seller shall pay to Purchaser Seller's proportionate share of the amount shown as due on such Tax Return as determined in accordance with SECTION 3.2 hereof.
(b) With respect to Property Taxes to be prorated in accordance with SECTION 3.2(b) hereof only, (i) for all such Property Taxes having a lien date in the month in which year before the calendar year of the Closing occursDate, Seller shall prepare and timely file all related Property Tax Returns required to be filed with respect to the extent collected by Purchased Assets and Seller shall duly and timely pay all such Property Taxes; (ii) for all such Property Taxes having a lien date in the same calendar year of the Closing Date, Seller shall prepare and timely file all related Property Tax Returns required to be filed with respect to the Purchased Assets and Seller shall duly and timely pay all such Property Taxes; and (iii) for all such Property Taxes having a lien date in the year after the calendar year of the Closing Date, Seller shall prepare and file when due all related Property Tax Returns required to be filed with respect to the Purchased Assets, except that, if such Property Tax Returns are not due before the Closing Date, Seller shall prepare and file such Property Tax Returns on or before the Closing Date, and real estate in either case Purchaser shall duly and personal property taxes timely pay all such Property Taxes, and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted reimbursed for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated a portion thereof in accordance with SECTION 3.2(b)(iii). Seller shall, in good faith, prepare and timely file any such Property Tax Returns, including any affirmative claims for adjustments, reasonably and in good faith defend the previous sentence) shall survive Closingvalues and adjustments filed, and preserve any and all appeal rights related to such returns. Should The Parties hereby acknowledge that, without regard to any rollback or similar taxes be due other provision of this Agreement, all Property Tax Returns, documentation and payable on or after Closing with respect supporting workpapers relating to the transaction contemplated hereby, such taxes any Property Taxes of Seller shall be the sole responsibility of Seller, and Seller hereby agrees proprietary to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in have not and will not be disclosed to Purchaser’s name on the Closing Date; provided, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurshowever, the apportionment of such rents and other amounts and other income shall be calculated as follows: that (i) if the Closing occurs from and after the first and through and including the fifteenth day Seller shall, upon request of any calendar monthPurchaser, then Purchaser shall receive a credit for rentals that have been paid from the date provide an estimate of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquenciesProperty Taxes to be paid, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser Party receiving the portion actual Property Tax bills or statements from the Taxing Authorities shall, upon request from the other Party, provide copies of all such rentals attributable Property Tax bills or statements to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingrequesting Party.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pinnacle West Capital Corp)
Proration. All As applicable, all rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, date Seller receives the Purchase Price in immediately available funds with Purchaser Seller receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any such rents which are delinquent as of Closing and other income are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, which are past due and the balance shall be immediately paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, Seller. Purchaser shall make a good faith effort and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort attempt to collect any outstanding such rents that remain owing and other amounts and other income not apportioned at the Closing for the benefit of Seller, however, Purchaser shall not be required to Seller after the Closingexpend any funds or institute any litigation in its collection efforts. Nothing in this SECTION 6.3(A) shall restrict Seller's right to collect delinquent rents directly from a tenant by any legal means.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are is fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. In the event the Property has been assessed for property tax purposes at such rates as could result in "roll-back" taxes upon changes in land usage or ownership of the Property, which obligation expressly shall survive ClosingPurchaser agrees to pay all such taxes and indemnify and save Seller harmless from and against any and all claims and liabilities for such taxes.
