Prorations and Closing Costs. All matters involving prorations or adjustments to be made in connection with the Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date. (a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date. (b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer. (c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer. (d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then
Appears in 4 contracts
Samples: Agreement of Sale (Brandywine Realty Trust), Agreement of Sale (Brandywine Realty Trust), Agreement of Sale (Brandywine Realty Trust)
Prorations and Closing Costs. All matters involving prorations or adjustments to be made in connection with The following provisions shall govern the Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations apportionment of income and expenses, on expenses with respect to the Project between Transferors and after the Closing Date.Transferee:
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs assessments and personal property taxes shall be prorated at Closing.
(b) Expenses under the Operating Agreements shall be prorated between Transferors and Transferee at Closing.
(c) Transferors shall arrange for final meter readings on all utilities at the Project to be taken on the day preceding Closing. Transferors shall be responsible for the payment of utilities used through the day preceding the Closing Date and Transferee shall be responsible for the payment of utilities used on or after the Closing Date. With respect to any utility for which there is no meter, the expenses for such utility shall be prorated between Transferors and Transferee at Closing based upon the most current xxxx for such utility. Any deposits for utilities shall inure to the benefit of and be deemed assigned to Transferee. Transferors and BH Investor shall cooperate to cause the transfer of utility company accounts from Transferors to Transferee.
(d) Basic rents (“Basic Rent”) and additional rent relating to escalation and pass-throughs of operating and other similar expenses (“Additional Rent”) shall be prorated between Transferors and Transferee based upon Basic Rent and Additional Rent actually collected. All prepaid Basic Rent, Additional Rent and other income from the Property shall be credited to Transferee at Closing, to the extent same is attributable to a per diem basisperiod of time after Closing. If With respect to Additional Rent which is paid based upon an estimate, with an end-of-year accounting and adjustment, after Closing Transferors and Transferee shall make any adjustments to the amount proration of such taxes items made at Closing at such time as the final tax and operating expenses numbers become available and such end-of-year accountings are completed. Any Additional Rent which may be due Transferors as a result of such re-prorations shall be paid by Transferee to Transferor if and when such Additional Rent is collected by Transferee.
(e) Basic Rent and Additional Rent which is delinquent and remains uncollected at Closing shall not known be prorated between Transferors and Transferee at Closing. At Closing, Transferors shall furnish to Transferees a schedule of delinquent Basic Rent and Additional Rent due under the Leases. Transferee shall pay Transferors’ prorata share of any delinquent Basic Rent and Additional Rent if and when collected by Transferee; provided, however, that Transferee shall have no obligation to collect or pursue the collection of same. It is understood and agreed that any Basic Rent or Additional Rent collected by Transferee after Closing shall be applied first to currently due Basic Rent and Additional Rent. Transferee shall hold all landlord’s liens in the entireties thereof to enforce the payment of rentals to which Transferee is entitled, and Transferors shall be deemed to have transferred to Transferee all of such landlord’s liens.
(f) All security deposits and other deposits payable to tenants under the Leases shall be credited to Transferee at Closing.
(g) The prorations described in this Section 4.2 shall be made as of 12:01 a.m. on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating if Transferee were vested with title to the Property and allocable to during the period prior to the entire day upon which Closing Date occurs. All prorations described in this Section 4.2 shall be determined and effected by increasing or decreasing, as the case may be, the amount of cash to be paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall Transferee to the extent necessary enter into an agreement to such effect Transferor at Closing. Seller shall attempt Transferors and Transferee agree to have all utility meters read as of adjust between themselves after Closing any errors or omissions in the Closing Date. Seller shall further attempt to obtain from the provider of sameprorations made at Closing; provided, all other service statements and bills of account adjusted as of the Closing Date. Seller however, that such prorations shall be entitled deemed final and not subject to refunds of all deposits, further post Closing adjustments if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing no such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of adjustments have been requested within one (1) year after the Closing Date.
(h) Transferors shall pay (a) the fees of any counsel representing it in connection with this transaction; (b) Special assessments which have been filed as a lien against any the basic premium for the Title Policy; (c) the cost of the Real Property on or before Survey; and (d) one-half (1/2) of any escrow fee which may be charged by the Closing Date Title Company. BH Investor shall pay (x) the cost of any endorsement to the Title Policy desired by BH Investor (y) the fees of any counsel representing BH Investor in connection with this transaction; and are not payable in installments (z) one-half (1/2) of any escrow fees charged by the Title Company. All other costs and expenses incident to this transaction and the closing thereof shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenparty incurring same
Appears in 2 contracts
Samples: Contribution Agreement (Behringer Harvard Opportunity REIT I, Inc.), Contribution Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Prorations and Closing Costs. All matters involving (a) Seller and Buyer agree to adjust, as of 11:59 p.m. Pacific Time on the day prior to the Closing Date, the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments (subject to the terms of Section 9.5(c) below), utility bills (except as hereinafter provided), and collected Rents and other income from the Property (subject to the terms of Section 9.5(b) below). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and through the day prior to the Closing Date, and Xxxxx will be charged and credited for all of the Proration Items relating to the period from and after the Closing Date. Such preliminary estimated Closing prorations or adjustments shall be set forth on a preliminary closing statement to be made in connection with prepared by Xxxxxx and submitted to Buyer for Xxxxx’s approval prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Xxxxx and not specifically Seller and delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for in any other provision of this Agreement below. The preliminary proration shall be adjusted as provided below. Except as otherwise set forth herein, all items paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be prorated pursuant to this Paragraph shall be prorated delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated made at Closing on the basis of the most recently ascertainable tax xxxxbest evidence then available; thereafter, when actual figures are received (not to exceed one hundred eighty (180) days after Closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. There shall No prorations will be no proration of made in relation to insurance premiums, and Seller's insurance premiums or assignment of Seller's ’s insurance policies and Seller shall will not be entitled assigned to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may Final readings and final xxxxxxxx for utilities will be pending, but which have not become a lien on the Real Property made if possible as of the Closing Date, in which event no proration will be made at Closing with respect to utility bills (and special assessments which are filed as Seller shall be responsible for xxxxxxxx prior to Closing and Buyer shall be responsible for xxxxxxxx on and after Closing). Seller will be entitled to all deposits presently in effect with the utility providers (and shall not receive a lien after credit at Closing for such deposits), and Buyer will be obligated to make its own arrangements for deposits with the utility providers. The provisions of this Section 9.5 will survive the Closing Date, shall be assumed and paid by Buyerfor twelve (12) months.
(cb) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for will receive a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent credit on the Closing Date, rents received from such tenant ninety Statement for the prorated amount (90) days after as of 11:59 p.m. Pacific Time on the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears day prior to the Closing Date; ) of all Rent previously paid to or collected by Seller and thenattributable to any period following Closing. Rents are “Delinquent” when they were due prior to the Closing Date, and payment thereof has not been made on or before the Closing Date. Delinquent Rents will not be prorated. All Rents collected by Seller after the Closing Date will be promptly delivered to Buyer. All Rents collected by Xxxxx from and after Closing from each Tenant will be applied, first to current amounts owed by such Tenant to Buyer, then to any Delinquent Rents owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller by Xxxxx. Buyer shall bill Tenants who owe Delinquent Rents for periods prior to the Closing Date on a monthly basis for three (3) consecutive months following the Closing Date but shall have no obligation to enforce collection of any such Delinquent Rents from or against any Tenant. Seller shall have the right to sue to collect Delinquent Rents but may not seek to evict any Tenant or terminate any Lease. If Seller pursues such action, Seller shall indemnify, defend and hold harmless Buyer from and against any and all claims, losses, expenses, costs and (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or related to such action.
Appears in 2 contracts
Samples: Sale Agreement, Agreement of Sale and Purchase
Prorations and Closing Costs. All matters involving prorations or adjustments to At Closing, the following items shall be made in connection with prorated between Purchaser and Seller as of 12:01 a.m. on the Closing Date and not specifically provided for in any other provision of this Agreement shall be adjusted against the Purchase Price and payable in certified funds at the Closing:
11.1 Real and personal property taxes which are due as provided belowof the Closing, shall be paid by Seller or allowed as a credit against the Purchase Price. Except All unpaid real estate taxes which were a lien in 1998 and will be due and payable in 1999 will be charged to Seller and allowed as otherwise set forth herein, all items to be prorated pursuant to this Paragraph a credit against the Purchase Price. All other real estate taxes and other assessments which will become a lien in 1999 against the Property but are not due and payable until 2000 shall be prorated as of the Closing Date, and if the amount of taxes due for 1999 but not payable until 2000 has not yet been fixed by Closing, such taxes shall be prorated based upon the most recent available mill levy applied to the latest assessed valuations and any assessments, special or general. All other real estate and personal property taxes, charges and assessments of municipal or other improvements payable thereafter shall be paid by Purchaser.
11.2 Seller and Purchaser shall cooperate to cause all utility suppliers furnishing electrical, gas, water, or other utility services to the Property to read all utility meters on the Closing Date and to xxxx Seller separately for all such charges. Purchaser shall be responsible for making its own arrangements with Buyer respect to future xxxxxxxx and deposits. In the event any such utility supplier refuses to read and xxxx any such utilities, then such utility charges shall be treated as the owner of the Property, for purposes of prorations of income and expenses, on and prorated at or after the Closing Datein accordance with this Section 11 based upon the xxxx for the preceding billing period.
11.3 Any insurance policies held in Seller's name that are not assumed by Purchaser shall be cancelled as of the Closing Date. Premiums on all insurance policies applicable to the Property that are assumed by Purchaser shall pro rated in accordance with this Section 11.
11.4 The portion of current rents and prepaid rents, additional rents, reimbursements and/or other sums payable by tenants under any leases or subleases relating to the Property (a) Real estate taxes and all other ad valorem taxes"Leases"), if any, with respect collected by Seller prior to the Real Property for Closing Date which are allocable to the applicable fiscal or calendar year in which period commencing with and following the Closing occurs Date shall be prorated on a per diem basispaid to Purchaser at Closing. If Notwithstanding the amount of such taxes is not known on foregoing, if any past-due rents, additional rents, reimbursements and/or other sums (collectively, "Rentals") are owing by tenants under the Leases at the Closing Date, taxes will all such Rentals shall be prorated on the basis of the most recently ascertainable tax xxxx. There time period for which they were due, and Purchaser shall be no proration within ten (10) days after receipt and clearance of Seller's insurance premiums or assignment of Seller's insurance policies and checks pay to Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating Rentals which pertain to the Property and allocable to the time period prior to the Closing Date shall be determined Closing.
11.5 All charges and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as revenues arising out of the Closing Date. Seller shall further attempt service contracts which Purchaser has not elected to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, terminate shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any Closing. All charges and revenues arising out of the Real Property on or before the Closing Date and are not payable in installments service contracts which Purchaser has elected to terminate shall be paid by SellerSeller as long as Purchaser notifies Seller not less than 35 days prior to Closing which contracts will be terminated.
11.6 Any prepaid expenses relating to the Property. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments Seller shall be adjusted based upon the installment payment responsible for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on (i) the owner's title insurance policies policy; (ii) updating the Survey; (iii) one-half of any escrow fees and real estate transfer, stamp or documentary taxes; (iv) any sales or use taxes relating to the cost transfer of obtaining personal property to the Purchaser; and (v) all fees and costs (except Purchaser's attorneys' fees) related to assumption of the Mortgage Debt by Purchaser. Purchaser shall be responsible for: (i) one-half of any surveysescrow fees and real estate transfer, stamp or documentary taxes; (ii) recording the special warranty deed from Seller to Purchaser; and (iii) mortgagee's title insurance, if desired by Buyerany. Buyer agrees to Seller and Purchaser shall each pay the expense of the legal fees and disbursements of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely respective counsel and any inspecting architects, engineering or other consultants hired by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basissuch party. In addition, any Seller shall deliver to Purchaser all security deposits held previously collected by Seller for any Lease, together with the interest due thereonfrom tenants, if any, and any prepaid rent collected by Seller. Purchaser and if Seller agree to calculate all prorations required under the terms of the Lease this Section 11 with respect to those items which cannot be accurately or as required by applicable law, shall either be credited or transferred to Buyer finally determined at Closing at Seller's optionand to make the applicable payments resulting from those calculations within 30 days after Closing. Each of these calculations shall be apportioned retroactive to the Effective Date. If any tenant is in arrears in errors or omissions are made regarding adjustments and prorations the payment of rent or additional rent on parties shall make appropriate corrections promptly upon the discovery thereof. If any estimations are made at the Closing Dateregarding adjustments or prorations, rents received from such tenant ninety the parties shall make the appropriate corrections promptly when accurate information becomes available. Any corrected adjustment or proration shall be paid in cash to the appropriate party within fifteen (9015) days of the correction or adjustment. Notwithstanding anything to the contrary in this Section 11, any right to a correction or adjustment shall terminate one (1) year after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Amerivest Properties Inc), Purchase and Sale Agreement (Amerivest Properties Inc)
Prorations and Closing Costs. All matters involving prorations or adjustments 10.6.1 Property Seller and Buyer agree to be made in connection with adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Proration Time”), for the proration items listed in this Section 10.6 (collectively, the “Proration Items”):
(a) All taxes and not specifically provided assessments on the Property for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of prior years and all current year taxes and assessments that are due and payable on or before the Closing Dateshall have been paid by Seller on or before the Closing, subject to proration with Buyer to be treated as responsible for taxes and assessments relating to the owner of the Property, for purposes of prorations of income and expenses, on and period after the Closing Date.
(a) Real estate Proration Time. Accrued but not yet payable general real estate, personal property and ad valorem taxes and all other ad valorem taxes, if any, with respect to the Real Property assessments for the applicable fiscal or calendar current year in which the Closing occurs only shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There recent available information, as adjusted by any known charges relating to the period during which the Closing occurs.
(b) All charges for gas, electricity, water, telephone, sewer and other utilities shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies prorated as of the Closing DateProration Time, based on meter reading (if available) taken on the day prior to Closing, or on the basis of the most recent available information, as reasonably adjusted to account for known variances from usage that would not otherwise be reflected in such information. Buyer shall be obligated (at transfer all utilities to its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, name or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of Premier’s name on the Closing Date. Seller shall further attempt reasonably cooperate with Buyer to obtain from transfer the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller utilities into Buyer’s or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations Premier’s name in connection with the Property, to Closing.
(c) Any income or expense items under the extent the same are intended to be assumed hereunder, Contracts shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by BuyerProration Time.
(d) Any baseAll periodic membership dues or other periodic membership charges (other than membership initiation fees, minimum or similar rents under the Leases which shall not be prorated) that have been collected by Property Seller shall be prorated as of the Proration Time.
(e) Buyer shall receive a credit to the Purchase Price in the amount of all deposits for a rental period or portion thereof from Bookings to take place on or after the Closing.
(f) Buyer shall receive a credit to the Purchase Price for fifty percent (50%) for all merchandise gift certificates and rain checks redeemable at the Golf Club and sold or issued before the Closing Date but neither redeemed nor expired as of the Closing.
(g) Buyer shall pay to Property Seller at Closing an amount for Seller’s Receivables as provided below (the “Seller’s Receivables Amount”). Seller’s Receivables which are sixty (60) days or less old from the initial billing date shall be credited paid at one hundred percent (100%). Seller’s Receivables which are more than sixty (60) days but less than one hundred twenty (120) days old from the initial billing date shall be paid at fifty percent (50%). Seller’s Receivables which are one hundred twenty (120) days old or greater shall be paid at zero percent (0%). The term “Seller’s Receivables” means: (1) delinquent or uncollected membership dues and charges or fees, golf cart fees, handicap fees, driving range fees, golf club storage fees, locker fees and trail fees with respect to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms Golf Clubs as of the Lease or as required by applicable lawProration Time; (2) unpaid amounts with respect to tournaments, shall either be credited or transferred to Buyer banquets, meetings and other functions held at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears Golf Clubs prior to the Closing DateProration Time; and then(3) any other receivables of Property Seller with respect to the Golf Clubs which, as of the Proration Time, are payable or past due.
Appears in 2 contracts
Samples: Agreement of Sale and Purchase, Agreement of Sale and Purchase (CNL Income Properties Inc)
Prorations and Closing Costs. All matters involving prorations or adjustments (a) Subject to be made in connection with this Section 10.4 below, all real and personal property taxes and assessments, including, without limitation, supplemental taxes, if any; water, sewer and utility charges (calculated on the Closing basis of the period covered); and not specifically provided for in any other provision expenses normal to the operation and maintenance of this Agreement the Property, shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations of income and expensesClosing, on and after the Closing Date.
(a) Real estate basis of a 360 day year. If, prior to the Closing, Seller has commenced any contest or filed any objection with any applicable taxing authority as to real property taxes and all other ad valorem taxes, if any, with respect assessments attributable to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on period prior to the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled have the right to cancel all of its existing policies as of continue such proceeding following the Closing Date. Buyer shall be obligated (at its own election) and any refunds attributable to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined paid to and paid retained by Seller, and Buyer shall have no interest therein. To the extent that Buyer is required by law to participate in any such tax contest, Buyer agrees to reasonably cooperate with Seller before in such proceeding. Any expense to be prorated as provided above which cannot be ascertained with certainty as of the Closing Date shall be prorated on the basis of the parties’ reasonable estimates of such amounts and shall be the subject of a final proration as soon thereafter as the precise amounts can be ascertained, but in no event later than one hundred eighty (180) days after the Closing. A statement setting forth such agreed proration shall be delivered to the Title Company, provided the Title Company shall not be required to calculate any such prorations. Seller and Buyer shall each cooperate with the other diligently and promptly to correct any errors in computations or estimates under this Section 10.4(a) and shall promptly pay to the party entitled thereto any refund, credit or other payment necessary to comply with this Section 10.4(a). This Section 10.4(a) shall survive the Closing. Either party owing the other party a sum of money based on adjustments made to prorations after the Closing shall promptly pay that sum to the other party, together with interest thereon at the rate of ten percent (10%) per annum from the date of demand for payment to the date of payment, if possible, or payment is not made within ten (10) days after demand therefor.
(b) Seller shall pay all County transfer taxes associated with the conveyance of the Real Property from Seller to Buyer. Seller and Buyer shall split equally all City conveyance taxes to be paid promptly thereafter by in connection with the conveyance of the Real Property from Seller or adjusted between to Buyer. Seller shall pay the portion of the premium for Buyer’s Title Policy allocable to an ALTA standard owner’s policy of title insurance. Buyer shall pay the cost of Buyer’s endorsements, if any, and Seller immediately after the same have been determinedexcess cost of the ALTA extended coverage owner’s policy of title insurance. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have split equally all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations escrow fees incurred in connection with the Property, consummation of the sale of the Property by Seller to the extent the same are intended to be assumed hereunder, Buyer. All other customary closing costs incurred shall be prorated allocated to Buyer and Seller in accordance with the custom in Santa Xxxxx County. Except as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date provided in Section 12.5 and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pendingSection 12.6 below, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller each party shall pay the cost of State and County transfer taxes or stamps imposed its own attorneys’ fees incurred in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies this Agreement and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyertransaction described herein.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then
Appears in 1 contract
Prorations and Closing Costs. All matters involving prorations or prorations, adjustments to and final readings shall be made in connection with as of 11:59 pm of the day preceding the Closing Date, unless otherwise mutually agreed to by the parties (the "Adjustment Date"), by the Title Company based on information provided by the parties, as follows:
(a) Payments under any Project Contracts or Personal Property Leases and not specifically provided fees for in any other provision of this Agreement transferable licenses and permits which are assigned to Buyer, shall be adjusted prorated.
(b) General real estate taxes shall be prorated, using for such purpose the rate and valuation shown on the last available tax duplicate, but subject to further adjustment as provided below. Except If any real estate taxes prorated at Closing or assessments paid by Seller (as otherwise set forth hereinbelow) are later increased for any reason whatsoever, all items including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being greater than those shown on the tax duplicate available at Closing or because of any additions or corrections to be prorated pursuant to this Paragraph shall be prorated as the tax duplicate assessed by reason of the Closing Date, with Buyer to be treated as the owner Buyer's acquisition of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and then Seller shall be entitled to cancel promptly pay all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and such increases allocable to the period prior to the Closing Date and Seller shall be determined protect, indemnify, defend, and hold Buyer harmless from and against all such real estate tax and assessment increases, which obligations on the part of the Seller shall survive the Closing. If any real estate taxes prorated at Closing or assessments paid by Seller (as set forth below) are later decreased for any reason whatsoever, including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being less than those shown on the tax duplicate available at Closing or because of any corrections to the tax duplicate assessed by reason of Buyer's acquisition of the Property or because of any post-Closing reduction in, or refund or rebate of, any taxes relating wholly or in part to a period before the Closing, if possiblethen Buyer shall promptly pay to Seller the savings allocable to the period prior to the Closing (less any costs incurred by Buyer to any unaffiliated third parties in connection with obtaining the reduction of such tax bill), or xhich obligation shall survive the Closing. Any special assessments that are a lien on the Property as of the date of this Agreement shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately without proration. Any special assessments that become a lien on the Property after the same have been determined. Buyer and date of this Agreement shall be paid as follows: Seller shall pay all installments that are due and payable prior to the extent necessary enter into an agreement Closing Date and Buyer shall pay all installments that become due and payable on or after the Closing Date.
(c) Collected rents shall be prorated based upon the total rent roll payable for the month in which Closing occurs. In the event that Buyer receives current rent from any tenants for the month in which the Closing occurs, then Buyer shall deliver to Seller (outside of escrow) the portion of such effect at Closingcurrent rents attributable to periods prior to the Adjustment Date. Seller shall attempt to have all utility meters read Additionally, in the event that any tenant, who as of the Closing Date. Seller shall further attempt is delinquent in the rental payments due Seller, delivers to obtain from the provider of same, all other service statements and bills of account adjusted as Buyer a rent check in an amount in excess of the Closing Date. Seller rent due Buyer for the month for which such check is delivered, Buyer shall be entitled allocate such excess first to refunds of all depositspay reasonable outside collection costs, if any, paid by to unaffiliated third parties, then to pay rents which become due after Closing, then pay remaining funds to Seller or Seller's predecessor-in-interest for any rents delinquent prior to Closing and held by entities providing were due as of the date such servicepayment was received; provided, orhowever, at in no event shall Buyer be obligated to collect delinquent rents on Seller's option, behalf.
(d) Final readings and final billxxxx xxx utilities shall be made as of the Adjustment Date. Seller shall transfer pay all outstanding amounts due as of Seller's rightsuch time, title and interest in and to or such deposits amounts shall be credited to Buyer at Closing Closing. If final readings and shall receive a full credit for billxxxx xxxnot be obtained prior to Closing, the amount of such deposits. All Contracts and other obligations in connection with the Propertyfinal bills, to the extent the same are intended to be assumed hereunderwhen received, shall be prorated as of the Closing DateAdjustment Date and the Title Company shall hold in escrow an amount equal to 125% of the reasonably anticipated amount of such billxxxx, xxsed upon the most recent available billxxxx xxx similar periods until the Title Company shall have received notice of payment of such bills, at which time any remaining amount being withheld for such purpose shall be distributed to the Seller.
(be) Special assessments Buyer shall receive a credit at Closing for all deposits, including security deposits, under the Tenant Leases which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal delivered or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyerassigned to Buyer at Closing.
(cf) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with this transaction the recordation following closing costs: (i) any state or local real or personal property transfer taxes, documentary stamps, fees or other charges relating to the transfer of the Deeds for the Real PropertyProperty and (ii) one-half of any escrow charges. Buyer shall pay in connection with this transaction the expense following closing costs: (i) all recording fees, (ii) the costs of the title searchesTitle Policy and all endorsements thereto and (iii) one-half of any escrow charges. Each party shall pay its own attorneys' fees. Each party shall pay its own attorneys' fees. All closing costs allocable to Seller, title premiums and including, without limitation, any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired prorations to which Buyer may be entitled by Buyer. Buyer agrees to pay the expense reason of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date foregoing shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with against the interest due thereon, if any and if required under the terms balance of the Lease or as required by applicable law, shall either Appraised Value to be credited or transferred to Buyer paid at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then.
Appears in 1 contract
Samples: Purchase Agreement (Associated Estates Realty Corp)
Prorations and Closing Costs. All matters involving prorations or adjustments 9.5.1 (a) Seller and Buyer agree to be made in connection with adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"): real estate and not specifically provided for in any other provision personal property taxes and assessments (subject to the terms of this Agreement shall be adjusted SECTION 9.5.1(B) below), utility bills (except as provided hereinafter provided), collected Rents (subject to the terms of SECTION 9.5.1(B) below. Except as otherwise set forth herein, all items ) and Operating Expenses (subject to be prorated pursuant to this Paragraph shall be prorated as the terms of the Closing Date, with Buyer to be treated as SECTION 9.5.1(C) below) payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Buyer will be charged and credited for all of the Proration Items relating to the period after the Proration Time. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Buyer for Buyer's approval prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Buyer and Seller and delivered to the Escrow Agent for purposes of prorations of income and expenses, on and after making the preliminary proration adjustment at Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect subject to the Real Property final cash settlement provided for the applicable fiscal or calendar year in which the Closing occurs below. The preliminary proration shall be prorated on paid at Closing by Buyer to Seller (if the preliminary prorations result in a per diem basisnet credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the amount actual amounts of such taxes is the Proration Items are not known on as of the Closing DateProration Time, taxes the prorations will be prorated made at Closing on the basis of the most recently ascertainable tax xxxxbest evidence then available; thereafter, when actual figures are received (not to exceed 120 days after closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. There shall No prorations will be no proration of Seller's made in relation to insurance premiums or assignment of premiums, and Seller's insurance policies will not be assigned to Buyer. Final readings and final xxxxxxxx for utilities will be made if possible as of the Proration Time, in which event no proration will be made at Closing with respect to utility bills. Seller shall will be entitled to cancel all deposits presently in effect with the utility providers, and Buyer will be obligated to make its own arrangements for deposits with the utility providers. The provisions of its existing policies as of this SECTION 9.5.1(A) will survive the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety twelve (9012) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenmonths.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Behringer Harvard Short Term Opportunity Fund I Lp)
Prorations and Closing Costs. All matters involving prorations or adjustments to be made in connection with the Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph Real estate taxes shall be prorated as of the Closing Date, with Buyer to be treated as Date based on the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and current tax xxxx so that Seller bears all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable applicable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer bears all such taxes applicable to the period on and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as If the amount of the Closing Date. Seller shall further attempt to obtain from ad valorem taxes for the provider current year are not available, the amount of same, all other service statements and bills of account adjusted as of ad valorem taxes for the Closing Dateprior year will be used. Seller shall be entitled responsible for the payment of the premium attributable to refunds the Title Policy to the extent applicable to the standard coverage portion, and Buyer shall be responsible for the payment of all depositsthe premium attributable to the extended coverage portion of the Title Policy in the event the same is issued as an Extended Policy and any endorsements desired by Buyer (unless the endorsement is required in order for Seller to remove an exception to which Buyer has given timely objection and which Seller has agreed to remove, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's optionin which case, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for bear the amount cost of such depositsendorsement). All Contracts and other obligations in connection with Any costs incurred by Buyer to preserve the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing DateDate (including, but not limited to any repairs, mitigation measures and security costs) shall be Seller’s costs and submitted to Escrow Holder to be offset against the Purchase Price. Except as may be expressly set forth in this Agreement to the contrary, Seller shall pay all recording fees and documentary transfer taxes, Buyer and Seller shall each pay one-half of Escrow Holder’s fee, and special assessments which are filed as a lien after all other closing costs shall be divided and borne in accordance with common escrow practices in Tunica County, Mississippi. Prior to the Closing Date, Escrow Holder shall prepare and deliver to Buyer and Seller for review and approval estimated closing statements setting forth the foregoing prorations and allocations of closing costs. Notwithstanding the foregoing or anything to the contrary herein, except to the extent such items are liens against the Property or otherwise obligations relating to Seller or the Property, which shall remain Seller’s obligations and to the extent recorded or filed and known at Closing, shall be assumed and paid through escrow as Seller costs, any abatements, concessions, incentives or reimbursements relating to the Property or its operations, received by Buyer.
(c) Seller , including but not limited to any such incentives from the State of Mississippi and Tunica County, shall pay the cost of State be Buyer’s property and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all benefit of Buyer's Due Diligence Activities (as defined below) ; to the extent any such incentives are received by Seller after the Effective Date, such incentives shall be borne solely by Buyer.
(d) Any base, minimum paid over to or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited otherwise reimbursed to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenBuyer’s property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mullen Automotive Inc.)
Prorations and Closing Costs. All matters involving 9.6.1 (a) Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date, the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), collected Rents (subject to the terms of 9.6.1(b) below) and Operating Expenses (subject to the terms of 9.6,1(c) below) payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to but not including the Closing Date, and Buyer will be charged and credited for all of the Proration Items relating to the period from and after the Closing Date, such that Buyer shall be deemed to own the Property and therefore be entitled to any revenue and be responsible for any expenses of the Property for the entire day upon which the Closing occurs. Such preliminary estimated Closing prorations shall be prepared by Seller and submitted to the Title Company and Buyer, for Buyer’s approval, no less than three (3) business days prior to the Closing Date (the “Closing Proration Statement”). The Closing Proration Statement, once agreed upon by Buyer and Seller shall be used by the Title Company in preparing the settlement statement to be executed and delivered by Buyer and Seller at Closing (the “Settlement Statement”) and making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or adjustments by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer), in each case by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of three (3) business days prior to the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received (except as provided in Section 9.6.1(c), not to exceed 120 days after Closing), reprorations will be made on the basis of the actual figures, and a final cash settlement shall be made between Seller and Buyer. The Title Company shall prepare and deliver the Settlement Statement to Buyer and Seller for approval no later than two (2) business days prior to the Closing Date. No prorations will be made in connection with the Closing relation to insurance premiums, and Seller’s insurance policies will not specifically provided be assigned to Buyer. Final readings and final xxxxxxxx for in any other provision of this Agreement shall utilities will be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated made if possible as of the Closing Date, with Buyer to in which event no proration will be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after made at the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basisutility bills. If the amount of such taxes is not known on the Closing Date, taxes Seller will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel recover from the utility providers all deposits presently in effect with the utility providers, and Buyer will be obligated to make its own arrangements for deposits with the utility providers. Except as provided in Section 9.6.1(c), the provisions of its existing policies as of this Section 9.6.1(a) will survive the Closing Date. Buyer shall be obligated for twelve (at its own election12) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Datemonths.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then
Appears in 1 contract
Prorations and Closing Costs. All matters involving prorations or adjustments (a) (i) Seller and Buyer agree to be made in connection with adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "Proration Time"), the following (collectively, the "Proration Items"): real estate and not specifically provided for in any other provision personal property taxes and assessments (subject to the terms of this Agreement shall be adjusted Section 9.5(b)), utility bills (except as provided below. Except as otherwise set forth hereinhereinafter provided), all items collected Rents (subject to be prorated pursuant the terms of Section 9.5(b)) and Operating Expenses (subject to this Paragraph shall be prorated as the terms of the Closing Date, with Buyer to be treated as Section 9.5(c)) payable by the owner of the Property. Seller will be charged and credited for the amounts of all the Proration Items relating to the period up to and including the Proration Time, and Buyer will be charged and credited for all of the Proration Items relating to the period after the Proration Time. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Buyer for Buyer's approval prior to the Closing Date (the "Closing Statement"). The Closing Statement, once agreed upon, shall be signed by Buyer and Seller and delivered to the Escrow Agent for purposes of prorations of income and expenses, on and after making the preliminary proration adjustment at Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect subject to the Real Property final cash settlement provided for the applicable fiscal or calendar year in which the Closing occurs below. The preliminary proration shall be prorated on paid at Closing by Buyer to Seller (if the preliminary prorations result in a per diem basisnet credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the amount actual amounts of such taxes is the Proration Items are not known on as of the Closing DateProration Time, taxes the prorations will be prorated made at Closing on the basis of the most recently ascertainable tax xxxxbest evidence then available; thereafter, when actual figures are received (not to exceed 120 days after closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. There shall No prorations will be no proration of Seller's made in relation to insurance premiums or assignment of premiums, and Seller's insurance policies will not be assigned to Buyer. Final readings and final xxxxxxxx for utilities will be made if possible as of the Proration Time, in which event no proration will be made at Closing with respect to utility bills. Seller shall will be entitled to cancel all of its existing policies as of deposits presently in effect with the Closing Date. utility providers, and Buyer shall will be obligated (at to make its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such arrangements for deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Dateutility providers.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then
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Prorations and Closing Costs. All matters involving 9.6.1 (a) Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date, the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), collected Rents (subject to the terms of 9.6.1(b) below) and Operating Expenses (subject to the terms of 9.6.1(c) below) payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to but not including the Closing Date, and Buyer will be charged and credited for all of the Proration Items relating to the period from and after the Closing Date, such that Buyer shall be deemed to own the Property and therefore be entitled to any revenue and be responsible for any expenses of the Property for the entire day upon which the Closing occurs. Such preliminary estimated Closing prorations or adjustments shall be prepared by Seller and submitted to the Title Company and Buyer, for Buyer’s approval, no less than three (3) business days prior to the Closing Date (the “Closing Proration Statement”). The Closing Proration Statement, once agreed upon by Buyer and Seller shall be used by the Title Company in preparing the settlement statement to be made executed and delivered by Buyer and Seller at Closing (the “Settlement Statement”) and making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Buyer to Seller (if the preliminary prorations result in connection with a net credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer), in each case by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of three (3) business days prior to the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received (except as provided in Section 9.6.1(c), not to exceed 120 days after Closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement shall be made between Seller and Buyer. The Title Company shall prepare and deliver the Settlement
(a) will survive the Closing for twelve (12) months.
(b) Buyer will receive a credit on the Closing Statement for the prorated amount (as of the Closing Date) of all Rents (including any prepaid Rents) previously paid to or collected by Seller and attributable to any period following Closing. Rents are “Delinquent” when they were due prior to the Closing Date, and payment thereof has not specifically provided been made on or before the Closing Date. Delinquent Rents will not be prorated, except Seller will receive a credit for any Rents paid in arrears by any other provision Tenants which are agencies, departments; or instrumentalities of the United States government as if such Rents had been collected in advance, All sums collected by Buyer or Seller, for a period of ninety (90) days from and after Closing, from each Tenant will be applied first to any Delinquent Rent owed by such Tenant to Buyer for the month in which Closing occurred, then to any Delinquent Rent owed to Seller by such tenant for the month in which Closing occurred, then by such Tenant to Buyer for any Delinquent Rent for the period after the month in which the Closing occurred, and then applied to Delinquent Rents for periods prior to the month in which Closing occurred owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller. Buyer shall use commercially reasonable efforts to collect any sums due Seller from Tenants under the Leases, but shall not be required to exercise any remedies available under the Leases for such purpose. From and after the Closing Date, Buyer shall have the exclusive right to collect any sums due from Tenants under the Leases and Seller hereby relinquishes the right to pursue any Tenant under the Leases for any sums due Seller for periods attributable to such Seller’s ownership of the Property. Any amounts received by Seller from Tenants on and after the Closing Date shall promptly be forwarded by Seller to Buyer. Seller shall not have the right to commence or pursue any legal proceedings against any Tenant or any guarantor of any Lease in effect on or after the Closing Date. The provisions of this Agreement shall Section 9.6.1(b) will survive the Closing for one (1) year.
(c) Seller will prepare a reconciliation as of the Closing Date of the amounts of all xxxxxxxx and charges for Operating Expenses to the Property. Such reconciliation will be adjusted as provided belowdelivered to Buyer at least three (3) business days prior to Closing for review, and the parties will reach agreement thereon prior to the Closing Date. Except as otherwise set forth hereinIf more amounts have been expended for Operating Expenses than have been collected from Tenants for Operating Expenses, all items Buyer will pay such difference to be prorated pursuant to this Paragraph shall be prorated Seller at Closing. If, as of the Closing Date, more amounts have been collected from Tenants for Operating Expenses than have been expended for Operating Expenses, Seller will pay to Buyer at closing as a credit against the Purchase Price such excess collected amount. A final reconciliation of such amount shall be made not later than March 31, 2012, and the parties will reach agreement therein, and a final cash settlement shall be made between Seller and Buyer within ten (10) days after such reconciliation. Buyer and Seller agree that such final reconciliation of Operating Expenses will fully relieve Seller from any responsibility to Tenants or Buyer for such matters. In this regard, Buyer will be solely responsible, from and after Closing, for collecting from Tenants the amount of any outstanding Operating Expenses for periods before and after Closing, and where appropriate, reimbursing Tenants for amounts attributable to Operating Expenses, as may be necessary based on annual reconciliations for Operating Expenses. The provisions of this Section 9.6.1(c) shall survive Closing for one (1) year.
(d) Seller shall pay all leasing commissions which are or before Closing become due and payable under any leasing commission or agency agreement which Seller has entered into, with respect to any Lease made prior to Closing. Buyer shall pay, and shall hold harmless, indemnify and defend Seller from and against any claims or liability for, leasing commissions which become due and payable after Closing (including, without limitation, any commissions which become due and payable under any such agreement by reason of the extension, renewal or expansion after Closing of any Lease existing as of Closing). The provisions of this Section 9.6.1(c) shall survive Closing for a period of one year.
(e) All Security Deposits listed on the Rent Roll as of the Closing Date shall be transferred to Buyer at Closing or Buyer shall receive a credit against the Purchase Price in the amount of the Security Deposits. In the event that any Security Deposits are in the form of letters of credit, at Closing, Seller will assign its interest in such letters of credit to Buyer and, following Closing, Seller will reasonably cooperate with Buyer, at no cost to Seller, in causing Buyer to be treated substituted for Seller as beneficiary under such letters of credit. Buyer will not receive a credit against the owner Purchase Price for any Security Deposits in the form of the Property, for purposes letters of prorations of income and expenses, on and after the Closing Datecredit.
(a) Real estate Seller shall pay one-half (1/2) of any state, county, and city documentary stamps, transfer, or recordation taxes applicable to the conveyance of title to the Property. Buyer shall pay one-half (1/2) of any state, county, and city documentary stamps, transfer, or recordation taxes applicable to the conveyance of title to the Property, the escrow fee, all of the costs of the Title Policy including the cost of any endorsements, the cost of any survey (or updated survey) or appraisals, all recording fees, any personal property sales tax applicable to the purchase of the Property and any other expenses of the escrow for the sale of the Property, and all other ad valorem of the recordation and transfer taxes, if any, associated with respect the recording of any financing instruments associated with Buyer’s financing of the purchase of the Property. Buyer shall reimburse Seller at Closing (or, if not previously paid by Seller shall be responsible for payment at Closing of) the cost of the Survey and any update thereto order by Seller or Buyer.
(b) Seller intends to claim an exemption from Seller’s one-half (1/2) of the transfer and recordation taxes due and owing on the conveyance of title to the Real Property. Notwithstanding the provisions of Section 9.6.2(a) above, in the event Seller is found to be exempt from its one-half (1/2) of any such transfer and recordation tax, Buyer shall pay the entire amount of such transfer and recordation taxes due and owing upon the sale of the Property after taking into account any such exemption, but in no event shall Buyer be liable for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If more than one-half (1/2) of the amount of such taxes is not known which would otherwise be payable on the Closing Date, taxes will be prorated on transaction in the basis absence of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating exemption applicable to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Seller. At Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations taxes that would otherwise be payable by Seller pursuant to Section 9.6.2(a) on the transaction in connection with the Property, to the extent the same are intended to be assumed hereunder, absence of any exemption shall be prorated as of held back from the Closing Date.
(b) Special assessments which sale proceeds and retained by the Escrow Agent until the Deed shall have been filed as a lien against any of accepted for recording, If the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in recorder’s office requires the payment of rent or additional rent on any amount of transfer and recordation taxes that would be due and payable absent any exemption, the Closing Date, rents received from such tenant ninety (90) days after the Closing Date Escrow Agent shall be applied in authorized to pay Seller’s share thereof out of the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenamount held back.
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Prorations and Closing Costs. All matters involving prorations or prorations, adjustments to and final readings shall be made in connection with as of 11:59 pm of the day preceding the Closing Date, unless otherwise mutually agreed to by the parties (the "Adjustment Date"), by the Title Company based on information provided by the parties, as follows:
(a) Payments under any Project Contracts or Personal Property Leases and not specifically provided fees for in any other provision of this Agreement transferable licenses and permits which are assigned to Buyer, shall be adjusted prorated.
(b) General real estate taxes shall be prorated, using for such purpose the rate and valuation shown on the last available tax duplicate, but subject to further adjustment as provided below. Except If any real estate taxes prorated at Closing or assessments paid by Seller (as otherwise set forth hereinbelow) are later increased for any reason whatsoever, all items including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being greater than those shown on the tax duplicate available at Closing or because of any additions or corrections to be prorated pursuant to this Paragraph shall be prorated as the tax duplicate assessed by reason of the Closing Date, with Buyer to be treated as the owner Buyer's acquisition of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and then Seller shall be entitled to cancel promptly pay all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and such increases allocable to the period prior to the Closing Date and Seller shall be determined protect, indemnify, defend, and hold Buyer harmless from and against all such real estate tax and assessment increases, which obligations on the part of the Seller shall survive the Closing. If any real estate taxes prorated at Closing or assessments paid by Seller (as set forth below) are later decreased for any reason whatsoever, including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being less than those shown on the tax duplicate available at Closing or because of any corrections t o the tax duplicate assessed by reason of Buyer's acquisition of the Property or because of any post-Closing reduction in, or refund or rebate of, any taxes relating wholly or in part to a period before the Closing, if possiblethen Buyer shall promptly pay to Seller the savings allocable to the period prior to the Closing (less any costs incurred by Buyer to any unaffiliated third parties in connection with obtaining the reduction of such tax xxxx), or which obligation shall survive the Closing. Any special assessments that are a lien on the Property as of the date of this Agreement shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately without proration. Any special assessments that become a lien on the Property after the same have been determineddate of this Agreement shall be prorated in accordance with the provisions of this Section 12(b).
(c) Collected rents shall be prorated based upon the total rent roll payable for the month in which Closing occurs. In the event that Buyer and receives current rent from any tenants for the month in which the Closing occurs, then Buyer shall deliver to Seller shall (outside of escrow) the portion of such current rents attributable to periods prior to the extent necessary enter into an agreement to such effect at ClosingAdjustment Date. Seller shall attempt to have all utility meters read Additionally, in the event that any tenant, who as of the Closing Date. Seller shall further attempt is delinquent in the rental payments due Seller, delivers to obtain from the provider of same, all other service statements and bills of account adjusted as Buyer a rent check in an amount in excess of the Closing Date. Seller rent due Buyer for the month for which such check is delivered, Buyer shall be entitled allocate such excess first to refunds of all depositspay reasonable outside collection costs, if any, paid by to unaffiliated third parties, then to pay rents which become due after Closing, then pay remaining funds to Seller or Seller's predecessor-in-interest for any rents delinquent prior to Closing and held by entities providing were due as of the date such servicepayment was received; provided, orhowever, at in no event shall Buyer be obligated to collect delinquent rents on Seller's option, behalf.
(d) Final readings and final xxxxxxxx for utilities shall be made as of the Adjustment Date. Seller shall transfer pay all outstanding amounts due as of Seller's rightsuch time, title and interest in and to or such deposits amounts shall be credited to Buyer at Closing Closing. If final readings and shall receive a full credit for xxxxxxxx cannot be obtained prior to Closing, the amount of such deposits. All Contracts and other obligations in connection with the Propertyfinal bills, to the extent the same are intended to be assumed hereunderwhen received, shall be prorated as of the Closing DateAdjustment Date and the Title Company shall hold in escrow an amount equal to 125% of the reasonably anticipated amount of such xxxxxxxx, based upon the most recent available xxxxxxxx for similar periods until the Title Company shall have received notice of payment of such bills, at which time any remaining amount being withheld for such purpose shall be distributed to the Seller.