(c) Seller If the Closing shall pay occur before the actual amount of utilities and all assessments, contributions, fees and related charges required other operating expenses with respect to be paid upon transfer of the Property pursuant for the month in which the Closing occurs are determined, the apportionment of such utilities and other operating expenses shall be upon the basis of an estimate by Seller of such utilities and other operating expenses for such month. Subsequent to any declaration the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the proration of such utilities and other operating expenses and, if necessary, to refund or restriction affecting the Propertyrepay such sums as shall be necessary to effect such adjustment. The terms agreements of Seller and provisions of Purchaser set forth in this Section SECTION 6.3 shall expressly survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Proration. All rents, all other amounts payable by the tenants under the Leases and the Additional Leases, if anyincome, utilities and all other income operating expenses with respect to the Property Property, including all amounts paid by Seller prior to Closing with respect to all Contracts to be assumed by Purchaser relating to periods after the Closing, for the month or other period in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the year in which the Closing occurs, shall be prorated to the Closing Date, Date (with Purchaser receiving deemed the benefits and burdens of ownership owner on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share day of said amounts (as calculated Closing) in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.following:
(a) If the Closing shall occur before rents (and all other amounts payable by the tenants under the Leases Leases) and all other income from the Additional Leases Property have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated upon the basis of such rents and other amounts and other income actually received by Seller. Uncollected rents due Seller as follows: (i) if landlord under the Closing occurs from and after Leases shall not be prorated at the first and through and including the fifteenth day time of any calendar monthClosing, then but Purchaser shall receive make a credit for rentals good faith effort to collect same on Seller's behalf and to tender the same to Seller upon receipt, provided that have been paid from all rents under the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding Leases collected by Purchaser on or after the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing all amounts due under the Leases at the time of collection (i.e., current rents and other amounts sums due Purchaser as the current owner and landlord) with the balance, if any, payable to Purchaser for the period from and after ClosingSeller, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and but only to the extent of any rental delinquencies owed by any such tenant amounts delinquent and actually due Seller.
(b) If the Closing shall occur before the actual amount of utilities and all other operating expenses with respect to Seller the Property for the period prior to Closing. Notwithstanding month in which the foregoing provisions Closing occurs are determined, the apportionment of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all such utilities and other rentals that are received by Purchaser following Closing operating expenses shall be retained upon the basis of a reasonable estimate by Purchaser, Seller and Seller shall have no rights with respect thereto, Purchaser of such utilities and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaserother operating expenses for such month. If, subsequent Subsequent to the Closing, when the actual amount of such utilities and other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the parties agree to adjust the proration of such utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. Seller shall not assign to Purchaser any rents deposits which Seller has with any of the utility services or companies serving the Property. Purchaser shall arrange with such services and companies to have accounts opened in Purchaser's name on the Closing Date. All public utility service in Seller's name shall be terminated as of the Closing Date. At the election of Purchaser, the present insurance coverage on the Property shall be terminated as of the Closing Date or the present insurance coverage may be assumed by Purchaser, in which event there shall be a proration of insurance premiums. There shall also be a proration of bonuses or lump-sum payments, if any, received by Seller prior to the Effective Date of this Agreement under laundry leases, cable agreements, telecommunication agreements or other income are actually received by Sellerproperty agreements. Purchaser shall also pay all sales tax, Seller shall immediately remit if any, resulting from the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file sale of any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closingpersonal property.
(bc) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the latest available tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest rates and assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, Closing when the tax rate and the assessed valuation actual amount of taxes with respect to the Property are fixed for the year in which the of Closing occursare determined, the parties agree to adjust the proration of such taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive Closing.
(cd) At the Closing, all security, pet, advance rental and other deposits made under the Leases shall be transferred by Seller to Purchaser. The agreements of Seller and Purchaser set forth in this Section 6.5 shall pay all assessmentssurvive the Closing; provided, contributionshowever, fees with respect to prorated items for which adjustment is permitted under this Section 6.5, such claim for adjustment shall be forever barred unless the party seeking an adjustment first requests the adjustment and related charges required to be paid upon transfer provides written request and proof of the Property pursuant necessity for the adjustment to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive other party within one (1) year after the Closing.
Appears in 1 contract
Proration. All rents(a) Purchaser and Seller agree that, other amounts payable by except as otherwise set forth in this Agreement, all of the tenants under items normally prorated, including those listed below, relating to the Leases Business and the Additional Leases, if any, and all other income with respect to Purchased Assets shall be prorated as of the Property for the month in which effective time of the Closing occurson the Closing Date, with Seller liable to the extent collected by Seller such items relate to any time period through the effective time of the Closing on or before the Closing Date, and real estate and personal property taxes Purchaser liable to the extent such items relate to any time period subsequent to the effective time of the Closing on the Closing Date:
(i) any rent, Taxes and other assessments items payable by or to Seller under any of the Transferred Contracts to be assigned to and assumed by Purchaser hereunder;
(ii) any permit, license or registration fees with respect to any Transferred Permit; and
(iii) charges for water, telephone, electricity and other utilities.