(be) Special assessments Buyer shall receive a credit at Closing for all deposits, including security deposits, under the Tenant Leases which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal delivered or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyerassigned to Buyer at Closing.
(cf) Seller S e l l er shall pay the cost of State and County transfer taxes or stamps imposed in connection with this transaction the recordation following closing costs: (i) all costs in the nature of the Deeds for the Real Property. Buyer shall pay the expense Mortgage Lender's assumption fees and charges related to Buyer's assumption of the title searchesMortgage Indebtedness, title premiums consisting of all loan assumption fees and lender attorney fees and costs, (ii) any state or local real or personal property transfer taxes, documentary stamps, fees or other title insurance costs on charges relating to the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense transfer of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum Property or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms assumption of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenMortgage Indebtedness,
Appears in 1 contract
Samples: Purchase Agreement (Associated Estates Realty Corp)
Prorations and Closing Costs. All matters involving prorations or adjustments to be made in connection with the Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing Date, with Buyer to be treated as the owner of the PropertyProperties, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property Properties for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to each of the Property Real Properties and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the PropertyProperties, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property Properties on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property Properties but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property Properties as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the New Jersey Real Properties and Buyer and Seller will share equally in the cost of state and county transfer taxes or stamps imposed in connection with the recordation of the Deed to the Xxxxxxx Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in Any base, minimum or similar rents collected by Buyer after Closing from a Tenant owing same at the payment time of rent Closing for a period or additional rent on the Closing Date, rents received from such tenant ninety (90) days after portion thereof prior to the Closing Date shall be applied in the following order of priorityorder: (aA) first, on account of any amount then due Seller from such Tenant for the two-month period prior to Closing, as reflected on the rent roll delivered by Seller at Closing; (B) next, on account of any amount then due Buyer from such Tenant for the period from and after the Closing; and (C) next, to Seller, on account of any other pre-Closing arrearages, as reflected on the rent roll delivered by Seller at Closing and (D) any balance then remaining to Buyer. Any and all additional rents escalation or reimbursement payments for taxes, operating or other expenses and other charges received from Tenants or other occupants of any of the Real Properties whether or not due or payable on or before the Closing Date but which relate in whole or in part to a period or periods preceding the Closing Date shall be apportioned, if and when received, as of the Closing Date and Buyer, to the extent any such sums are received after the Closing Date, shall promptly pay to Seller its pro rata share of such payments. Seller retains the right to pursue its remedies against Tenants after Closing for any delinquent rents or other amounts owed to Seller (other than proceedings to evict Tenant or terminate its lease). Buyer shall not enter into any agreement pursuant to which any sums owed to Seller in respect of any Lease for periods prior to the Closing are reduced, modified or waived. Buyer's obligations to collect rent arrearages shall be limited to commercially reasonable efforts, so long as such tenant is in arrears and Buyer shall under no circumstance be required to commence litigation against any Tenant to collect the same.
(e) All leasing commissions due or to become due prior to the Closing Date for current any Leases entered into before the date hereof and all amendments, renewals and modifications thereof entered into before the date hereof, shall be paid by Seller without contribution by, or prior rent arising after reimbursement from, Buyer. At Closing, then Buyer shall pay or reimburse Seller for any leasing commissions due or to become due prior to Closing for any Leases and for any amendments, modifications or renewals of any Leases entered into after the date hereof which are entered into in accordance with the provisions of Paragraph 15(e) hereof. Buyer shall expressly assume and be solely obligated to pay all leasing commissions payable under all Leases entered into prior to the date hereof (bincluding all amendments, renewals and modifications thereof) which are first due or payable on or after the Closing Date, regardless of the date on which such Leases (including all amendments, renewals and modifications thereof) were executed or any of the leasing commissions therefor earned, subject only to Buyer's right to approve any new Leases or amendments, discretionary renewals or modifications of any Leases which are not otherwise permitted pursuant to Paragraph 15(e), below. Seller shall be responsible for the costs of, and shall pay or perform prior to Closing (i) any tenant improvements and allowances for work performed or required to be performed (or paid, as applicable) prior to the Closing Date by or on behalf of Seller for all rent Leases (including all amendments, renewals and modifications thereof) entered into on or before the date of this Agreement for any of the Real Properties; and (ii) all base building work ("Base Building Work") which is to be performed at 0000 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx, as described in arrears Exhibit "E" annexed hereto and made a part hereof. Buyer shall assume, pay or reimburse (as applicable) Seller on the Closing Date for (i) the costs of any tenant improvements and allowances for work to first be performed after the Closing Date pursuant to Leases (including all amendments, renewals and modifications thereof) entered into prior to the date of this Agreement; and (ii) except for the Base Building Work referred to above, all costs of tenant improvements and allowances incurred by or on behalf of Seller in connection with any Leases (including all amendments, renewals and modifications thereof) entered into after the date of this Agreement for any of the Real Properties, provided the same were approved by Buyer or are otherwise permitted as set forth in Paragraph 15(e) hereof. The obligations of Buyer and Seller hereunder shall survive the Closing.
(f) Amounts paid or payable as fees or expenses under any of the Licenses assigned at Closing, shall be prorated as of the Closing Date but all amounts refundable under unassigned and unassignable Licenses shall belong to Seller.
(g) Seller shall be solely responsible for the payment of any "roll back taxes" assessed or imposed upon any of the Real Properties under the "Farmland Assessment Act of 1964," Chapter 58, Laws of 1964, N.J.S.A. 54:4 23-1 et seq., as amended, or the Pennsylvania Farmland and Forest Land Assessment Act of 1974, or Act 515, as amended, or otherwise, which relate to any period prior to the Closing Date; , and thenSeller agrees to indemnify, defend and save Buyer harmless (including attorneys' fees) from and against any claim for such taxes. This Paragraph shall survive Closing.
(h) Miscellaneous income including, without limitation, telephone and vending machine income, if any, shall be prorated as of the Closing Date.
(i) The provisions of this Paragraph 7 shall survive Closing hereunder.
Appears in 1 contract
Prorations and Closing Costs. The following items shall be prorated and paid at Closing: (i) ad valorem taxes on the Purchased Assets shall be prorated on a calendar year basis through the Closing Date; and (ii) assessments payable by Seller to the St. Xxxxx Property Owners' Association, Inc. shall be prorated through the Closing Date. All matters involving prorations late listing penalties, if any, shall be paid by Seller at Closing. Seller shall be responsible for any documentary transfer taxes imposed by reason of the transfer of the Purchased Assets to Purchaser as provided herein and any deficiency, interest or adjustments to penalty asserted with respect thereto. Purchaser shall pay the fees and costs of recording or filing the Deed. Seller shall be made responsible for all utilities used on the Real Property or otherwise in connection with the Business prior to Closing and not specifically provided for in any other provision of this Agreement Purchaser shall be adjusted as provided belowresponsible for all such utilities used after Closing. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph Ad valorem taxes shall be prorated as of the Closing Date, with Buyer to be treated as Date based on the owner of current tax bills for the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxesPurchased Assets, if anythen available, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Dateif not, taxes will be prorated on the basis of the most recently ascertainable latest available tax xxxxfigures and information. There shall Should any proration be no proration of Seller's insurance premiums or assignment of Seller's insurance policies based on such latest available tax figures and Seller shall information prove to be entitled to cancel all of its existing policies as inaccurate on receipt of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service tax bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before Purchased Assets for the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any year of the Real Property but which are payable in installments shall be adjusted based upon Closing, either Seller or Purchaser, as the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or case may be pendingbe, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien may demand at any time after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay payment from the cost other correction of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basissuch malapportionment. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date there is an adjustment or reassessment by any governmental authority with respect to, or affecting, any ad valorem taxes for any Purchased Assets for the year of the Closing or any prior year, any additional tax payment for any Purchased Assets required to be paid with respect to the year of the Closing shall be applied in prorated between Purchaser and Seller, and Seller agrees to pay its prorated portion of any such additional tax payment for the following order year of priority: (a) Closing, plus the entire amount of any such additional tax payment for any prior year, to Purchaser within ten days after receipt of written notice from Purchaser. If after the Closing there is an adjustment or reassessment by any governmental authority with respect to, or affecting, any ad valorem taxes for any Purchased Assets for the year of the Closing or any prior year, any refund for any Purchased Assets with respect to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to year of the Closing Date; shall be prorated between Purchaser and thenSeller, and Seller shall receive the entire amount of any such refund for any prior year.
Appears in 1 contract
Prorations and Closing Costs. All matters involving prorations or adjustments (a) Seller and Buyer agree to be made adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "Proration Time"), the following (collectively, the "Proration Items"): any interest relating to the Pool II Loan, real estate and personal property taxes and assessments relating to the Property (subject to the terms of Section 7.2.6(b) below), utility bills and any other operating expenses relating to the Property (except as hereinafter provided), including, but not limited to, premiums relating to Environmental Insurance, in accordance with Section 2.5, fees and costs incurred in connection with complying with the Closing ISRA requirements, and not specifically provided collected Rents (subject to the terms of Section 7.2.6(b) below). Seller will be charged and credited for in any other provision the amounts of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing DateProration Items relating to the period up to and including the Proration Time, with and Buyer to will be treated as the owner charged and credited for all of the Property, for purposes of prorations of income and expenses, on and Proration Items relating to the period after the Closing Date.
(a) Real estate taxes and all other ad valorem taxesProration Time. At Closing, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller Buyer shall be entitled to cancel a credit in the amount of the cash Tenant Deposits which exist at Closing. In addition, if any of the Tenant Deposits are in the form of letters of credit, such letters of credit shall be assigned to Cabot at Closing, if assignable. If any such letters of credit are not assignable, Seller shall reasonably cooperate with Buyer, provided that Seller shall not be responsible for incurring any expenses or liabilities beyond those which are de minimus, in order to have such letters of credit replaced with new letters of credit naming Cabot as the named beneficiary. Seller shall retain all of its existing policies the cash accounts held by Cabot as of the Closing Date. Buyer No Closing prorations shall be obligated (at its own election) set forth on the preliminary closing statement to obtain any replacement policies. The amounts of all telephone, electric, sewer, water be prepared by Seller and other utility bills, trash removal bills, janitorial and maintenance service bills relating submitted to the Property and allocable to the period Buyer for Buyer's approval prior to the Closing Date (the "Closing Statement"). The Closing Statement, once agreed upon, shall be determined and paid signed by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately and delivered to the Escrow Agent. No prorations will be made at the Closing. All prorations will be made on the Proration Date and shall be included in the adjustments to be made at that time. In the event that such amounts cannot be determined by the Proration Date, adjustments will be made thereafter, when actual figures are received (not to exceed 365 days after the same have been determinedClosing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. Buyer and Seller shall Except with respect to the extent necessary enter into an agreement Environmental Insurance, no prorations will be made in relation to such effect at Closinginsurance premiums, and Seller's insurance policies will not be assigned to Buyer. Seller shall attempt to have all utility meters read Final readings and final billings for utilities will be made if possible as of the Closing DateProration Tixx, xx xhich event no proration will be made at Proration Date with respect to utility bills. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall will be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest deposits presently in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection effect with the Propertyutility providers, and Buyer will be obligated to make its own arrangements for deposits with the extent the same are intended to be assumed hereunder, shall be prorated as utility providers. The provisions of this Section 7.2.6(a) will survive the Closing Datefor a period of twelve (12) months.
(b) Special assessments which have been filed Buyer will receive a credit on the Proration Date for the prorated amount (as a lien against any of the Real Property Proration Time) of all Rent previously paid to or collected by Seller and attributable to any period following the Proration Time. Rents are "Delinquent" when they were due prior to the Closing Date, and payment thereof has not been made on or before the Closing Date and are Date. Delinquent Rents will not payable in installments shall be paid by Sellerprorated. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases All sums collected by Seller Buyer from and after Closing from each Tenant will be applied first to Rent owed by such Tenant to Cabot for a rental any period or portion thereof from or of time after the Closing Date shall be credited and then to Buyer at Closing on a per diem basis. In addition, any security deposits held Delinquent Rent owed by Seller such Tenant to Cabot for any Lease, together with the interest due thereon, if any period of time prior to and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date. Any sums due Seller or Cabot will be promptly remitted to Seller. Buyer shall not have an exclusive right to collect any sums due Seller from Tenants under the Leases, rents received from and Seller hereby retains the right to pursue any Tenant under the Leases for any sums due Seller or Cabot for periods attributable to Seller's ownership of the Property or the Cabot Interest, provided, however, Seller (i) shall be required to notify Buyer in writing of Seller's intention to commence or pursue any legal proceedings; and (ii) shall not be permitted to commence or pursue any legal proceedings against any Tenant seeking eviction of such tenant ninety (90Tenant or the termination of the underlying Lease. The provisions of this Section 7.2.6(b) days after will survive the Closing Date shall be applied in the following order for a period of priority: eighteen (a18) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenmonths.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Cabot Industrial Properties Lp)
Prorations and Closing Costs. All matters involving 9.5.1 Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments (subject to the terms of Section 9.5.2 below), utility bills (except as hereinafter provided), and collected Rents. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Buyer will be charged and credited for all of the Proration Items relating to the period after the Proration Time. No prorations or adjustments to will be made in connection relation to insurance premiums, and Seller’s insurance policies will not be assigned to Buyer. Final readings and final xxxxxxxx for utilities, to the extent not paid directly by the Tenant, will be made if possible as of the Proration Time, in which event no proration will be made at Closing with respect to utility bills.
9.5.2 All ad valorem real estate and personal property taxes with respect to the Closing and Property (to the extent not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph paid directly by the Tenant) shall be prorated as of the Closing DateProration Time without regard to when said taxes are payable, with Buyer to be treated as using the owner tax year of the Propertyapplicable taxing authority, for purposes of prorations of income so that (i) any taxes assessed against the Property and expenses, on allocable to periods prior to the Proration Time shall be credited to Buyer (but only to the extent such taxes are not paid directly by the Tenant) and (ii) any taxes assessed against the Property and allocable to periods from and after the Closing Date.
Proration Time shall be the responsibility of Buyer. If the amount of any taxes to be prorated in accordance with this Section 9.5.2 is not then ascertainable, the adjustment thereof shall be predicated upon 100% of the most recent ascertainable assessments and tax rates (a) Real estate taxes and all other ad valorem taxes, if anyassuming, with respect to the Orlando Real Property Estate, that HP IV takes advantage of the maximum discount provided by the taxing municipality for the applicable fiscal or calendar year in early payment of real estate taxes). Seller and Buyer do hereby further agree with regard to any proration for real estate taxes for which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is final xxxx was not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Proration Time, to reprorate said real estate taxes forthwith upon Buyer’s receipt of the actual tax xxxx for the tax year in question. This covenant shall survive the Closing Dateof this transaction. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating .
9.5.3 With respect to the Property and allocable to Leases, the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall following will be credited to Buyer at Closing on a per diem basis. In additionas of the Proration Time: (i) all non-cash lease, any security or other deposits held by Seller, (ii) an amount equal to all current and future abatements, concessions or allowances granted to the Tenant under the Leases, (iii) an amount equal to unpaid tenant improvements and lease commissions in connection with Leases, (iv) all prepaid rent and rent paid for the balance of the month of Closing, (v) all sums currently held by Seller pursuant to the terms of Leases as estimated deposits for any Leasetenants’ share of real estate taxes and operating expenses for the period after Closing, together with (vi) all cash lease, security or other deposits made by Tenant under the Leases and interest due thereon, if any, received, earned or required to have been earned prior to the Proration Time. Seller shall not receive credit at Closing for any and if required payments of rental obligations due, but not paid on the Proration Time from the Tenant under the terms of the Lease Leases (“Non-Credit Items”). Following receipt by Seller or as required by applicable lawBuyer of any payments from Tenant for which there is a Non-Credit Item in existence, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date payments shall be applied distributed and/or remitted in the following order of priority: (i) to Buyer for rent and other Lease obligations due or accrued from such tenant from and after the Proration Time and when, and only when, such rents and other Lease obligations have been paid in full to Buyer; then (ii) the balance to Seller to the extent of any such Non-Credit Items with respect to Tenant. If a Non-Credit Item due Seller is not paid by Tenant within the later of (a) sixty (60) days after the Closing or (b) sixty (60) days after billing therefor, Seller shall have the right to the Buyer, attempt to effect collection by litigation or otherwise so long as such tenant is Seller does not take any action which would (x) affect Tenant’s right to occupy the leased premises or (y) terminate its Lease. Buyer shall cooperate with Seller in arrears for current its efforts to collect Non-Credit Items but shall not be required to take any action against Tenant which would affect Tenant’s right to occupy its leased premises or prior rent arising after Closing, then (b) to Seller terminate its Lease.
9.5.4 Buyer shall receive a credit against the Purchase Price at Closing for all rent in arrears payments, if any, due or owing under any Contracts for periods prior to the Closing Date, which amounts shall be prorated as of the Proration Time. If Seller has paid any amounts under any Contracts for periods after the Proration Time, Buyer shall pay such amounts to Seller at Closing in addition to the Purchase Price.
9.5.5 Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Buyer for Buyer’s approval prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Buyer and Seller and delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Proration Time, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received (not to exceed 120 days after Closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. The provisions of this Section 9.5.1
(a) will survive the Closing for a period of twelve (12) months.
9.5.6 Seller shall pay (a) the cost of discharging any Monetary Liens affecting the Property, (b) one-half of the Escrow Agent’s escrow fee, (b) all of the costs associated with the issuance of the Title Commitments and Title Policy, other than the costs of any endorsements Buyer may require in accordance with Section 4.3; (c) the cost of the Surveys, (d) State of Illinois and Lake County transfer taxes, Florida deed taxes, and (e) any additional costs and charges customarily charged to sellers in accordance with common escrow practices in the county in which the Property is located, other than those costs and charges specifically required to be paid by Buyer hereunder. Buyer shall pay (a) one-half of the Escrow Agent’s escrow fee, (b) the costs of any endorsements to the Title Policies that Buyer may require in accordance with Section 4.3, (c) the recording fees required in connection with the transfer of the Property to Buyer; and then(d) any additional costs and charges customarily charged to buyers in accordance with common escrow practices in the municipality in which the Property is located, other than those costs and charges specifically required to be paid by Seller hereunder.
Appears in 1 contract
Prorations and Closing Costs. All matters involving prorations or prorations, adjustments to and final readings shall be made in connection with as of 11:59 pm of the day preceding the Closing Date, unless otherwise mutually agreed to by the parties (the "Adjustment Date"), by the Title Company based on information provided by the parties, as follows:
(a) Payments under any Project Contracts or Personal Property Leases and not specifically provided fees for in any other provision of this Agreement transferable licenses and permits which are assigned to Buyer, shall be adjusted prorated.
(b) General real estate taxes shall be prorated, using for such purpose the rate and valuation shown on the last available tax duplicate, but subject to further adjustment as provided below. Except If any real estate taxes prorated at Closing or assessments paid by Seller (as otherwise set forth hereinbelow) are later increased for any reason whatsoever, all items including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being greater than those shown on the tax duplicate available at Closing or because of any additions or corrections to be prorated pursuant to this Paragraph shall be prorated as the tax duplicate assessed by reason of the Closing Date, with Buyer to be treated as the owner Buyer's acquisition of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and then Seller shall be entitled to cancel promptly pay all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and such increases allocable to the period prior to the Closing Date and Seller shall be determined protect, indemnify, defend, and hold Buyer harmless from and against all such real estate tax and assessment increases, which obligations on the part of the Seller shall survive the Closing. If any real estate taxes prorated at Closing or assessments paid by Seller (as set forth below) are later decreased for any reason whatsoever, including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being less than those shown on the tax duplicate available at Closing or because of any corrections t o the tax duplicate assessed by reason of Buyer's acquisition of the Property or because of any post-Closing reduction in, or refund or rebate of, any taxes relating wholly or in part to a period before the Closing, if possiblethen Buyer shall promptly pay to Seller the savings allocable to the period prior to the Closing (less any costs incurred by Buyer to any unaffiliated third parties in connection with obtaining the reduction of such tax xxxx), or which obligation shall survive the Closing. Any special assessments that are a lien on the Property as of the date of this Agreement shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately without proration. Any special assessments that become a lien on the Property after the same have been determined. Buyer and date of this Agreement shall be paid as follows: Seller shall pay all installments that are due and payable prior to the extent necessary enter into an agreement Closing Date and Buyer shall pay all installments that become due and payable on or after the Closing Date.
(c) Collected rents shall be prorated based upon the total rent roll payable for the month in which Closing occurs. In the event that Buyer receives current rent from any tenants for the month in which the Closing occurs, then Buyer shall deliver to Seller (outside of escrow) the portion of such effect at Closingcurrent rents attributable to periods prior to the Adjustment Date. Seller shall attempt to have all utility meters read Additionally, in the event that any tenant, who as of the Closing Date. Seller shall further attempt is delinquent in the rental payments due Seller, delivers to obtain from the provider of same, all other service statements and bills of account adjusted as Buyer a rent check in an amount in excess of the Closing Date. Seller rent due Buyer for the month for which such check is delivered, Buyer shall be entitled allocate such excess first to refunds of all depositspay reasonable outside collection costs, if any, paid by to unaffiliated third parties, then to pay rents which become due after Closing, then pay remaining funds to Seller or Seller's predecessor-in-interest for any rents delinquent prior to Closing and held by entities providing were due as of the date such servicepayment was received; provided, orhowever, at in no event shall Buyer be obligated to collect delinquent rents on Seller's option, behalf.
(d) Final readings and final xxxxxxxx for utilities shall be made as of the Adjustment Date. Seller shall transfer pay all outstanding amounts due as of Seller's rightsuch time, title and interest in and to or such deposits amounts shall be credited to Buyer at Closing Closing. If final readings and shall receive a full credit for xxxxxxxx cannot be obtained prior to Closing, the amount of such deposits. All Contracts and other obligations in connection with the Propertyfinal bills, to the extent the same are intended to be assumed hereunderwhen received, shall be prorated as of the Closing DateAdjustment Date and the Title Company shall hold in escrow an amount equal to 125% of the reasonably anticipated amount of such xxxxxxxx, based upon the most recent available xxxxxxxx for similar periods until the Title Company shall have received notice of payment of such bills, at which time any remaining amount being withheld for such purpose shall be distributed to the Seller.