(b) Purchaser and Seller agree that Property Taxes with respect to the Property for Business or the year in which ownership and the Closing occurs, operations of the Purchased Assets or the Project shall be prorated as follows:
(i) Seller shall be liable for and shall pay when due all Property Taxes having a lien date in the year before the calendar year of the Closing Date.
(ii) Seller shall be liable for and shall pay when due all Property Taxes having a lien date in the same calendar year as the Closing Date; and
(iii) Property Taxes having a lien date in the calendar year following the year of the Closing Date shall be paid by Purchaser; however, such Property Taxes shall be prorated with (A) Seller being liable for that portion of the Property Taxes calculated by multiplying (1) the final determined Property Tax liability by (2) the number of days beginning with January 1 in the year of Closing up to and including the Closing Date divided by three hundred sixty-five (365) days, and (B) Purchaser being liable for that portion of the Property Taxes calculated by multiplying (1) the final determined Property Tax liability by (2) the number of days after the Closing Date up to and including December 31 in the year of Closing divided by three hundred sixty-five (365) days. Schedule 3.2(b) illustrates the operation of this Section 3.2(b). After each payment of Property Taxes referred to in this Section 3.2(b)(iii) by Purchaser, Purchaser shall notify Seller in writing of the total amount of Property Taxes paid and, as to that payment, the prorated amount for which Seller is liable. Seller shall reimburse Purchaser such prorated amount within fifteen (15) days after receipt of the notice from Purchaser.
(c) In the event that actual figures are not available at the Closing Date, with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To the extent any such real estate, personal property taxes and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentenceprorations required by Section 3.2(a) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Seller, and Seller hereby agrees to indemnify, defend and hold Purchaser harmless therefrom, which obligations of Seller expressly shall survive Closing. Utilities shall be canceled by Seller and reestablished in Purchaser’s name on the Closing Date, if possible; otherwise utilities shall be prorated at Closing. Any amounts unpaid under the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closing.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and the Additional Leases have actually been paid for the month in which the Closing occurs, the apportionment of such rents and other amounts and other income shall be calculated as follows: :
(i) if Such proration shall be based upon the Closing occurs from and after actual fee, cost or amount of the first and through and including specific item for the fifteenth day most recent preceding year (or appropriate period) for which an actual fee, cost or amount paid is available.
(ii) Upon the request of any calendar montheither Seller or Purchaser, then Purchaser shall receive a credit for rentals that have been paid from made within sixty (60) days of the date of Closing through that any actual amount previously estimated in accordance with Section 3.2(c)(i) becomes available (the last day of "Request Date"), the month in which Closing occursParties shall (A) calculate the prorated amounts using the actual available amounts (the "Actual Prorated Amounts"), and Seller shall receive a credit for all rentals payable but not yet paid for (B) calculate the period difference between the first of originally estimated prorations (the month in which Closing occurs "Estimated Prorated Amounts") and the day preceding Actual Prorated Amounts (the Closing Date so long as each such tenant has no rental delinquencies"Prorated Difference"), and (iiC) if the Party that at Closing occurs paid less than the Actual Prorated Amount due from and after such Party based upon the sixteenth and including Estimated Prorated Amounts shall pay the final day of any calendar month, then such rents actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Prorated Difference to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty other Party within sixty (3060) days following Closing, if any rents which are delinquent as of Closing are actually received by Purchaser, in good funds, all such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that are received by Purchaser following Closing shall be retained by Purchaser, and Seller shall have no rights with respect thereto, and (z) in the event that rentals are prorated pursuant to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, applied to the latest assessed valuation. The proration shall allow for any available discount. Subsequent to the Closing, when the tax rate and the assessed valuation of the Property are fixed for the year in which the Closing occurs, the parties agree to adjust the proration of taxes and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment, which obligation expressly shall survive ClosingRequest Date.
(c) Seller shall pay all assessments, contributions, fees and related charges required to be paid upon transfer of the Property pursuant to any declaration or restriction affecting the Property. The terms and provisions of this Section 6.3 shall expressly survive Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (PPL Electric Utilities Corp)
Proration. All rents, other amounts payable by the tenants under the Leases and the Additional Leases, if anyutilities, water and sewer meter charges and all other income operating expenses with respect to the Property for the month in which the Closing occurs, to the extent collected by Seller on or before the Closing Date, and real estate and personal property taxes and other assessments with respect to the Property for the tax year in which the Closing occurs, shall be prorated to as of 11:59 p.m. New York time on the day before the Closing Date, Date with Purchaser receiving the benefits and burdens of ownership on the Closing Date. To Date (based on the extent any such real estate, personal property taxes periods to which they relate and other assessments with respect to the Property are unknown or otherwise not accounted for at Closing Seller’s obligation to pay Purchaser Seller’s prorata share of said amounts (as calculated in accordance with the previous sentence) shall survive Closing. Should any rollback or similar taxes be due and payable on or after Closing with respect to the transaction contemplated hereby, such taxes shall be the sole responsibility of Sellerapplicable, and Seller hereby agrees to indemnifyregardless of when payable), defend and hold Purchaser harmless therefromprovided however, which obligations if the funds representing the balance of Seller expressly shall survive Closing. Utilities shall be canceled the Purchase Price have not been received by Seller and reestablished in Purchaser’s name Escrow Agent by 2:00 p.m. New York time on the Closing Date, if possible; otherwise utilities all prorations shall be prorated at Closing. Any amounts unpaid under recalculated as of the Contracts which Purchaser elects to assume at Closing shall be prorated between Seller and Purchaser at Closingnext business day.
(a) If the Closing shall occur before rents and all other amounts payable by the tenants under the Leases and all other income from the Additional Leases Property have actually been paid for through the month in which the Closing occursoccurs (it being agreed that Seller is entitled to all arrears in rent and other amounts payable by Tenants under the Leases), the apportionment of such rents and other amounts and other income shall be calculated as follows: (i) if upon the Closing occurs from basis of such rents, other amounts and after the first and through and including the fifteenth day of any calendar month, then Purchaser shall receive a credit for rentals that have been paid from the date of Closing through the last day of the month in which Closing occurs, and Seller shall receive a credit for all rentals payable but not yet paid for the period between the first of the month in which Closing occurs and the day preceding the Closing Date so long as each such tenant has no rental delinquencies, and (ii) if the Closing occurs from and after the sixteenth and including the final day of any calendar month, then such rents other income actually received by Seller shall be prorated with Purchaser receiving the portion of all such rentals attributable Seller. Subsequent to the period from and after Closing. In the event the proration of rentals is being made pursuant to Section 6.3(a)(ii) above, then for a period of thirty (30) days following Closing, if any rents which are delinquent as of Closing rents, other amounts and other income are actually received by Purchaser, in good funds, all Purchaser from the tenants owing such amounts shall first be applied to post-closing rents and other amounts due to Purchaser for the period from and after Closing, and the balance shall be paid by Purchaser to Seller within thirty (30) days following Purchaser’s receipt thereof, to the extent, and only to the extent of any rental delinquencies owed by any such tenant to Seller for the period prior to Closing. Notwithstanding the foregoing provisions of this Section 6.3(a), (y) in the event that rentals are prorated pursuant to Section 6.3(a)(i) above, all other rentals that such amounts shall be applied first to the month in which the Closing occurs, then to rents due to Purchaser which are received due, and the balance, up to the amount owed Seller from such Tenant, shall be immediately paid by Purchaser following to Seller. Purchaser shall make a good faith effort and attempt to collect any such rents and other amounts and other income not apportioned at the Closing for the benefit of Seller by billing tenants for such past due amounts; however, Purchaser shall not be retained required to expend any substantial funds or institute any litigation in its collection efforts. Nothing in this Agreement shall restrict Seller’s right to collect delinquent rents directly from a tenant by Purchaserany legal means, and Seller shall have no rights be entitled to keep any such rents or other damages so collected except that Seller shall not pursue tenants for any pass due rents prior to the expiration of the six month period following the Closing and Seller may not pursue any legal action against any such tenants to terminate their lease or to terminate their right to possession of their leased premises. At Closing, prepaid rents and refundable security deposits owing under any Leases (together with any interest accrued thereon only if interest is specifically required to be paid thereon under applicable law or under the terms of a specific Lease) shall, at Seller’s sole option, either be (i) transferred to Purchaser at Closing and not subject to adjustment, or (ii) adjusted by way of a credit in favor of Purchaser. With respect theretoto any security deposit which is evidenced by a letter of credit, Seller shall (i) deliver to Purchaser at Closing such original letter of credit, and (zii) execute and deliver at Closing such other instruments as the issuer of such letter of credit shall reasonably require in order to cause the event that rentals are prorated pursuant named beneficiary under such letter of credit to Section 6.3(a)(ii) above, then all rentals that are received by Purchaser more than thirty (30) days following Closing shall be retained by Purchaser. If, subsequent to the Closing, any rents or other income are actually received by Seller, Seller shall immediately remit the same, or Purchaser’s prorata share thereof calculated as aforesaid, changed to Purchaser. Seller agrees that, after the Closing, it shall not file any eviction action in an effort to collect any outstanding rents that remain owing to Seller after the Closing.