(be) Special assessments Buyer shall receive a credit at Closing for all deposits, including security deposits, under the Tenant Leases which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal delivered or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyerassigned to Buyer at Closing.
(cf) Seller S e l l er shall pay the cost of State and County transfer taxes or stamps imposed in connection with this transaction the recordation following closing costs: (i) all costs in the nature of the Deeds for the Real Property. Buyer shall pay the expense Mortgage Lender's assumption fees and charges related to Buyer's assumption of the title searchesMortgage Indebtedness, title premiums consisting of all loan assumption fees and lender attorney fees and costs, (ii) any state or local real or personal property transfer taxes, documentary stamps, fees or other title insurance costs on charges relating to the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense transfer of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum Property or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms assumption of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenMortgage Indebtedness and
Appears in 1 contract
Samples: Purchase Agreement (Associated Estates Realty Corp)
Prorations and Closing Costs. All matters involving prorations or prorations, adjustments to be made in connection with the Closing and not specifically provided for in any other provision of this Agreement final readings shall be adjusted made, unless otherwise mutually agreed to by the parties, on the Adjustment Date, by the Title Company based on information provided by the parties, as follows:
(a) Payments under any Project Contracts or Personal Property Leases and fees for any transferable licenses and permits shall be prorated;
(b) General Real Estate taxes shall be prorated, using for such purpose the rate and valuation shown on the last available tax duplicate, but subject to further adjustment as provided below. Except If any real estate taxes prorated at Closing or assessments paid by Seller (as otherwise set forth hereinbelow) are later increased for any reason whatsoever, all items to be prorated pursuant to this Paragraph shall be prorated as of including, without limitation, the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real real estate taxes and all other ad valorem taxes, if any, with respect assessments shown on the later issued actual tax duplicate being greater than those shown on the tax duplicate available at Closing or because of any additions or corrections to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount tax duplicate assessed by reason of such taxes is not known on the Closing Date, taxes will be prorated on the basis Buyer's acquisition of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Project, then Seller shall be entitled to cancel promptly pay all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and such increases allocable to the period prior to the Closing Date and Seller shall protect, indemnify, defend, and hold Buyer harmless from and against all such real estate tax and assessment increases, which obligations on the part of the Seller and shall survive the Closing. Any special assessment which is a lien on the Project at Closing shall be determined and paid by Seller before Closingwithout proration.
(c) Collected rents shall be prorated based upon the total rent roll payable for the month in which the Closing occurs. In the event that any tenant, who as of the Closing is delinquent in the rental payments due Seller, delivers to Buyer a rent check in an amount in excess of the rent due Buyer for the month for which such check is delivered, Buyer shall allocate such excess first to pay reasonable outside collection costs, if possibleany, then to pay rents which become due after the Closing and are currently due and owing as of the date such payment is received, then pay remaining funds to Seller for any rents delinquent prior to the Closing; provided, however, in no event shall Buyer be obligated to collect delinquent rents on Seller's behalf;
(d) Final readings and final billxxxx xxx utilities shall be made as of the Adjustment Date. Seller shall pay all outstanding amounts due as of such time, or such amounts shall be paid promptly thereafter by Seller or adjusted between credited to Buyer and Seller immediately after at the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt assign to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer Buyer all of Seller's its right, title and interest in and to such any utility and other similar deposits to Buyer at Closing and Seller shall receive a full credit for the amount of all such deposits. All Contracts If final readings and other obligations in connection with the Property, billxxxx xxxnot be obtained prior to the extent Closing, the same are intended to be assumed hereunderfinal bills, when received, shall be prorated as of the Closing Date.Adjustment Date and the Title Company shall hold in escrow an amount equal to 150% of the reasonably anticipated amount of such billxxxx, xxsed upon the most recent available billxxxx xxx similar periods until the Title Company shall have received notice of payment of such bills, at which time any remaining amount being withheld for such purpose shall be distributed to the Seller;
(be) Special assessments All salaries, benefits, and payroll taxes for all employees hired by Buyer shall be prorated;
(f) Seller shall assign to Buyer or Buyer's affiliate (as directed by Buyer) at the Closing an amount equal to all Deposits which have been filed Seller received under the Tenant Leases and which Seller has not returned or applied in accordance with the provision of Tenant Leases; and
(g) Except with respect to attorney's fees as discussed below, all closing costs relating to this transaction, including, (i) any escrow fee at the Closing, (ii) the cost of a lien against any new or upgraded or updated survey of the Real Property on or before and (iii) the Closing Date and are not payable in installments cost of the Title Policy together with all endorsements attached thereto shall be paid by Seller. Special assessments which have been filed as a lien Buyer, but such payments shall be charged against any the capital accounts of the Real Property but which are payable Limited Partner's (as defined in installments shall the Contribution Agreement) pursuant to the Contribution Agreement. Additionally, any prorations that Buyer may receive under this Section 11 that would otherwise be adjusted based upon credited against the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as balance of the Closing Date, and special assessments which are filed Purchase Price shall instead be charged against the capital accounts of the Limited Partners as a lien after the Closing Date, provided above. Each party shall be assumed and paid by Buyerpay its own attorneys' fees.
(ch) In the event that there is a Punchlist Holdback Escrow, Seller shall pay deliver to the cost of State and County transfer taxes or stamps imposed Title Company to hold in connection with the recordation escrow an amount equal to 125% of the Deeds for reasonably anticipated amount of such Punchlist Holdback Escrow, until the Real Property. Title Company shall have received notice from Buyer shall pay the expense and Seller of completion of the title searchesPunchlist Work and assurances of payment of such bills relating to the Punchlist Holdback Escrow, title premiums and at which time any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) remaining amount being withheld for such purpose shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) distributed to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenSeller.
Appears in 1 contract
Samples: Contribution and Partnership Interest Purchase Agreement (Associated Estates Realty Corp)
Prorations and Closing Costs. All matters involving prorations or prorations, adjustments to and final readings shall be made in connection with as of 11:59 pm of the day preceding the Closing Date, unless otherwise mutually agreed to by the parties (the "Adjustment Date"), by the Title Company based on information provided by the parties, as follows:
(a) Payments under any Project Contracts or Personal Property Leases and not specifically provided fees for in any other provision of this Agreement transferable licenses and permits which are assigned to Buyer, shall be adjusted prorated.
(b) General real estate taxes shall be prorated, using for such purpose the rate and valuation shown on the last available tax duplicate, but subject to further adjustment as provided below. Except If any real estate taxes prorated at Closing or assessments paid by Seller (as otherwise set forth hereinbelow) are later increased for any reason whatsoever, all items including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being greater than those shown on the tax duplicate available at Closing or because of any additions or corrections to be prorated pursuant to this Paragraph shall be prorated as the tax duplicate assessed by reason of the Closing Date, with Buyer to be treated as the owner Buyer's acquisition of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and then Seller shall be entitled to cancel promptly pay all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and such increases allocable to the period prior to the Closing Date and Seller shall be determined protect, indemnify, defend, and hold Buyer harmless from and against all such real estate tax and assessment increases, which obligations on the part of the Seller shall survive the Closing. If any real estate taxes prorated at Closing or assessments paid by Seller (as set forth below) are later decreased for any reason whatsoever, including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being less than those shown on the tax duplicate available at Closing or because of any corrections to the tax duplicate assessed by reason of Buyer's acquisition of the Property or because of any post-Closing reduction in, or refund or rebate of, any taxes relating wholly or in part to a period before the Closing, if possiblethen Buyer shall promptly pay to Seller the savings allocable to the period prior to the Closing (less any costs incurred by Buyer to any unaffiliated third parties in connection with obtaining the reduction of such tax bill), or xhich obligation shall survive the Closing. Any special assessments that are a lien on the Property as of the date of this Agreement shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately without proration. Any special assessments that become a lien on the Property after the same have been determined. Buyer and date of this Agreement shall be paid as follows: Seller shall pay all installments that are due and payable prior to the extent necessary enter into an agreement Closing Date and Buyer shall pay all installments that become due and payable on or after the Closing Date.
(c) Collected rents shall be prorated based upon the total rent roll payable for the month in which Closing occurs. In the event that Buyer receives current rent from any tenants for the month in which the Closing occurs, then Buyer shall deliver to Seller (outside of escrow) the portion of such effect at Closingcurrent rents attributable to periods prior to the Adjustment Date. Seller shall attempt to have all utility meters read Additionally, in the event that any tenant, who as of the Closing Date. Seller shall further attempt is delinquent in the rental payments due Seller, delivers to obtain from the provider of same, all other service statements and bills of account adjusted as Buyer a rent check in an amount in excess of the Closing Date. Seller rent due Buyer for the month for which such check is delivered, Buyer shall be entitled allocate such excess first to refunds of all depositspay reasonable outside collection costs, if any, paid by to unaffiliated third parties, then to pay rents which become due after Closing, then pay remaining funds to Seller or Seller's predecessor-in-interest for any rents delinquent prior to Closing and held by entities providing were due as of the date such servicepayment was received; provided, orhowever, at in no event shall Buyer be obligated to collect delinquent rents on Seller's option, behalf.
(d) Final readings and final billxxxx xxx utilities shall be made as of the Adjustment Date. Seller shall transfer pay all outstanding amounts due as of Seller's rightsuch time, title and interest in and to or such deposits amounts shall be credited to Buyer at Closing Closing. If final readings and shall receive a full credit for billxxxx xxxnot be obtained prior to Closing, the amount of such deposits. All Contracts and other obligations in connection with the Propertyfinal bills, to the extent the same are intended to be assumed hereunderwhen received, shall be prorated as of the Closing DateAdjustment Date and the Title Company shall hold in escrow an amount equal to 125% of the reasonably anticipated amount of such billxxxx, xxsed upon the most recent available billxxxx xxx similar periods until the Title Company shall have received notice of payment of such bills, at which time any remaining amount being withheld for such purpose shall be distributed to the Seller.
(be) Special assessments Buyer shall receive a credit at Closing for all deposits, including security deposits, under the Tenant Leases which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal delivered or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyerassigned to Buyer at Closing.
(cf) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with this transaction the recordation following closing costs: (i) any state or local real or personal property transfer taxes, documentary stamps, fees or other charges relating to the transfer of the Deeds for the Real Property. Buyer shall pay in connection with this transaction the expense following closing costs: (i) all recording fees, (ii) the costs of the title searchesendorsements to the Title Policy and all endorsements thereto and (iii) any escrow charges. Each party shall pay its own attorneys' fees. All closing costs allocable to Seller, title premiums and including, without limitation, any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired prorations to which Buyer may be entitled by Buyer. Buyer agrees to pay the expense reason of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date foregoing shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with against the interest due thereon, if any and if required under the terms balance of the Lease or as required by applicable law, shall either Appraised Value to be credited or transferred to Buyer paid at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then.
Appears in 1 contract
Samples: Purchase Agreement (Associated Estates Realty Corp)
Prorations and Closing Costs. All matters involving prorations or adjustments to be made to the Consideration in connection with the Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing Date, with Buyer the Partnership to be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of SellerEnglish Creek's insurance premiums or assignment of SellerEnglish Creek's insurance policies and Seller English Creek shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer The Partnership shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller English Creek before Closing, if possible, or shall be paid promptly thereafter by Seller English Creek or adjusted between Buyer the Partnership and Seller English Creek immediately after the same have been determined. Buyer The Partnership and Seller English Creek shall to the extent necessary enter into an agreement to such effect at Closing. Seller English Creek shall attempt to have all utility meters read as of the Closing Date. Seller English Creek shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller English Creek shall be entitled to refunds of all deposits, if any, paid by Seller English Creek or SellerEnglish Creek's predecessor-in-interest prior to Closing and held by entities providing such service, or, at SellerEnglish Creek's option, Seller English Creek shall transfer all of SellerEnglish Creek's right, title and interest in and to such deposits to Buyer the Partnership at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by SellerEnglish Creek. Special assessments which have been filed as a lien against any of the Real Property Property, but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyerthe Partnership. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyerthe Partnership.
(c) Seller English Creek shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer The Partnership shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyerthe Partnership. Buyer The Partnership agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyerthe Partnership's Due Diligence Activities (as defined below) shall be borne solely by Buyerthe Partnership.
(d) Any base, minimum or similar rents under the Leases collected by Seller English Creek for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer the Partnership at Closing on a per diem basis. In addition, any security deposits held by Seller English Creek for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer the Partnership at Closing at SellerEnglish Creek's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the BuyerPartnership, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller English Creek for all rent in arrears prior to the Closing Date; and then
Appears in 1 contract
Prorations and Closing Costs. All matters involving 9.5.1 (1) Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments (subject to the terms of Section 9.5.1(b) below), utility bills (except as hereinafter provided), collected Rents (subject to the terms of Section 9.5.1(b) below) and Operating Expenses (subject to the terms of Section 9.5.1(c) below) payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Buyer will be charged and credited for all of the Proration Items relating to the period after the Proration Time. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Buyer for Buyer’s approval prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Buyer and Seller and delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or adjustments by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Proration Time, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received (not to exceed 120 days after closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. No prorations will be made in connection relation to insurance premiums, and Seller’s insurance policies will not be assigned to Buyer. Final readings and final xxxxxxxx for utilities will be made if possible as of the Proration Time, 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 utility providers, and Buyer will be obligated to, make its own arrangements for deposits with the utility providers. The provisions of this Section 9.5.1(a) will survive the Closing for a period of twelve (12) months.
(a) Buyer will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rent previously paid to or collected by Seller and attributable to any period following the Proration Time. Rents are “Delinquent” when they were due prior to the Closing Date, and payment thereof has not been made on or before the Closing Date Delinquent Rents will not be prorated. All sums collected by Buyer from and after Closing from each Tenant will be applied first to current amounts owed by such Tenant to Buyer and then to Delinquent Rent owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller. Buyer shall not have an exclusive right to collect any sums due Seller from Tenants under the Leases and Seller hereby retains the right to pursue any Tenant under the Leases for any sums due Seller for periods attributable to Seller’s ownership of the Property; provided, however, Seller (i) shall be required to notify Buyer in writing of Seller’s intention to commence or pursue any legal proceedings; (ii) shall only be permitted to commence or pursue legal proceedings after the date which is three (3) months after Closing, and (iii) shall not be permitted to commence or pursue any legal proceedings against any Tenant seeking eviction of such Tenant or the termination of the underlying Lease. The provisions of this Section 9.51(b) will survive the Closing for a period of twelve (12) months.
(b) Seller shall prepare a reconciliation as of the Closing Date of the amounts of all xxxxxxxx and charges for operating expenses and tax escalations (collectively, “Operating Expenses”). If more amounts have been expended for Operating Expenses than have been collected from Tenants for Operating Expenses, Buyer shall pay such difference to Seller at Closing as an addition to the Purchase Price. If more amounts have been collected from Tenants for Operating Expenses than have been expended for Operating Expenses, Seller will pay to Buyer at Closing, as a credit against the Purchase Price, such excess collected amount. Buyer and Seller agree that such proration of Operating Expenses at Closing will fully relieve Seller from any responsibility to Tenants and Buyer for such matters. In this regard, Buyer will be solely responsible, from and after Closing, for (i) collecting from Tenants the amount of any outstanding Operating Expenses for periods before and after the Closing and (ii) where appropriate, reimbursing Tenants for amounts attributable to Operating Expenses, as may be necessary based on annual reconciliations for Operating Expenses.
(c) All ad valorem real estate and personal property taxes with respect to the Property (to the extent not specifically provided for prorated in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph (c) above) shall be prorated as of the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations of income and expenses, Proration Time on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property a cash basis for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If occurs, regardless of the amount of year for which such taxes is are assessed.
(d) Buyer shall receive a credit against Purchase Price at Closing for all Tenant Deposits then outstanding under the Leases and for all Rent paid in advance (to the extent not known on prorated as set forth in (b) above).
(e) Buyer shall receive a credit against the Purchase Price at Closing for all payments due or owing under any Contracts for periods prior to the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The which amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Proration Time. If Seller has paid any amounts under any Contracts for periods after the Proration Time, Buyer shall pay such amounts to Seller at Closing Datein addition to the Purchase Price.
(f) Seller shall receive a credit for any and all Reimbursable Lease Expenses as set forth in Section 8.2 of this Agreement and for any and all Reimbursable Capital Expenses, to the extent that the same have been paid by Seller prior to Closing. Each party shall make available to the other all records, bills, vouchers and other data in such party’s control verifying Reimbursable Capital Expenses and the payment thereof.
9.5.2 Seller shall pay (a) one-half of any and all state, county or local transfer or deed recordation taxes, (b) Special assessments which have been filed as a lien against any one-half of the Real Escrow Agent’s escrow fee, and (c) any additional costs and charges customarily charged to sellers in accordance with common escrow practices in the county in which the Property on or before the Closing Date is located, other than those costs and are not payable in installments shall charges specifically required to be paid by Seller. Special assessments which have been filed as a lien against Buyer hereunder Buyer shall pay (a) one-half of any and all state, county or local transfer or deed recordation taxes, (b) one-half of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pendingEscrow Agent’s escrow fee, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay all of the cost costs associated with the issuance of State the Title Commitment and County transfer taxes or stamps imposed Title Policy, including the costs of any endorsements Buyer may require in accordance with Section 4.3, (d) the recording fees required in connection with any financing associated with the recordation transfer of the Deeds for Property to Buyer, and (e) any, additional costs and charges customarily charged to buyers in accordance with common escrow practices in the Real Propertycounty in which the Property is located, other than those costs and charges specifically required to be paid by Seller hereunder. In addition to the foregoing, Buyer shall pay be responsible for any costs of updating the expense Survey of the title searches, title premiums and any other title insurance costs on Property or otherwise conforming the owner's title insurance policies and Survey to the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense requirements for issuance of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum Title Policy or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if new survey that may be required under the terms for issuance of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenTitle Policy.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Bresler & Reiner Inc)
Prorations and Closing Costs. All matters involving (a) Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Cut-Off Time”), in accordance with the applicable provisions of this Section 9.6, the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), payments paid or due under Contracts, revenues from guest rooms and other facilities at the Property and collected Rents and Operating Expenses payable by the Seller with respect to the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Cut-Off Time, and Buyer will be charged and credited for all of the Proration Items relating to the period after the Cut-Off Time. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Buyer for Buyer’s reasonable approval prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Buyer and Seller and delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or adjustments by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received (not to exceed 180 days after Closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. No prorations will be made in connection relation to insurance premiums, and Seller’s insurance policies will not be assigned to Buyer. Final readings and final xxxxxxxx for 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 Closing utility providers, and not specifically provided Buyer will be obligated to make its own arrangements for in any other provision future deposits with the utility providers. The provisions of this Agreement Section 9.6(a) will survive the Closing for twelve (12) months.
(b) Buyer will receive a credit on the Closing Statement for the prorated amount (as of the Cut-Off Time) of all Rents previously paid to or collected by Seller and attributable to any period following the Cut-Off Time. Rents are “Delinquent” when they were due prior to the Closing Date, and payment thereof has not been made on or before the Closing Date. Delinquent Rents will not be prorated. All sums collected by Buyer from and after Closing from each Tenant will be applied first to Delinquent Rents owed by such Tenant to Seller and then to current amounts owed by Tenant to Buyer. Buyer agrees that any sums due Seller will be promptly remitted to Seller. Buyer shall be adjusted have the exclusive right to collect any sums due Seller from Tenants under the Leases, provided that Buyer shall use commercially reasonable and diligent efforts to collect any Delinquent Rents. The provisions of this Section 9.6(b) will survive the Closing for 90 days and shall continue to survive for any delinquent rents identified within the initial period of 90 days following the Closing.
(c) All Additional Rents (as provided defined below. Except as otherwise set forth herein, all items ) which have been received in respect to be prorated pursuant to this Paragraph the month in which the Closing Date occurs (the “Current Month”) shall be prorated as of the Closing Date, with Buyer to be treated Cut-Off Time. Such Additional Rents for the Current Month which have been received as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs Date shall be prorated on a per diem basisbasis based upon the number of days in the Current Month prior to, but not including, the Cut-Off Time (which shall be allocated to Seller) and the number of days in the Current Month from and after the Cut-Off Time (which shall be allocated to Buyer). If the amount of such taxes is Seller shall not known be credited on the Closing Date, taxes will be prorated on Date with its share of rents and other tenant charges and Additional Rents for the basis of Current Month and for all periods prior to the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies Current Month which have not been received as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephonesolely responsible, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed for using commercially reasonable efforts to collect unpaid Additional Rents and remitting Seller’s share thereof to Seller. Additional Rents for calendar year 2007 are paid by Buyer.
on an estimated basis in monthly installments. At least five (c5) Business Days prior to the Closing Date, Seller shall pay the cost cause to be prepared and delivered to Buyer a reconciliation (“Additional Rents Reconciliation”) of State (i) actual operating and County transfer taxes or stamps imposed in connection with the recordation similar expenses of the Deeds Property upon which Additional Rents are based (“Additional Rent Expenses”) for the Real Property. Buyer shall pay period commencing on January 1, 2007 and ending on the expense last day of the title searchesCurrent Month (“Additional Rents Reconciliation Period”), title premiums and any other title insurance costs on it being understood that certain Additional Rents Expenses for the owner's title insurance policies and the cost of obtaining any surveysAdditional Rents Reconciliation Period, if desired not based on actual amounts (such as certain operating expenses for the Current Month), may be reasonably estimated by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities Seller; and (as defined belowii) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases Additional Rents collected by Seller for a rental period or that portion thereof from or after of the Closing Date Additional Rents Reconciliation Period prior to the Current Month and Additional Rents payable for the Current Month. Any amount shown to be owed by Seller to the tenants of the Property under the Additional Rents Reconciliation shall be credited to Buyer at Closing on a per diem basisthe Closing, and any amounts shown to be owed to Seller by tenants of the Property under the Additional Rents Reconciliation shall be paid to Seller upon receipt thereof from the applicable Tenant. In additionFor purposes of this Section 9.6(c), any security deposits held by Seller for any Lease, together with the interest due thereon, if “Additional Rents” shall mean any and if required under all amounts due from Tenants for Operating Expenses and any other tenant charges other than Rents. Notwithstanding the terms foregoing, amounts payable by lessees in respect of the overtime heat, air conditioning or other utilities or services, freight elevator charges, supplemental water, HVAC and condenser charges, services or repairs and labor costs associated therewith, above standard cleaning and all other items which are payable to Seller as reimbursement or payment for above standard overtime services, whether pursuant to such lessee’s Lease or as required by applicable lawpursuant to a separate agreement with Seller, shall either not be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Dateadjusted, rents received from such tenant ninety (90) days after the Closing Date and shall be applied in the following order of priority: (a) belong to the Buyerparty furnishing such utilities, so long as labor or services to such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenlessee.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Apple REIT Eight, Inc.)
Prorations and Closing Costs. All matters involving prorations or adjustments 10.6.1 Seller and Buyer agree to be made in connection with adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Proration Time”), for the proration items listed in this Section 10.6 (collectively, the “Proration Items”):
(a) All taxes and not specifically provided assessments on the Property for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of prior years and all current year taxes and assessments that are due and payable on or before the Closing Dateshall have been paid by Seller on or before the Closing, subject to proration with Buyer to be treated as responsible for taxes and assessments relating to the owner of the Property, for purposes of prorations of income and expenses, on and period after the Closing Date.
(a) Real estate Proration Time. Accrued but not yet payable general real estate, personal property and ad valorem taxes and all other ad valorem taxes, if any, with respect to the Real Property assessments for the applicable fiscal or calendar current year in which the Closing occurs only shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There recent available information, as adjusted by any known charges relating to the period during which the Closing occurs.
(b) All charges for gas, electricity, water, telephone, sewer and other utilities shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies prorated as of the Closing DateProration Time, based on meter reading (if available) taken on the day prior to Closing, or on the basis of the most recent available information, as reasonably adjusted to account for known variances from usage that would not otherwise be reflected in such information. Buyer shall be obligated (at transfer all utilities to its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, name or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of Premier’s name on the Closing Date. Seller shall further attempt reasonably cooperate with Buyer to obtain from transfer the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller utilities into Buyer’s or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations Premier’s name in connection with the Property, to Closing.
(c) Any income or expense items under the extent the same are intended to be assumed hereunder, Contracts shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by BuyerProration Time.
(d) Any baseAll periodic membership dues or other periodic membership charges (other than membership initiation fees, minimum or similar rents under the Leases which shall not be prorated) that have been collected by Seller shall be prorated as of the Proration Time.
(e) Buyer shall receive a credit to the Purchase Price in the amount of all deposits for a rental period or portion thereof from Bookings to take place on or after the Closing.
(f) Buyer shall receive a credit to the Purchase Price for fifty percent (50%) for all merchandise gift certificates and rain checks redeemable at the Golf Club and sold or issued before the Closing Date but neither redeemed nor expired as of the Closing.
(g) Buyer shall pay to Seller at Closing an amount for Seller’s Receivables as provided below (the “Seller’s Receivables Amount”). Seller’s Receivables which are sixty (60) days or less old from the initial billing date shall be credited paid at one hundred percent (100%). Seller’s Receivables which are more than sixty (60) days but less than one hundred twenty (120) days old from the initial billing date shall be paid at fifty percent (50%). Seller’s Receivables which are one hundred twenty (120) days old or greater shall be paid at zero percent (0%). The term “Seller’s Receivables” means: (1) delinquent or uncollected membership dues and charges or fees, golf cart fees, handicap fees, driving range fees, golf club storage fees, locker fees and trail fees with respect to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms Golf Clubs as of the Lease or as required by applicable lawProration Time; (2) unpaid amounts with respect to tournaments, shall either be credited or transferred to Buyer banquets, meetings and other functions held at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears Golf Clubs prior to the Closing DateProration Time; and then(3) any other receivables of Seller with respect to the Golf Clubs which, as of the Proration Time, are payable or past due.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (CNL Income Properties Inc)
Prorations and Closing Costs. All matters involving prorations or prorations, adjustments to and final readings shall be made in connection with as of 11:59 pm of the day preceding the Closing Date, unless otherwise mutually agreed to by the parties (the "Adjustment Date"), by the Title Company based on information provided by the parties, as follows:
(a) Payments under any Project Contracts or Personal Property Leases and not specifically provided fees for in any other provision of this Agreement transferable licenses and permits which are assigned to Buyer, shall be adjusted prorated.
(b) General real estate taxes shall be prorated, using for such purpose the rate and valuation shown on the last available tax duplicate, but subject to further adjustment as provided below. Except If any real estate taxes prorated at Closing or assessments paid by Seller (as otherwise set forth hereinbelow) are later increased for any reason whatsoever, all items including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being greater than those shown on the tax duplicate available at Closing or because of any additions or corrections to be prorated pursuant to this Paragraph shall be prorated as the tax duplicate assessed by reason of the Closing Date, with Buyer to be treated as the owner Buyer's acquisition of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and then Seller shall be entitled to cancel promptly pay all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and such increases allocable to the period prior to the Closing Date and Seller shall be determined protect, indemnify, defend, and hold Buyer harmless from and against all such real estate tax and assessment increases, which obligations on the part of the Seller shall survive the Closing. If any real estate taxes prorated at Closing or assessments paid by Seller (as set forth below) are later decreased for any reason whatsoever, including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being less than those shown on the tax duplicate available at Closing or because of any corrections t o the tax duplicate assessed by reason of Buyer's acquisition of the Property or because of any post-Closing reduction in, or refund or rebate of, any taxes relating wholly or in part to a period before the Closing, if possiblethen Buyer shall promptly pay to Seller the savings allocable to the period prior to the Closing (less any costs incurred by Buyer to any unaffiliated third parties in connection with obtaining the reduction of such tax xxxx), or which obligation shall survive the Closing. Any special assessments that are a lien on the Property as of the date of this Agreement shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately without proration. Any special assessments that become a lien on the Property after the same have been determined. Buyer and date of this Agreement shall be paid as follows: Seller shall pay all installments that are due and payable prior to the extent necessary enter into an agreement Closing Date and Buyer shall pay all installments that become due and payable on or after the Closing Date.
(c) Collected rents shall be prorated based upon the total rent roll payable for the month in which Closing occurs. In the event that Buyer receives current rent from any tenants for the month in which the Closing occurs, then Buyer shall deliver to Seller (outside of escrow) the portion of such effect at Closingcurrent rents attributable to periods prior to the Adjustment Date. Seller shall attempt to have all utility meters read Additionally, in the event that any tenant, who as of the Closing Date. Seller shall further attempt is delinquent in the rental payments due Seller, delivers to obtain from the provider of same, all other service statements and bills of account adjusted as Buyer a rent check in an amount in excess of the Closing Date. Seller rent due Buyer for the month for which such check is delivered, Buyer shall be entitled allocate such excess first to refunds of all depositspay reasonable outside collection costs, if any, paid by to unaffiliated third parties, then to pay rents which become due after Closing, then pay remaining funds to Seller or Seller's predecessor-in-interest for any rents delinquent prior to Closing and held by entities providing were due as of the date such servicepayment was received; provided, orhowever, at in no event shall Buyer be obligated to collect delinquent rents on Seller's option, behalf.
(d) Final readings and final xxxxxxxx for utilities shall be made as of the Adjustment Date. Seller shall transfer pay all outstanding amounts due as of Seller's rightsuch time, title and interest in and to or such deposits amounts shall be credited to Buyer at Closing Closing. If final readings and shall receive a full credit for xxxxxxxx cannot be obtained prior to Closing, the amount of such deposits. All Contracts and other obligations in connection with the Propertyfinal bills, to the extent the same are intended to be assumed hereunderwhen received, shall be prorated as of the Closing DateAdjustment Date and the Title Company shall hold in escrow an amount equal to 125% of the reasonably anticipated amount of such xxxxxxxx, based upon the most recent available xxxxxxxx for similar periods until the Title Company shall have received notice of payment of such bills, at which time any remaining amount being withheld for such purpose shall be distributed to the Seller.
(be) Special assessments Buyer shall receive a credit at Closing for all deposits, including security deposits, under the Tenant Leases which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal delivered or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyerassigned to Buyer at Closing.
(cf) Seller S e l l er shall pay the cost of State and County transfer taxes or stamps imposed in connection with this transaction the recordation following closing costs: (i) any state or local real or personal property transfer taxes, documentary stamps, fees or other charges relating to the transfer of the Deeds for Property or the Real Propertyassumption of the Mortgage Indebtedness and (ii) the real estate brokerage commission of Marcus & Millichap. Buyer shall pay in connection with this transaction the expense following closing costs: (i) all recording f e e s, (ii) the costs of the title searchesTitle Policy and all endorsements thereto and (iii) all escrow charges. Each party shall pay its own attorneys' fees. All closing costs allocable to Seller, title premiums and including, without limitation, any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired prorations to which Buyer may be entitled by Buyer. Buyer agrees to pay the expense reason of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date foregoing shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with against the interest due thereon, if any and if required under the terms balance of the Lease or as required by applicable law, shall either Purchase Price to be credited or transferred to Buyer paid at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then.
Appears in 1 contract
Samples: Purchase Agreement (Associated Estates Realty Corp)
Prorations and Closing Costs. 5.1 - Prorations. All matters involving prorations items of income and expense (collectively, the "Prorated Items") shall be paid, prorated or adjustments adjusted as of midnight on the date prior to the Closing Date (the "Proration Date") in the manner hereinafter set forth:
(a) Buyer shall be made in connection credited with the Closing amount of each of the following: (i) all rents received (i.e. collected) by Seller or its agents and not specifically provided for in attributable to any other provision of this Agreement period commencing after the Proration Date; (ii) tenant improvement allowances that remain unpaid and are shown on Schedule 1 (which Schedule shall be adjusted updated by Seller at Closing); (iii) leasing commissions that remain unpaid and are shown on Schedule 2 (which Schedule shall be updated by Seller at Closing); (iv) all expense contributions and other required payments, real estate tax contributions to pay for Taxes (as provided below. Except as otherwise set forth hereinhereinafter defined), and other payments and reimbursements of whatever nature or kind from Tenants received by Seller or its agents and attributable to any period commencing after the Proration Date (collectively, the "Tenant Contributions"); (v) all items cash security deposits that remain unapplied and are shown on Schedule 3 (which Schedule shall be updated by Seller at Closing) (collectively, the "Security Deposits"); and (vi) all amounts paid to be prorated the Seller pursuant to this Paragraph any Leases and held by Seller in reserve accounts to fund future repairs or replacements.
(b) All Prorated Items for the month of Closing shall be prorated between Buyer and Seller based upon their respective actual days of ownership for such month in which the Closing occurs. Except for any Security Deposits, neither Buyer nor Seller shall receive credit at Closing for any Prorated Items due and not paid as of the Proration Date. At the time of the final calculation and collection from Tenants of Tenant Contributions, whether in the nature of a reconciliation payment or full payment, in arrears, there shall be a reproration between Buyer and Seller as to the Tenant Contributions not later than one hundred eighty (180) days after the Closing Date (the "Outside Reproration Date"). The reproration of the Tenant Contributions and the reproration of real estate tax contributions shall be made on the basis of a per diem method of allocation. Each party covenants to provide the other with any information in its possession necessary to finalize such calculation.
(c) Percentage rent, with if any, shall be prorated between Buyer to be treated as and Seller by utilizing the owner percentage rent payable for such lease year based upon the actual days of ownership of the Property. There shall be no adjustment for percentage rent payments until after the receipt of any percentage rent payments made by the respective Tenants. Percentage rent payments shall be reprorated for each Tenant promptly after receipt of the final annual sales report and percentage rent payment from such Tenant for the lease year in which the Proration Date occurs, but in no event shall such reproration occur later than the Outside Reproration Date.
(d) Any amounts received from Tenants after Closing shall be applied on a Tenant-by-Tenant basis in the following order: (i) first, on account of any amount currently due Buyer from such Tenant(s); (ii) next, to Buyer for purposes Buyer’s actual out-of-pocket costs, if any, of prorations collection of income such amounts; and (iii) on the account of any amount due Seller. Any of the foregoing amounts due to Seller shall be paid not later than the Outside Reproration Date. Seller shall have no right to seek judgments or other relief against Tenants after Closing without the Buyer’s prior written approval, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, with respect to the matters set forth on Schedule 6 attached hereto, Seller shall retain the right, at Seller's cost and expense, to seek and obtain any judgment or other relief requested as of the Effective Date against such Tenants after Closing.
(e) Operating expenses, including permits, licenses, membership dues, contributions to promotional or similar funds, merchant association dues, gift program expenses and all other kinds of expenses and liabilities relating to the Property which were required to be paid by Seller prior to Closing and required to be paid by the Buyer after Closing, and any prepaid expenses, to the extent same are being purchased by Buyer, shall be prorated between Buyer and Seller based upon the actual expenses or reasonable estimates.
(f) Notwithstanding anything herein to the contrary, Seller represents and warrants that all real estate taxes and assessments ("Taxes") for the Property currently due and payable for the calendar year 2011 and for all prior years have been paid prior to the date hereof. Any portion of the Taxes for the calendar year 2011 not yet due and payable and for which Tenants are not responsible under the Leases ("Landlord’s Portion of Taxes") shall be prorated between Seller and Buyer based upon the actual days of ownership of the parties for the year in which Closing occurs utilizing the most recent ascertainable tax xxxx(s). Seller and Buyer agree to reprorate Landlord’s Portion of Taxes upon Buyer’s receipt of the actual tax xxxx for the tax year in question, if any, but in no event shall such reproration occur after the Outside Reproration Date. All refunds of Taxes resulting from any real property tax appeal for the tax year in which the Proration Date occurs shall be: (i) allocated to amounts to be rebated to Tenants if required by a Lease and only to the extent so required, and the amount so allocated shall be forwarded to Buyer and Buyer agrees to promptly rebate the amount due to such Tenants; (ii) allocated to Seller to the extent that the amount refunded (and not allocated to amounts to be rebated to Tenants) is attributable to periods prior to the Proration Date, and such allocated amounts are to be held and/or distributed as specified in Section 5.1(i); and (iii) payable to Buyer to the extent that the amount refunded (and not allocated to amounts to be rebated to Tenants) is attributable to periods commencing after the Proration Date. Notwithstanding the foregoing, Buyer shall receive a credit from Seller for all sums representing contributions of Taxes received by Seller or its agents from any Tenants and attributable to any period prior to the Proration Date, which have not been applied toward the payment of Taxes.
(g) Seller shall pay all utility charges attributable to the Real Property through the Proration Date (except for those utility charges and operating expenses payable by Tenants in accordance with the Leases) and Buyer shall pay all utility charges and other operating expenses attributable to the Real Property after the Proration Date. Meters for all public utilities (including water) being used on the Real Property shall be ordered read by Seller on the Proration Date and after all charges incurred prior to the Proration Date shall be paid by Seller. To the extent that the amount of actual consumption of any utility services is not determined (or cannot be reasonably determined) prior to the Proration Date, a proration shall be made at Closing based on the last available reading and post-closing adjustments between Buyer and Seller shall be made within twenty (20) days of the date that actual consumption for such pre-Closing period is determined. Seller shall not assign to Buyer any deposits which Seller has with any of the utility services or companies servicing the Real Property. Buyer shall arrange with such services and companies to have accounts opened in Buyer’s name beginning at 12:01 a.m. on the Closing Date.
(ah) Real estate taxes and all All other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year items which are customarily prorated in transactions in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes rental real estate is purchased and sold, and which are not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection otherwise dealt with the Property, to the extent the same are intended to be assumed hereunderherein, shall be prorated as of the Closing Proration Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(ci) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay prepare a closing settlement statement (the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below"Closing Statement") shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date that shall reflect the purchase and sale of the Property and all prorations and adjustments, all as referenced in Section 2(b) of this Agreement. A copy of the Closing Statement agreed upon by Seller and Buyer shall be executed by both the Seller and Buyer and delivered to the Escrow Agent at the Closing. All rents and other payments received by Seller after the Proration Date shall be immediately forwarded and endorsed over to Buyer, subject to the provisions set forth above.
(j) In the event any prorations or computations made under this Section 5.1 which are based on estimates, prove to be incorrect or require the passage of time in order to obtain sufficient information (i.e. gross sales reports for the calculation of percentage rent), then either party shall be have the right, prior to the Outside Reproration Date; , to prepare and thendeliver a revised schedule of adjustments (a "Reconciliation Statement"), which shall include tenant invoice calculations and reasonable operating expense invoice backup. Within thirty (30) days following delivery of a Reconciliation Statement, Seller and Buyer shall work in good faith to resolve any outstanding items with respect to such Reconciliation Statement. Upon approval of the Reconciliation Statement, Buyer or Seller, as applicable, shall remit any amounts due to the other within fifteen (15) days.
Appears in 1 contract
Prorations and Closing Costs. All matters involving (a) Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date, in accordance with the applicable provisions of this Section 9.6, the following (collectively, the “Proration Items”): Taxes, Personal Property taxes and utility bills, including water and sewer charges (except as hereinafter provided). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including 11:59 p.m. on the day immediately preceding the Closing Date, and Buyer will be charged and credited for all of the Proration Items relating to the period after the Closing Date. Such preliminary estimated Closing prorations or adjustments shall be set forth on a preliminary closing statement to be made in connection with prepared by Seller and submitted to Buyer for Buyer's reasonable approval prior to the Closing and not specifically Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for in any other provision of this Agreement below. The preliminary proration shall be adjusted as provided below. Except as otherwise set forth herein, all items paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be prorated pursuant to this Paragraph shall be prorated delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, with Buyer to the prorations will be treated as made at Closing on the owner basis of the Propertybest evidence then available; thereafter, when actual figures are received (not to exceed 120 days after Closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be assigned to Buyer. Final readings and final xxxxxxxx for purposes utilities will be made if possible as of prorations 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 utility providers, and Buyer will be obligated to make its own arrangements for future deposits with the utility providers. The provisions of income this Section 9.6(a) will survive the Closing for twelve (12) months.
(b) [Intentionally omitted]
(c) Real estate taxes and expensesany and all other municipal or county special assessments levied or imposed upon the Real Property (“Taxes”) in respect of the current fiscal year of the applicable taxing authority in which the Closing Date occurs (the “Current Tax Year”), shall be apportioned on a per diem basis based upon the number of days in the Current Tax Year prior to the Closing Date (which shall be allocated to Seller) and the number of days in the Current Tax Year on and after the Closing Date (which shall be allocated to Buyer). If the Closing shall occur before the tax bills for the Current Tax Year are available, the apportionment of real estate taxes shall be upon the basis of the tax xxxx for the next preceding fiscal period applied to the latest assessed valuation shown on the such tax xxxx. Promptly after the tax xxxx for the fiscal period in which the Closing takes place are made available, the apportionment of real estate taxes shall be recomputed. Upon the Closing Date, Buyer shall be responsible for Taxes levied or imposed upon the Real Property payable in respect of the Current Tax Year from and after the Closing Date and Seller shall be responsible for Taxes levied or imposed upon the Real Property prior to the Closing Date. In no event shall Seller be charged with or be responsible for any increase in Taxes levied or imposed upon the Property resulting from the transfer of the Property herein contemplated or from any improvements made at any time after the Closing Date. In the event that any real property assessments levied or imposed upon the Property are payable in installments, the proration made hereunder shall be made on the assumption that such assessments are paid over the longest permitted term. The provisions of this Section 9.6(c) shall survive the Closing.
(d) [Intentionally omitted]
(e) At Closing, Seller shall pay (a) Real estate taxes all transfer taxes, deed stamps or similar amounts, (b) all recording fees, and all other ad valorem taxes(c) the premium for the CLTA portion of the Title Policy and the costs of any endorsements Buyer may require in accordance with Section 4.3. Buyer shall pay (a) the Escrow Agent's escrow fee, if any, and (b) the premium for the ALTA portion of the Title Policy. Seller shall pay all costs with regard to the repayment of the existing loan with respect to the Real Property Property.
(f) Buyer and Seller shall apportion charges and fees due under Contracts for the applicable fiscal or calendar year supply to the Property of heat, water, steam, electric power, gas and any other utilities, and telephone, if any, in respect of the billing period of the related service provider in which the Closing Date occurs shall be prorated (the “Current Billing Period”) on a per diem basis. If basis based upon the amount number of such taxes is not known on days in the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period Current Billing Period prior to the Closing Date (which shall be determined allocated to Seller) and paid by Seller before Closing, if possible, or the number of days in the Current Billing Period on and after the Closing Date (which shall be paid promptly thereafter by Seller or adjusted between Buyer allocated to Buyer) and Seller immediately after assuming that all charges are incurred uniformly during the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of Current Billing Period (it being agreed that all deposits, if any, paid made by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing as security under any such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date public service contracts shall be credited to Buyer at Seller if such amounts remain on deposit after the Closing on for the benefit of Buyer; provided, however, that Seller shall be entitled in their sole discretion to receive a per diem basis. In addition, any refund of such security deposits held directly from any such service provider without credit to Buyer). Calculations hereunder shall be based upon the most recent invoice rendered to Seller by Seller for any Leasethe applicable service provider and, together with after an actual xxxx covering the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent period ending on the Closing DateDate is received, rents received from the apportionment of such tenant ninety (90) days after the Closing Date charges hereunder shall be applied recomputed. The provisions of this Section 9.6(f) shall survive the Closing. All other items customarily apportioned in connection with sales of properties similar to the Property in the following order State of priority: (a) to the Buyer, so long as such tenant is California and for which this Agreement does not otherwise provide express instructions shall be apportioned in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and thenaccordance with local custom.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Dolby Laboratories, Inc.)