(b1) If the Closing shall occur before the tax rate or the assessed valuation of the Property is fixed for the then current year, the apportionment of taxes and assessments shall be upon the basis of the tax rate for the preceding year, including all matters appearing on the tax xxxx for such year, whether ad valorem or non-ad valorem, year applied to the latest assessed valuation, with a further reconciliation to be made when the final rate or valuation rate is received.
(2) If any certiorari or other proceedings for the reduction of real estate taxes are pending at the Closing Date with respect to the tax year in which the Closing occurs or any tax year prior thereto, Seller shall continue the prosecution of such action. The proration Any tax refund resulting from such proceeding, net of Seller’s costs of prosecuting the same, and after deducting any refunds required to be made to tenants pursuant to Leases, shall allow be apportioned between Seller and Purchaser in the same proportion that real estate taxes for any available discountsuch tax year are apportioned.
(c) If the Closing shall occur before the actual amount of utilities, water or sewer meter charges or other operating expenses with respect to the Property for the month in which the Closing occurs are determined, the apportionment of such utilities, water or sewer meter charges or other operating expenses shall be upon the basis of an estimate by Seller of such utilities, water or sewer meter charges or other operating expenses for such month. Subsequent to the Closing, when the tax rate and the assessed valuation actual amount of such utilities, water or sewer meter charges or other operating expenses with respect to the Property are fixed for the year month in which the Closing occursoccurs are determined, the parties agree to adjust the proration of taxes such utilities, water or sewer meter charges or other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment.
(d) If Leases contain obligations (“ Lease Obligations”) on the part of the tenants for: (i) CPI or similar adjustments, (ii) percentage rents, (iii) escalation payments for taxes, labor or operations, and/or (iv) other expenses including, without limitation, common area maintenance or any other operating cost pass-throughs or retroactive charges payable by tenants which obligation expressly have accrued as of the Closing Date but are not then due and payable, the amount of such Lease Obligations shall survive be prorated as of the Closing Date and paid and adjusted between Seller and Purchaser when the actual amount of such Lease Obligations with respect to the Property is determined and such Lease Obligations have been received by Purchaser from such tenant or tenants.
(e) Reletting Expenses shall be prorated as of the Closing Date in accordance with Section 8.2 hereof.
(f) Purchaser shall be credited at Closing for the amount of all unsatisfied costs and expenses which were incurred, or are to be incurred, in connection with any and all Leases executed, modified or extended by Seller prior to the Effective Date, including, without limitation, all costs and expenses for tenant-improvements (either completed or to be completed) and brokerage commissions (collectively, “Pre-Closing Leasing Costs”). Seller shall remain responsible for satisfying any Pre-Closing Leasing Costs which were not credited (but were suppose to be credited) to Purchaser at Closing.
(cg) Purchaser shall be credited at Closing for the amount of all amounts which are unsatisfied amounts for all capital contracts, contracts pertaining to works of improvement or other contracts existing prior to Closing, pertaining to the Property (regardless of when the work, services or other obligations were performed or are to be performed) (“Pre-Closing Capital Costs”). Seller shall pay all assessments, contributions, fees and related charges required remain responsible for satisfying any Pre-Closing Capital Costs which were not credited (but were suppose to be paid upon transfer of the Property pursuant credited) to any declaration or restriction affecting the PropertyPurchaser at Closing. The terms agreements of Seller and provisions of Purchaser set forth in this Section 6.3 5.3 shall expressly survive the Closing. All prorations shall be completed and finalized no later than twelve (12) months following the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