Prorations and Closing Costs. All matters involving (a) Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the "Adjustment Date"), the following (collectively, the "Proration Items"): Impositions, utility and fuel bills, collected Rents (subject to the terms of Section (b) below), Operating Expenses, Additional Rents (subject to the terms of Sections (c) and (d) below) and Percentage Rents (subject to the terms of Section (e) below). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Adjustment Date, and Buyer will be charged and credited for all of the Proration Items relating to the period from and after the Adjustment Date. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Buyer for Buyer's reasonable approval at least five (5) business days prior to the Closing Date (the "Adjustment Statement"). Seller and Buyer shall enter into any proration agreements reasonably necessary to give effect to the provisions of this Section 9.9. The Adjustment Statement, once agreed upon, shall be signed by Buyer and Seller and delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at the Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at the Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or adjustments by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations shall be made at the Closing on the basis of the best evidence then available; thereafter, when actual figures are received (not to exceed twelve (12) months after Closing), re-prorations shall be made on the basis of the actual figures, and a final cash settlement shall be made between Seller and Buyer. No prorations shall be made in relation to insurance premiums, and Seller's insurance policies shall not be assigned to Buyer (except for the obligations, if any, to assign insurance proceeds to Buyer under Section 10.2). Final readings and final xxxxxxxx for utilities shall be made if possible as of the Closing Date, in which event no proration shall be made at the Closing with respect to utility bills. Seller shall be entitled to all deposits presently in effect with the utility providers, and Buyer shall be obligated to make its own arrangements for deposits with the utility providers. The provisions of this Section 9.9(a) shall survive the Closing for twelve (12) months.
(b) Buyer shall receive a credit on the Adjustment Statement for the prorated amount as of the Adjustment Date for all Rents and Additional Rent (as hereinafter defined) previously paid to or collected by Seller and attributable to any period following the Adjustment Date, including any portion of the month in which the Closing takes place. Rents and Additional Rents are "Delinquent" when they were due prior to the Adjustment Date, and payment thereof has not been made on or before the Adjustment Date. Delinquent Rents and Delinquent Additional Rents shall not be prorated. All sums collected by Buyer from and after the Closing from any Tenant shall be applied first to Rents and Additional Rents and any other amounts owed by such Tenant to Buyer for any period following the Adjustment Date, with any remaining sums paid to Seller to the extent Seller is then owed Delinquent Rent and Additional Rent by such Tenant. Any sums due Seller and collected by Buyer shall be promptly remitted to Seller. Buyer shall have no obligation to collect Delinquent Rent or Additional Rent for and on behalf of Seller but shall not waive or settle any such delinquency and Seller hereby retains the right to pursue the collection of Delinquent Rent and Additional Rent for periods attributable to Seller's ownership of the Property; provided, however, that Seller may not disturb the possession of such Tenant by bringing an eviction action, Buyer shall incur no costs or expenses in connection with such enforcement by Seller and Seller shall not institute an action to collect such Delinquent Rents or Delinquent Additional Rents prior to the date which is ninety (90) days following the Closing and not specifically provided for in any other provision Date The provisions of this Agreement Section 9.9(b) shall be adjusted survive the Closing for one (1) year. Seller, at least five (5) business days prior to the Closing Date, shall deliver to Buyer a schedule of all Tenants which are delinquent in the payment of Rent and Additional Rent, setting forth the amount of the delinquency, the period to which such delinquency relates and the nature of the amount due from such Tenant. In addition, Seller shall deliver to Buyer at such time a list of each Tenant which paid percentage rent or overage rent based on sales or gross income during the fiscal year in which the Closing occurs and the amount paid by such Tenant as provided below. Except as otherwise set forth herein, all items of the Adjustment Date.
(c) All Rents and Additional Rents which have been received in respect to be prorated pursuant to this Paragraph the month in which the Closing occurs (the "Current Month") shall be prorated as of the Closing Adjustment Date, with Buyer to be treated . Such Rents and Additional Rents for the Current Month which have been received as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs Date shall be prorated on a per diem basis. If basis based upon the amount number of such taxes is days in the Current Month prior to, but not known on including, the Closing Date (which shall be allocated to Seller) and the number of days in the Current Month from and after the Closing Date (which shall be allocated to Buyer).
(d) At least five (5) business days prior to the Closing Date, taxes will Seller shall cause to be prorated prepared and delivered to Buyer a reconciliation (the "Additional Rents Reconciliation") of (i) actual operating and similar expense of the Property upon which Additional Rents are based (the "Additional Rents Expenses") for the period commencing on January 1, 2003 and ending on the basis last day of the most recently ascertainable tax xxxx. There Current Month (the "Additional Rents Reconciliation Period"), it being understood that certain Additional Rents Expenses for the Additional Rents Reconciliation Period, if not based on actual amounts (such as certain operating expenses for the Current Month), may be reasonably estimated by Seller; and (ii) Additional Rents collected by Seller for that portion of the Additional Rents Reconciliation Period prior to the Current Month and Additional Rents payable for the Current Month, which Additional Rents Reconciliation shall be no proration subject to Buyer's reasonable approval. Once the Additional Rents Reconciliation has been approved, any amount shown to be owed by Seller to the Tenants under the Additional Rents Reconciliation shall be credited to Buyer at the Closing, and any amounts shown to be owed to Seller by the Tenants under the Additional Rents Reconciliation shall be credited to Seller at the Closing on a preliminary basis, subject to final reconciliations, as hereinafter provided. For purposes of Seller's insurance premiums this Section (d), "Additional Rents" shall mean any and all amounts due from the Tenants for Operating Expenses and any other Tenant charges other than Rents. Notwithstanding the foregoing, with respect to that portion of Additional Rents which are billed on an index-based formula or assignment on an estimated basis during the fiscal or other period for which paid, at the end of Seller's insurance policies such fiscal or other period Buyer and Seller shall be entitled cooperate in good faith to cancel all determine whether the items in question have been over billed or under billed (or over- or under-estimated, as applicable). If there has been an over billing or over-estimation and an over billed/estimated amount has been received, Seller shall, promptly after request by Buyer, pay to Buyer the portion of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and such over billed/estimated amount which is properly allocable to the period prior to the Closing Date shall be determined Adjustment Date, and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after shall reimburse the same have been determinedentire over billed/estimated amount to the Tenants and/or Adjoining Owners which paid the same. Buyer and In addition, Seller shall reimburse Buyer for any costs incurred by Buyer in connection with any audit by a Tenant that reveals such over billed/estimated amount, to the extent necessary enter into Seller over billed any such amount. The sums payable by Seller pursuant to the two immediately preceding sentences shall not be subject to the time limitations set forth in Section 6.2 or 9.9(a) or (b). If there has been an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of under billing or under-estimation, the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller additional amount shall be entitled billed by Buyer to refunds the Tenants and Adjoining Owners, as applicable, and any amount received by Buyer, net of all depositscosts of collection, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent properly allocable to periods prior to the same are intended to be assumed hereunder, Adjustment Date shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall promptly be paid by Buyer to Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searchesuse commercially reasonable efforts to collect all such under xxxxxxxx, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees but shall not be required to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyerinstitute litigation.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then
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Prorations and Closing Costs. All matters involving prorations or adjustments to be made to the Consideration in connection with the Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing Date, with Buyer the Partnership to be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of SellerPWCCW's insurance premiums or assignment of SellerPWCCW's insurance policies and Seller PWCCW shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer The Partnership shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller PWCCW before Closing, if possible, or shall be paid promptly thereafter by Seller PWCCW or adjusted between Buyer the Partnership and Seller PWCCW immediately after the same have been determined. Buyer The Partnership and Seller PWCCW shall to the extent necessary enter into an agreement to such effect at Closing. Seller PWCCW shall attempt to have all utility meters read as of the Closing Date. Seller PWCCW shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller PWCCW shall be entitled to refunds of all deposits, if any, paid by Seller PWCCW or SellerPWCCW's predecessor-in-interest prior to Closing and held by entities providing such service, or, at SellerPWCCW's option, Seller PWCCW shall transfer all of SellerPWCCW's right, title and interest in and to such deposits to Buyer the Partnership at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by SellerPWCCW. Special assessments which have been filed as a lien against any of the Real Property Property, but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyerthe Partnership. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyerthe Partnership.
(c) Seller PWCCW shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer The Partnership shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyerthe Partnership. Buyer The Partnership agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyerthe Partnership's Due Diligence Activities (as defined below) shall be borne solely by Buyerthe Partnership.
(d) Any base, minimum or similar rents under the Leases collected by Seller PWCCW for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer the Partnership at Closing on a per diem basis. In addition, any security deposits held by Seller PWCCW for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer the Partnership at Closing at SellerPWCCW's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the BuyerPartnership, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller PWCCW for all rent in arrears prior to the Closing Date; and thenthen (c) to the Partnership with no further claim by PWCCW thereto. Except as herein provided, the Partnership is not under any obligation to collect rents in arrears for the benefit of PWCCW. Any rents which are delinquent or otherwise not paid at the time of Closing, and collected by the Partnership or PWCCW within ninety (90) days after Closing shall be apportioned as aforesaid and the portion to which PWCCW is entitled shall be promptly remitted by the Partnership to PWCCW. PWCCW shall have no claim to rents collected ninety (90) days after the Closing Date. PWCCW retains the right to pursue its remedies against Tenants after Closing for any delinquent rents or other amounts owed to PWCCW (other than proceedings to evict Tenant or terminate its lease). The Partnership shall not enter into any agreement pursuant to which any sums owed to PWCCW in respect of any Lease for periods prior to the Closing are reduced, modified or waived. The Partnership's obligations to collect rent arrearages shall be limited to commercially reasonable efforts, and the Partnership shall under no circumstance be required to commence litigation against any Tenant to collect the same.
(e) All leasing commissions due or to become due prior to the Closing Date for any Leases entered into before the date hereof and all amendments, renewals and modifications thereof entered into before the date hereof, shall be paid by PWCCW without contribution by, or reimbursement from, the Partnership. At Closing, the Partnership shall pay or reimburse PWCCW for any leasing commissions due or to become due prior to Closing for any Leases and for any amendments, modifications or renewals of any Leases entered into after the date hereof which are entered into in accordance with the provisions of Paragraph 15(e) hereof. The Partnership shall expressly assume and be solely obligated to pay all leasing commissions payable under all Leases entered into prior to the date hereof (including all amendments, renewals and modifications thereof) which are first due or payable on or after the Closing Date, regardless of the date on which such Leases (including all amendments, renewals and modifications thereof) were executed or any of the leasing commissions therefor earned, subject only to the Partnership's right to approve any new Leases or amendments, discretionary renewals or modifications of any Leases which are not otherwise permitted pursuant to Paragraph 15(e), below. PWCCW shall be responsible for the costs of, and shall pay or perform prior to Closing any tenant improvements and allowances for work performed or required to be performed (or paid, as applicable) prior to the Closing Date by or on behalf of PWCCW for all Leases (including all amendments, renewals and modifications thereof) entered into on or before the date of this Agreement for any of the Real Property. The Partnership shall assume, pay or reimburse (as applicable) PWCCW on the Closing Date for the costs of any tenant improvements and allowances for work to first be performed after the Closing Date pursuant to Leases (including all amendments, renewals and modifications thereof) entered into prior to the date of this Agreement; and all costs of tenant improvements and allowances incurred by or on behalf of PWCCW in connection with any Leases (including all amendments, renewals and modifications thereof) entered into after the date of this Agreement for any of the Real Property, provided the same were approved by the Partnership or are otherwise permitted as set forth in Paragraph 15(e) hereof and provided that such costs are set forth on Exhibit "C" hereto.
(f) Amounts paid or payable as fees or expenses under any of the Licenses assigned at Closing, shall be prorated as of the Closing Date but all amounts refundable under unassigned and unassignable Licenses shall belong to PWCCW.
(g) PWCCW shall be solely responsible for the payment of any "roll back taxes" assessed or imposed upon any of the Real Property under the "Farmland Assessment Act of 1964," Chapter 58, Laws of 1964, N.J.S.A. 54:4 23-1 et seq., as amended or otherwise, which relate to any period prior to the Closing Date, and PWCCW agrees to indemnify, defend and save the Partnership harmless (including attorneys' fees) from and against any claim for such taxes.
(h) Miscellaneous income including, without limitation, telephone and vending machine income, if any, shall be prorated as of the Closing Date.
(i) All of the provisions of this Paragraph 7 and PWCCW's and the Partnership's respective rights and obligations hereunder shall survive the Closing.
Appears in 1 contract
Prorations and Closing Costs. All matters involving prorations or adjustments to be made to the Consideration in connection with the Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing Date, in connection with Buyer to be treated as the owner of the PropertyInitial Contribution, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of SellerFirst Commercial's insurance premiums or assignment of SellerFirst Commercial's insurance policies and Seller First Commercial shall be entitled to cancel all of its existing policies as of the Closing DateDate with any unexpired premiums, which are refunded by the insurers, being repaid to the Members. Buyer The Partnership shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller First Commercial before Closing, if possible, or shall be paid promptly thereafter by Seller the Members or adjusted between Buyer the Partnership and Seller the Members immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller First Commercial shall attempt to have all utility meters read as of the Closing Date. Seller First Commercial shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller The Members shall be entitled to refunds of all deposits, if any, paid by Seller First Commercial or SellerFirst Commercial's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's optionthe option of the Members, Seller the Members shall transfer all of Seller's rightagree that, title and interest in and to First Commercial may retain such deposits to Buyer at after Closing and in which case the Members shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by SellerFirst Commercial on or before the Closing. Special assessments which have been filed as a lien against any of the Real Property Property, but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyerthe Partnership. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyerthe Partnership.
(c) Seller shall pay The parties intend that the cost transactions under this Agreement not be subject to the real estate transfer tax or stamps of State the Commonwealth of Pennsylvania and County East Pennsboro Township and Susquehanna Township. To the extent that state and local transfer taxes or stamps are imposed in connection with the recordation transactions under this Agreement for any reason whatsoever, the cost of such taxes or stamps shall be borne one-half by the Deeds for Partnership and one-half by the Real PropertyMembers. Buyer The Partnership shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyerthe Partnership. Buyer Each party agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyerthe Partnership's Due Diligence Activities (as defined below) shall be borne solely by Buyerthe Partnership.
(d) Any base, minimum or similar rents under the Leases collected by Seller First Commercial on or before the Closing for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer the Partnership at Closing on a per diem basis. In addition, any security deposits held by Seller First Commercial for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited to or transferred to Buyer the Partnership at Closing at Seller's optionClosing. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant within ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the BuyerPartnership, for current unpaid rents and for so long as current rent is due and payable and such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller the Members for all rent in arrears prior to the Closing Date; and thenthen (c) to the Partnership with no further claim by the Members thereto.
(i) Except as herein provided, after Closing, First Commercial and the Partnership are not under any obligation to collect rents in arrears for the benefit of the
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Prorations and Closing Costs. (a) All matters involving prorations or adjustments to be made income and expenses in connection with the operation of the Property shall be apportioned, as of 11:59 p.m. on the date prior to the Closing Date (the “Adjustment Date”), such that, except as otherwise expressly provided to the contrary in this Agreement, (i) Seller shall have the benefit of income and the burden of expenses before and on the Adjustment Date and (ii) Purchaser shall have the benefit of income and the burden of expenses for the Closing Date and thereafter. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. The items below will be prorated at Closing utilizing the information known at that time:
(i) rents, if any, based on the amounts collected and attributable to the current month of Closing and not specifically provided for such current month rents shall be allocated to the current month and then to any period prior to Closing to the extent applicable. The term “rents” as used in any other provision of this Agreement includes all payments due and payable by tenants under any Leases, including, any additional rents, percentage rents, CAM charges, late charges or other fees or reimbursements paid by tenants under any Leases;
(ii) ad valorem taxes and assessments levied against the Property, which shall be adjusted prorated as provided below. Except as otherwise set forth hereinin Section 9.6(b)(i) hereof;
(iii) gas, all items electricity and other utility charges for which Seller is liable, if any, such charges to be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing or an estimate based on the latest available xxxx, tenant reimbursements for such matters are addressed by the rent proration provisions. Seller shall receive a credit for any utility deposits in place for the benefit of Seller at closing but only to the extent that such deposit remains outstanding for the benefit of Purchaser and the Property after closing;
(iv) all accrued liabilities and accounts payable relating to the ownership, operation and management of the Property, calculated by the parties acting reasonably in accordance with generally accepted accounting principles;
(v) all Seller business interruption insurance proceeds (including without limitation any rental interruption insurance proceeds); and
(b) Notwithstanding the foregoing:
(i) All property taxes and assessments which accrued for the 2014 tax year and which are payable during the 2014 calendar year by the owner of record shall be prorated pursuant based upon the property tax and assessment bills for 2014 (plus an amount equal to this Paragraph the maximum lawful year‐to‐year increases in those taxes and assessments). Seller shall be debited an amount equal to such taxes and assessments to the extent allocable to the period which precedes the Closing Date. Seller shall have no liability for the remaining balance of all such taxes and assessments. To the extent that the actual taxes and assessments for the current tax year differ from the amount apportioned at Closing, the parties shall make all necessary adjustments by appropriate payments between themselves following Closing upon the availability of the final tax bills.
(ii) All Additional Rents (as defined below) which have been received in respect to the month in which the Closing Date occurs (the "Current Month") shall be prorated as of the Closing Date, with Buyer to be treated . Such Additional Rents for the Current Month which have been received as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs Date shall be prorated on a per diem basisbasis based upon the number of days in the Current Month prior to, but not including, the Closing Date (which shall be allocated to Seller) and the number of days in the Current Month from and after the Closing Date (which shall be allocated to Purchaser). If the amount of such taxes is not known on Purchaser shall be solely responsible, after the Closing Date, taxes will be prorated for collecting unpaid Additional Rents. Additional Rents for calendar year 2014 are paid on an estimated basis in monthly installments. Before the Effective Date, Seller has prepared and delivered to Purchaser a reconciliation ("Additional Rents Reconciliation") of (i) actual operating and similar expense of the Property upon which Additional Rents are based ("Additional Rent Expenses") for the period commencing on January 1, 2014 and ending on the basis last day of the most recently ascertainable tax xxxxCurrent Month ("Additional Rents Reconciliation Period"), it being understood that certain Additional Rents Expenses for the Additional Rents Reconciliation Period, if not based on actual amounts (such as certain operating expenses for the Current Month), may be reasonably estimated by Seller; and (ii) Additional Rents collected by Seller for that portion of the Additional Rents Reconciliation Period prior to the Current Month and Additional Rents payable for the Current Month. There Any amount shown to be owed by Seller to the tenants of the Property under the Additional Rents Reconciliation shall be no proration credited to Purchaser at the Closing, and any amounts shown to be owed to Seller by Tenants of Seller's insurance premiums or assignment of Seller's insurance policies and Seller the Property under the Additional Rents Reconciliation shall be entitled credited to cancel Seller at the Closing. For purposes of hereof, "Additional Rents" shall mean any and all amounts reimbursable by tenants under the terms of its existing policies the Leases, licensees under the terms of their licenses, parties to reciprocal easement and/or operating agreements under the terms of such agreements or other parties under the terms of their agreements with Seller, in each case for common area maintenance expenses, operating expenses and other expenses for or pertaining to the Property.
(iii) The parties shall prorate, as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of , all telephoneother common area maintenance expenses, electric, sewer, water operating expenses and other utility bills, trash removal bills, janitorial and maintenance service bills relating expenses for or pertaining to the Property (“Operating Expenses”), including, but not limited to, public utility charges, maintenance costs, prepaid expenses and other expenses under maintenance, service and equipment contracts that are not, in each case, payable by any tenants. Pursuant to such proration, Purchaser shall receive a credit against the Purchase Price equal to the amount of Operating Expenses allocable to the period of time prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining remain unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien Purchaser is obligated to pay after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay receive a credit equal to the cost amount of State Operating Expenses allocable to the Closing Date and County transfer taxes or stamps imposed in connection with any period of time thereafter which are paid prior to the recordation Closing Date. If the amount of any Operating Expenses is not known as of the Deeds for Closing Date, Seller shall estimate such amount in good faith based upon the Real Propertymost current information available to Seller. Buyer shall Purchaser hereby assumes and agrees in favor of Seller timely to perform the obligation to pay the expense any Operating Expenses which remain unpaid as of the title searches, title premiums Closing Date and any other title insurance costs on the owner's title insurance policies for which Purchaser receives a credit under this section (iv) Unpaid and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar delinquent rents under the Leases collected by Seller for a rental period or portion thereof from or and/or Purchaser after the Closing Date shall be credited delivered as follows: all rents received from and after the Closing Date, if not otherwise designated by the tenant paying such rent, shall be applied first to Buyer at current rent obligations, then to any delinquent rent obligations that are applicable to the period after Closing on a per diem basisthe Closing, and then to delinquent rent obligations that are applicable to the period prior to Closing. After the Closing, Purchaser shall use reasonable efforts to collect all rents in the usual course of operation of the Property, but Purchaser will not be obligated to institute any lawsuit or other collection procedures to collect delinquent rents. In addition, Seller hereby retains the right to pursue any security deposits held by tenant under the Leases for any sums due such Seller for any Lease, together with the interest due thereon, if any and if required under the terms periods attributable to such Seller's ownership of the Lease or as Property; provided, however, Seller (i) shall be required by applicable law, shall either be credited or transferred to Buyer at Closing at notify Purchaser in writing of Seller's option. If intention to commence or pursue any legal proceedings; (ii) shall only be permitted to commence or pursue legal proceedings after the date which is three (3) months after Closing; and (iii) shall not be permitted to commence or pursue any legal proceedings against any tenant is in arrears in the payment seeking eviction of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days or the termination of the underlying Lease. In the event that there shall be any rents or other charges under any Leases which, although relating to a period prior to the Closing, do not become due and payable until after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears are paid prior to the Closing Date; but are subject to adjustment after the Closing, then any rents or charges of such type received subsequent to the Closing shall, to the extent applicable to a period extending through the Closing, be prorated between Seller and thenPurchaser as of the Closing and Seller’s share thereof shall be remitted promptly to Seller by Purchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Prorations and Closing Costs. All matters involving prorations or adjustments to be made in connection with the Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem There shall be no proration of any real or personal property taxes, bond installments or assessments, including, without limitation, supplemental taxes, if any, water, sewer or utility charges, or any other expenses normal to the operation and maintenance of the Property at Closing. Seller shall be responsible for the payment of all such taxes and expenses prior to Closing under this Agreement and Seller shall be responsible for the payment of all such taxes and expenses subsequent to Closing under the terms of the Lease. If, prior to the Closing, Seller has commenced any contest or filed any objection with respect any applicable taxing authority as to real property taxes and assessments attributable to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on period prior to the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled have the right to cancel all of its existing policies as of continue such proceeding following the Closing Date. Buyer shall be obligated (at its own election) and any refunds attributable to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined paid to and paid retained by Seller before ClosingSeller, if possible, or and Buyer shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determinedno interest therein. Buyer and Seller shall to To the extent necessary enter into an agreement that Buyer is required by law to participate in any such effect tax contest, Buyer agrees to reasonably cooperate with Seller in such proceeding at Closing. Seller shall attempt no cost or expense to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing DateBuyer.
(b) Special assessments which have been filed as a lien against any Seller shall pay all County transfer taxes associated with the conveyance of the Real Property on or before the Closing Date from Seller to Buyer. Seller and are not payable in installments Buyer shall split equally all City conveyance taxes to be paid by Seller. Special assessments which have been filed as a lien against any in connection with the conveyance of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by from Seller to Buyer. Special assessments which are or may be pending, but which have not become a lien on Seller shall pay the Real Property as portion of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by premium for Buyer.
(c) Seller ’s Title Policy allocable to an ALTA standard owner’s policy of title insurance. Buyer shall pay the cost of State Buyer’s endorsements, if any, and County transfer taxes or stamps imposed the excess cost of the ALTA extended coverage owner’s policy of title insurance. Seller shall pay all reasonable escrow fees incurred in connection with the recordation consummation of the Deeds for sale of the Real PropertyProperty by Seller to Buyer. All other customary closing costs incurred shall be allocated to Buyer and Seller in accordance with the custom in Santa Xxxxx County. Except as provided in Section 12.5 and Section 12.6 below, each party shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies its own attorneys’ fees incurred in connection with this Agreement and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyertransaction described herein.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then
Appears in 1 contract
Prorations and Closing Costs. All matters involving prorations or prorations, adjustments to and final readings shall be made in connection with as of 11:59 pm of the day preceding the Closing Date, unless otherwise mutually agreed to by the parties (the "Adjustment Date"), by the Title Company based on information provided by the parties, as follows:
(a) Payments under any Project Contracts or Personal Property Leases and not specifically provided fees for in any other provision of this Agreement transferable licenses and permits which are assigned to Buyer, shall be adjusted prorated.
(b) General real estate taxes shall be prorated, using for such purpose the rate and valuation shown on the last available tax duplicate, but subject to further adjustment as provided below. Except If any real estate taxes prorated at Closing or assessments paid by Seller (as otherwise set forth hereinbelow) are later increased for any reason whatsoever, all items including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being greater than those shown on the tax duplicate available at Closing or because of any additions or corrections to be prorated pursuant to this Paragraph shall be prorated as the tax duplicate assessed by reason of the Closing Date, with Buyer to be treated as the owner Buyer's acquisition of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and then Seller shall be entitled to cancel promptly pay all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and such increases allocable to the period prior to the Closing Date and Seller shall be determined protect, indemnify, defend, and hold Buyer harmless from and against all such real estate tax and assessment increases, which obligations on the part of the Seller shall survive the Closing. If any real estate taxes prorated at Closing or assessments paid by Seller (as set forth below) are later decreased for any reason whatsoever, including, without limitation, the real estate taxes and assessments shown on the later issued actual tax duplicate being less than those shown on the tax duplicate available at Closing or because of any corrections to the tax duplicate assessed by reason of Buyer's acquisition of the Property or because of any post-Closing reduction in, or refund or rebate of, any taxes relating wholly or in part to a period before the Closing, if possiblethen Buyer shall promptly pay to Seller the savings allocable to the period prior to the Closing (less any costs incurred by Buyer to any unaffiliated third parties in connection with obtaining the reduction of such tax bill), or xhich obligation shall survive the Closing. Any special assessments that are a lien on the Property as of the date of this Agreement shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately without proration. Any special assessments that become a lien on the Property after the same have been determined. Buyer and date of this Agreement shall be paid as follows: Seller shall pay all installments that are due and payable prior to the extent necessary enter into an agreement Closing Date and Buyer shall pay all installments that become due and payable on or after the Closing Date.
(c) Collected rents shall be prorated based upon the total rent roll payable for the month in which Closing occurs. In the event that Buyer receives current rent from any tenants for the month in which the Closing occurs, then Buyer shall deliver to Seller (outside of escrow) the portion of such effect at Closingcurrent rents attributable to periods prior to the Adjustment Date. Seller shall attempt to have all utility meters read Additionally, in the event that any tenant, who as of the Closing Date. Seller shall further attempt is delinquent in the rental payments due Seller, delivers to obtain from the provider of same, all other service statements and bills of account adjusted as Buyer a rent check in an amount in excess of the Closing Date. Seller rent due Buyer for the month for which such check is delivered, Buyer shall be entitled allocate such excess first to refunds of all depositspay reasonable outside collection costs, if any, paid by to unaffiliated third parties, then to pay rents which become due after Closing, then pay remaining funds to Seller or Seller's predecessor-in-interest for any rents delinquent prior to Closing and held by entities providing were due as of the date such servicepayment was received; provided, orhowever, at in no event shall Buyer be obligated to collect delinquent rents on Seller's option, behalf.
(d) Final readings and final billxxxx xxx utilities shall be made as of the Adjustment Date. Seller shall transfer pay all outstanding amounts due as of Seller's rightsuch time, title and interest in and to or such deposits amounts shall be credited to Buyer at Closing Closing. If final readings and shall receive a full credit for billxxxx xxxnot be obtained prior to Closing, the amount of such deposits. All Contracts and other obligations in connection with the Propertyfinal bills, to the extent the same are intended to be assumed hereunderwhen received, shall be prorated as of the Closing DateAdjustment Date and the Title Company shall hold in escrow an amount equal to 125% of the reasonably anticipated amount of such billxxxx, xxsed upon the most recent available billxxxx xxx similar periods until the Title Company shall have received notice of payment of such bills, at which time any remaining amount being withheld for such purpose shall be distributed to the Seller.
(be) Special assessments Buyer shall receive a credit at Closing for all deposits, including security deposits, under the Tenant Leases which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal delivered or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyerassigned to Buyer at Closing.
(cf) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with this transaction the recordation following closing costs: (i) any state or local real or personal property transfer taxes, documentary stamps, fees or other charges relating to the transfer of the Deeds for the Real PropertyProperty and (ii) one-half of any escrow charges. Buyer shall pay in connection with this transaction the expense following closing costs: (i) all recording fees, (ii) the costs of the title searchesTitle Policy and all endorsements thereto and (iii) one-half of any escrow charges. Each party shall pay its own attorneys' fees. All closing costs allocable to Seller, title premiums and including, without limitation, any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired prorations to which Buyer may be entitled by Buyer. Buyer agrees to pay the expense reason of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date foregoing shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with against the interest due thereon, if any and if required under the terms balance of the Lease or as required by applicable law, shall either Appraised Value to be credited or transferred to Buyer paid at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then.
Appears in 1 contract
Samples: Purchase Agreement (Associated Estates Realty Corp)
Prorations and Closing Costs. All matters involving prorations or adjustments to be made in connection with the Closing and not specifically provided for in any some other provision of this Agreement shall be adjusted as provided below. follows:
(a) Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated as of the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) . Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis using the actual number of days in such year as a basis. If the amount of such taxes is not known on the Closing Date, proration of such taxes will be prorated on the basis of made based upon the most recently ascertainable tax xxxxbill. There Xxyer acknowledges that Seller shall be entitled to a proration of taxes notwithstanding the fact that payment of portions of such taxes may be included as additional rent within some or all of the Leases. Buyer and Seller agree that if the estimated taxes differ from the taxes as finally determined for the period of time in which Closing occurred, at the time of final determination of the actual taxes, the parties will adjust the Closing prorations to reflect the actual charges for up to one year from the Closing Date. Other than insurance policies held by Main Street Council, which shall be assigned to Buyer and the cost of which shall be apportioned, there shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.immedi-
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller Buyer shall pay the cost of State title search and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies premium, and the cost of obtaining any surveys, if desired by Buyersurvey. Buyer agrees to pay the expense of recording all mortgage related documents for any purchase money or other financing, the expense of any additional title costs (e.g. endorsements and title insurance costs on any lender's title policy), all other mortgage related costs (including without limitation State documentary stamps or other charges on any mortgages and intangible tax on any notes), the legal fees of its own counsel, and the expense of preparing any Closing documents other than those expressly provided in this Paragraph to be paid for and prepared by Seller. The Subject to Paragraphs 12(b) below (relating to Seller's default) and 4(b) above (relating to the failure by Seller to remove monetary liens), the cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Seller agrees to pay the cost of the New Jersey realty transfer fee on the Deed and in connection with the transfer of the Beth Xx Site, all other costs in connection with the Beth Xx Site Agreement which are to be paid by Seller therein, including costs related to subdivision, and the construction-related costs set forth in the amendment to the Beth Xx Site Agreement (excluding only those costs to be incurred by Buyer as owner and/or Declarant of the Property on an ongoing basis pursuant to the Declaration and/or the landscape easement agreement described in the amendment to the Beth Xx Site
(i) Any base, minimum rentals or similar rents under the Leases other amounts collected in advance by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, Future Lease shall either be credited to or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears Closing; provided, that with respect to the security deposits which are in the payment form of rent or additional rent on a letter of credit, as set forth in Exhibit "C-2 ", then at Closing, Seller shall send notice to Tenant of the requirement that such letter of credit shall be replaced and reissued in the name of Buyer. Buyer acknowledges that such replacement of any letter of credit will occur after the Closing Date, rents received from such tenant ninety . Any rentals or other amounts collected by Buyer within six (906) days months after Closing and relating to a period or portion thereof prior to the Closing Date shall be promptly paid by Buyer to Seller. Accordingly, all amounts received from a Tenant within six (6) months after Closing shall be applied in the following order of priorityorder: (aA) first on account of any amount then due Buyer from such Tenant for a period subsequent to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, ; then (bB) to Seller for all rent in arrears any period prior to Closing; and (C) next, any balance then remaining to Buyer. Seller retains the right to pursue its remedies against Tenants after Closing for any delinquent payments or other amounts owed to Seller by way of an action or suit for rent but not for possession or eviction. Seller shall not be permitted to terminate any Lease or evict any Tenant in connection with the pursuit of its aforesaid collection remedies.
(ii) With respect to additional rents uncollected at Closing and owed for any period prior to Closing and not yet billed, Buyer shall submit appropriate bills to the Tenants pursuant to the terms of such Tenant Lease(s). Buyer shall use commercially reasonable efforts to collect such additional rents for a period of six (6) months after the additional rent becomes due. Seller's apportioned interest in any amounts collected by Buyer to the extent such amounts are available in accordance with the provisions hereof, net of the reasonable third party costs of collection, shall be paid to Seller within fifteen (15) days following the month of collection. If any of the aforesaid prorations cannot be definitively calculated accurately as of the
(iii) Seller shall be entitled to a positive adjustment at Closing to reflect any expenditures paid or incurred by Seller (as an illustration but without limitation, tenant improvement costs, leasing commissions, professional fees related thereto, and financing costs in connection therewith) with respect to any of the Future Leases.
(iv) Performance and other bonds issued on behalf of Seller and delivered to Voorxxxx Xxxnship will be canceled by Seller, and replaced by Buyer, if necessary. Seller represents, to its actual knowledge, that the bonds issued to Voorxxxx Xxxnship, and the amount outstanding on such bonds, are set forth on Exhibit "M".
(v) Items of revenues related to Main Street Council, including without limitation assessments paid to Main Street Council by its members, and items of costs, charges and other expenses related to the Main Street Council shall be apportioned as of the Closing Date; . Under the Declaration, Assessments are payable to the Main Street Council by its members, who consist of the owners of parcels of land within Main Street and thenthe condominium associations of, respectively, Piazxx xx Xxxx Xxxxxx ("XXXXXX XXXOCIATION"), Promenade Homes at Main Street ("PROMENADE ASSOCIATION") and Terrace Grand at Main Street ("TERRACE GRAND ASSOCIATION"). The Promenade Association, the Piazza Association, and the Terrace Grand Association are sometimes collectively called the "RESIDENTIAL ASSOCIATIONS".
(A) Seller has informed Buyer that, as of the date of this Agreement, Promenade Association and Piazza Association, each of whom are members of the Main Street Council as set forth above, are delinquent in their assessment obligations. In addition, the owner of Lot 4.17, who also is a member of the Main Street Council, has executed a promissory note payable on May 1, 1997 in the amount of the assessments payable by such owner through April 30, 1997, which promissory note is not being assigned under this Agreement of Sale but instead is being retained by Seller (along with the right of enforcement of such promissory note). Accordingly, at Closing, Seller shall reimburse to Buyer the amount of assessments payable to Main Street Council by the owner of Lot 4.17 for the period commencing on the date of Closing and ending on April 30, 1997.
Appears in 1 contract
Prorations and Closing Costs. All matters involving 9.5.1 Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments (subject to the terms of Section 9.5.2 below), utility bills (except as hereinafter provided), and collected Rents. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Buyer will be charged and credited for all of the Proration Items relating to the period after the Proration Time. No prorations or adjustments to will be made in connection relation to insurance premiums, and Seller’s insurance policies will not be assigned to Buyer. Final readings and final xxxxxxxx for utilities, to the extent not paid directly by the Tenant, will be made if possible as of the Proration Time, in which event no proration will be made at Closing with respect to utility bills.
9.5.2 All ad valorem real estate and personal property taxes with respect to the Closing and Property (to the extent not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph paid directly by the Tenant) shall be prorated as of the Closing DateProration Time without regard to when said taxes are payable, with Buyer to be treated as using the owner tax year of the Propertyapplicable taxing authority, for purposes of prorations of income so that (i) any taxes assessed against the Property and expenses, on allocable to periods prior to the Proration Time shall be credited to Buyer (but only to the extent such taxes are not paid directly by the Tenant) and (ii) any taxes assessed against the Property and allocable to periods from and after the Closing Date.
Proration Time shall be the responsibility of Buyer. If the amount of any taxes to be prorated in accordance with this Section 9.5.2 is not then ascertainable, the adjustment thereof shall be predicated upon 100% of the most recent ascertainable assessments and tax rates (a) Real estate taxes and all other ad valorem taxes, if anyassuming, with respect to the Orlando Real Property Estate, that HP IV takes advantage of the maximum discount provided by the taxing municipality for the applicable fiscal or calendar year in early payment of real estate taxes). Seller and Buyer do hereby further agree with regard to any proration for real estate taxes for which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is final xxxx was not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Proration Time, to reprorate said real estate taxes forthwith upon Buyer’s receipt of the actual tax xxxx for the tax year in question. This covenant shall survive the Closing Dateof this transaction. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating .
9.5.3 With respect to the Property and allocable to Leases, the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall following will be credited to Buyer at Closing on a per diem basis. In additionas of the Proration Time: (i) all non-cash lease, any security or other deposits held by Seller, (ii) an amount equal to all current and future abatements, concessions or allowances granted to the Tenant under the Leases, (iii) an amount equal to unpaid tenant improvements and lease commissions in connection with Leases, (iv) all prepaid rent and rent paid for the balance of the month of Closing, (v) all sums currently held by Seller pursuant to the terms of Leases as estimated deposits for any Leasetenants’ share of real estate taxes and operating expenses for the period after Closing, together with (vi) all cash lease, security or other deposits made by Tenant under the Leases and interest due thereon, if any, received, earned or required to have been earned prior to the Proration Time. Seller shall not receive credit at Closing for any and if required payments of rental obligations due, but not paid on the Proration Time from the Tenant under the terms of the Lease Leases (“Non-Credit Items”). Following receipt by Seller or as required by applicable lawBuyer of any payments from Tenant for which there is a Non-Credit Item in existence, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date payments shall be applied distributed and/or remitted in the following order of priority: (i) to Buyer for rent and other Lease obligations due or accrued from such tenant from and after the Proration Time and when, and only when, such rents and other Lease obligations have been paid in full to Buyer; then (ii) the balance to Seller to the extent of any such Non-Credit Items with respect to Tenant. If a Non-Credit Item due Seller is not paid by Tenant within the later of (a) sixty (60) days after the Closing or (b) sixty (60) days after billing therefor, Seller shall have the right to the Buyer, attempt to effect collection by litigation or otherwise so long as such tenant is Seller does not take any action which would (x) affect Tenant’s right to occupy the leased premises or (y) terminate its Lease. Buyer shall cooperate with Seller in arrears for current its efforts to collect Non-Credit Items but shall not be required to take any action against Tenant which would affect Tenant’s right to occupy its leased premises or prior rent arising after Closing, then (b) to Seller terminate its Lease.
9.5.4 Buyer shall receive a credit against the Purchase Price at Closing for all rent in arrears payments, if any, due or owing under any Contracts for periods prior to the Closing Date, which amounts shall be prorated as of the Proration Time. If Seller has paid any amounts under any Contracts for periods after the Proration Time, Buyer shall pay such amounts to Seller at Closing in addition to the Purchase Price.
9.5.5 Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Buyer for Buyer’s approval prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Buyer and Seller and delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Proration Time, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received (not to exceed 120 days after Closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. The provisions of this Section 9.5.1(a) will survive the Closing for a period of twelve (12) months.
9.5.6 Seller shall pay (a) the cost of discharging any Monetary Liens affecting the Property, (b) one-half of the Escrow Agent’s escrow fee, (b) all of the costs associated with the issuance of the Title Commitments and Title Policy, other than the costs of any endorsements Buyer may require in accordance with Section 4.3; (c) the cost of the Surveys, (d) State of Illinois and Lake County transfer taxes, Florida deed taxes, and (e) any additional costs and charges customarily charged to sellers in accordance with common escrow practices in the county in which the Property is located, other than those costs and charges specifically required to be paid by Buyer hereunder. Buyer shall pay (a) one-half of the Escrow Agent’s escrow fee, (b) the costs of any endorsements to the Title Policies that Buyer may require in accordance with Section 4.3, (c) the recording fees required in connection with the transfer of the Property to Buyer; and then(d) any additional costs and charges customarily charged to buyers in accordance with common escrow practices in the municipality in which the Property is located, other than those costs and charges specifically required to be paid by Seller hereunder.
Appears in 1 contract
Samples: Agreement of Sale and Purchase
Prorations and Closing Costs. All matters involving prorations or adjustments (a) Seller and Buyer agree to be made in connection with adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (i.e., Buyer to receive the benefits and not specifically provided for in any other provision burdens of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated the Property as of the Closing Date), with Buyer to be treated as the owner of following (collectively, the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real “Proration Items”): real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies assessments due and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period payable prior to the Closing Date shall be determined and paid in full by Seller before at or prior to Closing, if possiblereal estate and personal property taxes and assessments based on 2005 tax bxxx, or with a later reproration of taxes when the actual bills are received, utility bills (except as hereinafter provided), collected Rents (subject to the terms of 9.6.1(b) below) and Operating Expenses (subject to the terms of 9.6.1(c) below) payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to the Closing Date, and Buyer will be charged and credited for all of the Proration Items relating to the period beginning on the Closing Date and extending thereafter. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Buyer for Buyer’s approval prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Buyer and Seller and delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid promptly thereafter at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or adjusted reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer (“Reproration Date”). No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be assigned to Buyer. Final readings and final bxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Buyer will be obligated to make its own arrangements for deposits with the utility providers. The provisions of this Section 9.6.1(a) will survive the Closing for twelve (12) months.
(b) Buyer will receive a credit on the Closing Statement for the prorated amount (as of 11:59 p.m. of the day prior to the Closing Date) of all Rentals from and including the day of Closing through the end of the month in which Closing occurs. Rentals are “Delinquent” when they were due prior to the Closing Date, and payment thereof has not been made on or before the Closing Date. Delinquent Rentals will not be prorated, except for the month in which closing occurs and further except Seller will receive a credit for any Rents paid in arrears by any United States government or Rhode Island government tenants as if such Rents had been collected in advance. Subject to the provisions below in Section 9.6.1(e) regarding utilities, all sums collected by Buyer in the month in which the Closing Date occurs shall first be applied to the month of Closing with the entire amount thereof either forwarded to the Seller or reimbursed to the Seller by the Buyer and then all sums collected by Buyer from and after Closing from each Tenant will be applied first to Rentals owed by such Tenant to Buyer and then to Delinquent Rentals owed by such Tenant to Seller. Any sums due Seller immediately will be promptly remitted to Seller. Buyer shall not have an exclusive right to collect any sums due Seller from Tenants under the Leases and Seller hereby retains the right to pursue any Tenant under the Leases for any sums due Seller for periods attributable to Seller’s ownership of the Property; provided, however, Seller (i) shall be required to notify Buyer in writing of Seller’s intention to commence or pursue any legal proceedings; (ii) shall only be permitted to commence or pursue legal proceedings after the same have been determineddate which is three (3) months after Closing; and (iii) shall not be permitted to commence or pursue any legal proceedings against any Tenant seeking eviction of such Tenant or the termination of the underlying Lease. The provisions of this Section 9.6.1(b) will survive the Closing for twelve (12) months.
(i) Seller shall not be credited at Closing with accrued and unpaid Operating Expenses and real estate taxes for the Property. Buyer and agrees to reasonably cooperate with Seller shall in regard to the extent necessary enter into an agreement post-Closing reconciliation and billing processing of amounts due and payable to such effect at Closing. Seller shall attempt Seller, if any, attributable to have all utility meters read as of any period prior to the Closing Date. Seller shall further attempt credit Buyer in a sum equal to obtain the collected and not yet expended sums on deposit from the provider of same, all other service statements and bills of account adjusted Tenants as of the Closing date of Closing. On the Re-Proration Date, the party that receives the payment shall receive the remainder of the difference or excess, as applicable, for Operating Expenses and real estate taxes less any adjustments made during re-proration pursuant to Section 9.6.1(a). Seller shall be entitled Subject to refunds of all depositsreimbursement from Seller, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing as herein provided, Buyer will be solely responsible, from and held by entities providing such serviceafter Closing, or, at Seller's option, Seller shall transfer all of Seller's right, title for preparing the annual reconciliation for Operating Expenses and interest in real estate taxes and to such deposits to Buyer at Closing and shall receive a full credit for collecting from Tenants the amount of such deposits. All Contracts any outstanding Operating Expenses and other obligations in connection with the Propertyreal estate taxes for periods before and after Closing, and where appropriate, reimbursing Tenants for amounts attributable to the extent the same are intended to Operating Expenses and real estate taxes, as may be assumed hereunder, shall be prorated as of the Closing Datenecessary based on annual reconciliations for Operating Expenses and real estate taxes.
(bii) Special assessments which have been filed as a lien against any of Notwithstanding the Real Property foregoing set forth in subsection 9.6.1(c)(i) above, current (i.e., not delinquent) real estate taxes referred to above that are not due and payable on or before the date of Closing Date and are payable on a pro rata basis by a tenant, either: (i) directly to the assessing authority, or (ii) to Seller, as landlord, upon presentation of a paid tax bxxx therefor, shall not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Dateprorated at Closing, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay accept title to the expense of Property subject to such current, accrued and unpaid real estate taxes, and Buyer shall look solely to the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees tenant for payment of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyerpro rata share thereof.
(d) Any base, minimum In the event that on or similar rents under prior to the Leases collected by Seller for a rental period or portion thereof from or after first anniversary of the Closing Date shall be credited a tenant of the Property exercises any right that it might have under its lease to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller inspect or audit the common area maintenance expenses for the Property for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears period prior to the Closing Date; , Buyer shall promptly notify Seller of such exercise. Seller, at the cost and thenexpense of Seller, shall have the right to fully participate in, and at its election, take over the management and defense of, such inspection or audit and any litigation, mediation and/or arbitration proceedings resulting from such inspection or audit. Buyer shall reasonably cooperate with the efforts of Seller in connection with any such inspection, audit, litigation, mediation and/or arbitration proceeding and shall utilize reasonable efforts to minimize or mitigate any liability of Seller hereunder. Seller hereby covenants and agrees to indemnify and hold harmless Buyer from and against any liabilities Buyer shall suffer as a result of any refund of common area costs or payment of costs and expenses as a result of any such inspection or audit initiated and with the results articulated to Buyer on or prior to the first anniversary of the Closing Date of any period prior to the Closing Date. The provisions of this Section 9.6.1(d) shall not be merged into the Deed delivered by Seller at Closing and shall survive the Closing for a period of 12-months from the Closing Date.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Inland American Real Estate Trust, Inc.)
Prorations and Closing Costs. All matters involving (a) Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date, the following (collectively, the "Proration Items"): real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), and all other revenues and expenses payable to or by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including 11:59 p.m. on the day immediately preceding the Closing Date, and Buyer will be charged and credited for all of the Proration Items relating to the period after the Closing Date. Such preliminary estimated Closing prorations or adjustments shall be set forth on a preliminary closing statement to be made in connection with prepared by Seller and submitted to Buyer for Buyer's reasonable approval prior to the Closing Date (the "Closing Statement"). The Closing Statement, once agreed upon, shall be signed by Buyer and not specifically Seller and delivered to the Escrow Agent for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for in any other provision of this Agreement below. The preliminary proration shall be adjusted as provided below. Except as otherwise set forth herein, all items paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer) by increasing or reducing the cash to be prorated pursuant to this Paragraph shall be prorated delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated made at Closing on the basis of the most recently ascertainable tax xxxxbest evidence then available; thereafter, when actual figures are received (not to exceed 120 days after closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Buyer. There shall No prorations will be no proration of Seller's made in relation to insurance premiums or assignment of premiums, and Seller's insurance policies and Seller shall will not be entitled assigned to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may Final readings and final xxxxxxxx for utilities will be pending, but which have not become a lien on the Real Property 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 utility providers, and special assessments which are filed as Buyer will be obligated to make its own arrangements for deposits with the utility providers. The provisions of this Section 9.6(a) will survive the Closing for twelve (12) months.
(b) Buyer shall receive a lien after credit against the Purchase Price at Closing for all payments due or owing under any Contracts for periods prior to the Closing Date, which amounts shall be assumed and prorated as of 11:59 p.m. of the day immediately preceding the Closing Date. If Seller has paid by Buyerany amounts under any Service Contracts for periods after 11:59 p.m. of the day immediately preceding the Closing Date, Buyer shall pay such amounts to Seller at Closing in addition to the Purchase Price.
(c) Seller shall pay (a) one-half of the Escrow Agent's escrow fee, (b) the premium for the CLTA portion of the Title Policy and any endorsement to cure title defects requested by Seller, and agreed to by Buyer, under Section 4.3, (c) recording fees in connection with any reconveyance requested hereby, (d) all state and county transfer taxes and (e) any additional costs and charges customarily charged to sellers in accordance with common escrow practices in the county in which the Property is located, other than those costs and charges specifically required to be paid by Buyer hereunder. Buyer shall pay (a) one-half of the Escrow Agent's escrow fee, (b) the premium for the ALTA portion of the Title Policy and the costs of any endorsements Buyer may require in accordance with Section 4.3 (other than the cost of State endorsements required to cure title defects, and County transfer taxes or stamps imposed agreed to by Seller), (c) the recording fees required in connection with the recordation transfer of the Deeds for the Real Property. Buyer shall pay the expense of the title searchesProperty to Buyer, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any baseany additional costs and charges customarily charged to buyers in accordance with common escrow practices in the county in which the Property is located, minimum or similar rents under the Leases collected other than those costs and charges specifically required to be paid by Seller for a rental period or portion thereof from or after hereunder. In addition to the Closing Date foregoing, Seller shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller responsible for any Lease, together with costs of updating the interest due thereon, if any and if required under the terms Surveys of the Lease Property or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in otherwise conforming the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) Surveys to the Buyer, so long as requirements for issuance of such tenant is in arrears Title Policy or for current or prior rent arising after Closing, then (b) to Seller any new survey that may be required for all rent in arrears prior to the Closing Date; and thenissuance of such Title Policy.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Diagnostic Products Corp)
Prorations and Closing Costs. 5.1 - Prorations. All matters involving prorations items of income and expense (collectively, the "Prorated Items") shall be paid, prorated or adjustments adjusted as of midnight on the date prior to the Closing Date (the "Proration Date") in the manner hereinafter set forth:
(a) Buyer shall be made credited with the amount of each of the following: (i) all rents received (i.e. collected) by Seller or its agents and attributable to any period commencing after the Proration Date; (ii) tenant improvement allowances that remain unpaid and are shown on Schedule 1 (which Schedule shall be updated by Seller at Closing); (iii) leasing commissions that remain unpaid and are shown on Schedule 2 (which Schedule shall be updated by Seller at Closing); (iv) all expense contributions and other required payments, real estate tax contributions to pay for Taxes (as hereinafter defined), and other payments and reimbursements of whatever nature or kind from Tenants received by Seller or its agents and attributable to any period commencing after the Proration Date (collectively, the "Tenant Contributions"); (v) all cash security deposits that remain unapplied and are shown on Schedule 3 (which Schedule shall be updated by Seller at Closing)(collectively, the "Security Deposits"); and (vi) all amounts paid to the Seller pursuant to any Leases and held by Seller in reserve accounts to fund future repairs or replacements. At Closing, Seller shall be credited with the current balance of any and all escrow and/or reserve accounts held by Bank of America (as hereinafter defined) pursuant to the Loan Agreement by and between Bank of America, as lender, and Seller, as borrower, to the extent such escrow and/or reserve accounts are transferred to Buyer in connection with Buyer's assumption of the Bank of America Loan (as hereinafter defined).
(b) All Prorated Items for the month of Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated between Buyer and Seller based upon their respective actual days of ownership for such month in which the Closing occurs. Except for any Security Deposits, neither Buyer nor Seller shall receive credit at Closing for any Prorated Items due and not paid as of the Proration Date. At the time of the final calculation and collection from Tenants of Tenant Contributions, whether in the nature of a reconciliation payment or full payment, in arrears, there shall be a reproration between Buyer and Seller as to the Tenant Contributions not later than one hundred eighty (180) days after the Closing Date (the "Outside Reproration Date"). The reproration of the Tenant Contributions and the reproration of real estate tax contributions shall be made on the basis of a per diem method of allocation. Each party covenants to provide the other with any information in its possession necessary to finalize such calculation.
(c) Percentage rent, with if any, shall be prorated between Buyer to be treated as and Seller by utilizing the owner percentage rent payable for such lease year based upon the actual days of ownership of the Property. There shall be no adjustment for percentage rent payments until after the receipt of any percentage rent payments made by the respective Tenants. Percentage rent payments shall be reprorated for each Tenant promptly after receipt of the final annual sales report and percentage rent payment from such Tenant for the lease year in which the Proration Date occurs, but in no event shall such reproration occur later than the Outside Reproration Date.
(d) Any amounts received from Tenants after Closing shall be applied on a Tenant-by-Tenant basis in the following order: (i) first, on account of any amount currently due Buyer from such Tenant(s); (ii) next, to Buyer for purposes Buyer’s actual out-of-pocket costs, if any, of prorations collection of income such amounts; and (iii) on the account of any amount due Seller. Any of the foregoing amounts due to Seller shall be paid not later than the Outside Reproration Date. Seller shall have no right to seek judgments or other relief against Tenants after Closing without the Buyer’s prior written approval, which approval shall not be unreasonably withheld or delayed.
(e) Operating expenses, including permits, licenses, membership dues, contributions to promotional or similar funds, merchant association dues, gift program expenses and all other kinds of expenses and liabilities relating to the Property which were required to be paid by Seller prior to Closing and required to be paid by the Buyer after Closing, and any prepaid expenses, to the extent same are being purchased by Buyer, shall be prorated between Buyer and Seller based upon the actual expenses or reasonable estimates.
(f) Notwithstanding anything herein to the contrary, Seller represents and warrants that all real estate taxes and assessments ("Taxes") for the Property currently due and payable for the calendar year 2011 and for all prior years have been paid prior to the date hereof. Any portion of the Taxes for the calendar year 2011 not yet due and payable and for which Tenants are not responsible under the Leases ("Landlord’s Portion of Taxes") shall be prorated between Seller and Buyer based upon the actual days of ownership of the parties for the year in which Closing occurs utilizing the most recent ascertainable tax xxxx(s). Seller and Buyer agree to reprorate Landlord’s Portion of Taxes upon Buyer’s receipt of the actual tax xxxx for the tax year in question, if any, but in no event shall such reproration occur after the Outside Reproration Date. All refunds of Taxes resulting from any real property tax appeal for the tax year in which the Proration Date occurs shall be: (i) allocated to amounts to be rebated to Tenants if required by a Lease and only to the extent so required, and the amount so allocated shall be forwarded to Buyer and Buyer agrees to promptly rebate the amount due to such Tenants; (ii) allocated to Seller to the extent that the amount refunded (and not allocated to amounts to be rebated to Tenants) is attributable to periods prior to the Proration Date, and such allocated amounts are to be held and/or distributed as specified in Section 5.1(i); and (iii) payable to Buyer to the extent that the amount refunded (and not allocated to amounts to be rebated to Tenants) is attributable to periods commencing after the Proration Date. Notwithstanding the foregoing, Buyer shall receive a credit from Seller for all sums representing contributions of Taxes received by Seller or its agents from any Tenants and attributable to any period prior to the Proration Date, which have not been applied toward the payment of Taxes.
(g) Seller shall pay all utility charges attributable to the Real Property through the Proration Date (except for those utility charges and operating expenses payable by Tenants in accordance with the Leases) and Buyer shall pay all utility charges and other operating expenses attributable to the Real Property after the Proration Date. Meters for all public utilities (including water) being used on the Real Property shall be ordered read by Seller on the Proration Date and after all charges incurred prior to the Proration Date shall be paid by Seller. To the extent that the amount of actual consumption of any utility services is not determined (or cannot be reasonably determined) prior to the Proration Date, a proration shall be made at Closing based on the last available reading and post-closing adjustments between Buyer and Seller shall be made within twenty (20) days of the date that actual consumption for such pre-Closing period is determined. Seller shall not assign to Buyer any deposits which Seller has with any of the utility services or companies servicing the Real Property. Buyer shall arrange with such services and companies to have accounts opened in Buyer’s name beginning at 12:01 a.m. on the Closing Date.
(ah) Real estate taxes and all All other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year items which are customarily prorated in transactions in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes rental real estate is purchased and sold, and which are not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel all of its existing policies as of the Closing Date. Buyer shall be obligated (at its own election) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection otherwise dealt with the Property, to the extent the same are intended to be assumed hereunderherein, shall be prorated as of the Closing Proration Date.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(ci) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay prepare a closing settlement statement (the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below"Closing Statement") shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date that shall reflect the purchase and sale of the Property and all prorations and adjustments, all as referenced in Section 2(b) of this Agreement. A copy of the Closing Statement agreed upon by Seller and Buyer shall be executed by both the Seller and Buyer and delivered to the Escrow Agent at the Closing. All rents and other payments received by Seller after the Proration Date shall be immediately forwarded and endorsed over to Buyer, subject to the provisions set forth above.
(j) In the event any prorations or computations made under this Section 5.1 which are based on estimates, prove to be incorrect or require the passage of time in order to obtain sufficient information (i.e. gross sales reports for the calculation of percentage rent), then either party shall be have the right, prior to the Outside Reproration Date; , to prepare and thendeliver a revised schedule of adjustments (a "Reconciliation Statement"), which shall include tenant invoice calculations and reasonable operating expense invoice backup. Within thirty (30) days following delivery of a Reconciliation Statement, Seller and Buyer shall work in good faith to resolve any outstanding items with respect to such Reconciliation Statement. Upon approval of the Reconciliation Statement, Buyer or Seller, as applicable, shall remit any amounts due to the other within fifteen (15) days.
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Prorations and Closing Costs. All matters involving prorations or adjustments The following are to be made in connection with the Closing and not specifically provided for in any other provision of this Agreement shall be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated apportioned as of 12:01 a.m. on the Closing Date, with Buyer to be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after the Closing Date.follows:
(ai) Real General real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property payable for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basis. If the amount of such taxes is not known on the Closing Date, taxes will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies by Seller and Seller shall be entitled to cancel all of its existing policies Buyer as of the Closing Date. Buyer If real estate taxes for the year of Closing are not known or cannot be reasonably estimated, such taxes shall be obligated (at its own election) prorated based on taxes for the year prior to obtain any replacement policiesClosing. The amounts current amount payable of all telephoneany bonds or assessments against the Property, electricincluding interest payable therewith, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to for the Property and allocable to the period prior to fiscal year in which the Closing Date occurs shall be determined and paid prorated by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between and Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller Operating costs or expenses applicable to the Property (including any association dues), if any, shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted be apportioned as of the Closing Date. , provided that utility service contracts for water, gas and electricity service to the Building (collectively, “Utility Service Contracts”) shall be terminated as of the Closing and the fees thereunder shall not be prorated.
(ii) Seller shall be entitled to refunds pay the premium for the ALTA standard coverage portion of all depositsthe Title Policy, if anyany city, paid by Seller county or Seller's predecessorstate transfer taxes and recording costs, any roll-in-interest back taxes based on changes in use or ownership prior to the Closing Date, and held one-half (1/2) of the fees of Escrow Holder. Buyer shall pay any additional premium necessary to obtain the Title Policy in ALTA extended coverage form, the costs of any Endorsements requested by entities providing such serviceBuyer or its lender, orthe cost of any new ALTA survey, at Seller's option, and one-half (1/2) of the fees of Escrow Holder. Buyer shall also be responsible for the cost of its own due diligence inspection of the Property. All other costs and charges of the Escrow not otherwise provided for in this Agreement shall be allocated in accordance with the Closing customs for the county where the Property is located. Buyer and Seller shall transfer each be responsible for their respective legal fees to negotiate and execute this Agreement.
(iii) Any and all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for income and/or revenue from the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, Property shall be prorated as of the Closing Date.
(biv) Special assessments which have been filed as Escrow Holder shall prepare closing statements (each, a lien against any “Closing Statement”) for Buyer and Seller on the basis of the Real Property on or before items to be prorated pursuant to this Section 7(f) and the credits to be received upon the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of deliver the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) same to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then applicable party no less than one (b1) to Seller for all rent in arrears business day prior to the Closing Date; and then.
(v) The provisions of this Section 7(f) shall survive the Closing.
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Prorations and Closing Costs. All matters involving 9.6.1. (a) Seller and Buyer agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date, the following (collectively, the “Proration Items”): real estate and personal property taxes and assessments, utility bills (except as hereinafter provided), collected Rents (subject to the terms of 9.6.l(b) below) and Operating Expenses (subject to the terms of 9.6.1(c) below) payable by the owner of the Property. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to but not including the Closing Date, and Buyer will be charged and credited for all of the Proration Items relating to the period from and after the Closing Date, such that Buyer shall be deemed to own the Property and therefore be entitled to any revenue and be responsible for any expenses of the Property for the entire day upon which the Closing occurs. Such preliminary estimated Closing prorations shall be prepared by Seller and submitted to the Title Company and Buyer, for Buyer’s approval, no less than three (3) business days prior to the Closing Date (the “Closing Proration Statement”). The Closing Proration Statement, once agreed upon by Buyer and Seller shall be used by the Title Company in preparing the settlement statement to be executed and delivered by Buyer and Seller at Closing (the “Settlement Statement”) and making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Buyer to Seller (if the preliminary prorations result in a net credit to Seller) or adjustments by Seller to Buyer (if the preliminary prorations result in a net credit to Buyer), in each case by increasing or reducing the cash to be delivered by Buyer in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of three (3) business days prior to the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received (except as provided in Section 9.6.1(C), not to exceed 120 days after Closing), re-prorations will be made on the basis of the actual figures, and a final cash settlement shall be made between Seller and Buyer. The Title Company shall prepare and deliver the Settlement Statement to Buyer and Seller for approval no later than two (2) business days prior to the Closing Date. No prorations will be made in connection with the Closing relation to insurance premiums, and Seller’s insurance policies will not specifically provided be assigned to Buyer, Final readings and final xxxxxxxx for in any other provision of this Agreement shall utilities will be adjusted as provided below. Except as otherwise set forth herein, all items to be prorated pursuant to this Paragraph shall be prorated made if possible as of the Closing Date, with Buyer to in which event no proration will be treated as the owner of the Property, for purposes of prorations of income and expenses, on and after made at the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any, with respect to the Real Property for the applicable fiscal or calendar year in which the Closing occurs shall be prorated on a per diem basisutility bills. If the amount of such taxes is not known on the Closing Date, taxes Seller will be prorated on the basis of the most recently ascertainable tax xxxx. There shall be no proration of Seller's insurance premiums or assignment of Seller's insurance policies and Seller shall be entitled to cancel recover from the utility providers all deposits presently in effect with the utility providers, and Buyer will be obligated to make its own arrangements for deposits with the utility providers. Except as provided in Section 9.6.1(c), the provisions of its existing policies as of this Section 9.6.l(a) will survive the Closing Date. Buyer shall be obligated for twelve (at its own election12) to obtain any replacement policies. The amounts of all telephone, electric, sewer, water and other utility bills, trash removal bills, janitorial and maintenance service bills relating to the Property and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid promptly thereafter by Seller or adjusted between Buyer and Seller immediately after the same have been determined. Buyer and Seller shall to the extent necessary enter into an agreement to such effect at Closing. Seller shall attempt to have all utility meters read as of the Closing Date. Seller shall further attempt to obtain from the provider of same, all other service statements and bills of account adjusted as of the Closing Date. Seller shall be entitled to refunds of all deposits, if any, paid by Seller or Seller's predecessor-in-interest prior to Closing and held by entities providing such service, or, at Seller's option, Seller shall transfer all of Seller's right, title and interest in and to such deposits to Buyer at Closing and shall receive a full credit for the amount of such deposits. All Contracts and other obligations in connection with the Property, to the extent the same are intended to be assumed hereunder, shall be prorated as of the Closing Datemonths.
(b) Special assessments which have been filed as a lien against any of the Real Property on or before the Closing Date and are not payable in installments shall be paid by Seller. Special assessments which have been filed as a lien against any of the Real Property but which are payable in installments shall be adjusted based upon the installment payment for the fiscal or calendar year in which Closing takes place and the remaining unpaid assessments shall be assumed by Buyer. Special assessments which are or may be pending, but which have not become a lien on the Real Property as of the Closing Date, and special assessments which are filed as a lien after the Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County transfer taxes or stamps imposed in connection with the recordation of the Deeds for the Real Property. Buyer shall pay the expense of the title searches, title premiums and any other title insurance costs on the owner's title insurance policies and the cost of obtaining any surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees of its own counsel. The cost of all of Buyer's Due Diligence Activities (as defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the Leases collected by Seller for a rental period or portion thereof from or after the Closing Date shall be credited to Buyer at Closing on a per diem basis. In addition, any security deposits held by Seller for any Lease, together with the interest due thereon, if any and if required under the terms of the Lease or as required by applicable law, shall either be credited or transferred to Buyer at Closing at Seller's option. If any tenant is in arrears in the payment of rent or additional rent on the Closing Date, rents received from such tenant ninety (90) days after the Closing Date shall be applied in the following order of priority: (a) to the Buyer, so long as such tenant is in arrears for current or prior rent arising after Closing, then (b) to Seller for all rent in arrears prior to the Closing Date; and then
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