Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year. 6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3. 6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property. 6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (G Reit Inc), Purchase and Sale Agreement (G Reit Inc)
Prorations. 6.7.115.1 Rent, additional rent, water and other utility charges; fuels; operating expenses; real and personal property taxes (adjusted for all tenants' liabilities, if any, for such items); and all other items of expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing Date ("Proration Date"). Real property Seller shall be entitled to a credit for all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods payable in installments which are due prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, Closing Date shall be paid by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. If any ongoing real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the contexx xhall be the most recent data for the tax year being contested, and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All other prorations will be adjusted finally pursuant to Paragraph 15.4 below. Purchaser shall be credited with and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears charged with an amount equal to the primary term sum of (i) all Tenant security deposits and interest thereon required under the Leases, and (ii) the amount of any other credits due to Tenants as of the new Lease subject, Closing Date in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under accordance with the terms of the Leases, including prepaid rent. Seller shall be entitled to retain all Tenant security deposits, interest thereon, or other such credits due Tenants for which Purchaser receives credit and Seller is charged pursuant to this Agreement specifically become Paragraph. At the obligation of Buyer)Closing, brought by third parties and based Seller shall give Purchaser credit for an amount, determined on events occurring on or before the Close of Escrow and which are in any way related an accrual basis, equal to the Property.
6.7.4abatement of rent for any period on and after the Closing Date to which Tenants are entitled under Leases in effect on the Closing Date. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent Subject to the Close other terms of Escrow this Agreement, Purchaser shall assume the performance of all terms, covenants and which are in any way related conditions of the Leases with respect to the Propertyperiod from and after the Closing Date.
Appears in 2 contracts
Samples: Agreement of Sale (Balcor Equity Pension Investors Ii), Agreement of Sale (Balcor Equity Pension Investors Iii)
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, security deposits, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All Rents, security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any Rents and other charges under the Lease that are delinquent rents attributable to periods prior to as of the Close of Escrow will not be prorated, and which are collected rents and other amounts received by Buyer on or after the Close of Escrow in respect of the Lease will be applied in the following order: (i) to Buyer's actual out-of-pocket costs of collection incurred with respect to the collected amounts; (ii) to rents due under the Lease for the month in which the payment is received by Buyer; (iii) to rents attributable to any period after the Close of Escrow that are past due on the date of receipt; and (iv) to rents and other charges delinquent as of the Close of Escrow (and Buyer promptly will remit these amounts to the Seller). Buyer will use commercially reasonable efforts to collect any delinquent rents, provided that Buyer has no obligation to institute legal proceedings, including an action for unlawful detainer, against the Tenant. In no event will Seller shall be retained commence or maintain any action after the Close of Escrow against the Tenant to collect any sums purportedly owed by or paid the Tenant to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If If, after Close of Escrow either party Escrow, Buyer receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax xxxx relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property transactions entered into prior to execution of the this Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease Lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears bear to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by the Tenant or any other third parties and based on events occurring on or before the Close date of Escrow closing and which are in any way related to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys attorneys' fees, brought by the Tenant or any other third parties and based on events occurring subsequent to the Close date of Escrow closing and which are in any way related to the Property, and all expenses related thereto, including, but not limited to, court costs and attorneys' fees, provided, that the foregoing indemnity shall not be construed to limit the effect of, nor shall it be applicable to the subject matter of, any of Seller's representations and warranties expressed in this Agreement or in the closing documents delivered by Seller.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (T Reit Inc), Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Prorations. 6.7.1. All normal and customarily proratable items relating to the Purchased Assets, including, without limitation, Real property taxesProperty Taxes, personal property taxes, assessmentsutility bills, rentsalarm and security bills, ground lease rent and CAM expenses tower lease rent (collectively, the "Closing Date Prorations") shall be prorated through Escrow between Buyer and Seller as of Close such assets' respective Closing Date, Seller being charged and credited for all of Escrowthe same up to such date ("Seller's Closing Date Prorations") and Purchaser being charged and credited for all of the same on and after such date ("Purchaser's Closing Date Prorations"). All security earnxxx xxxey deposits held by Seller under Tower Leases for which Purchaser assumes liability under a Tower Lease Assignment and Assumption Agreement shall be paid over to Buyercredited in favor of Purchaser against the Purchase Price. Rents and CAM expenses The Pre-Paid Expenses shall be approved by Buyer prior to Close credited in favor of EscrowSeller against the Purchase Price in the aggregate amount thereof. Any delinquent rents attributable to periods prior to Within ninety (90) days after each Closing Date, the Close of Escrow Seller will prepare and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction notify Purchaser of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxxClosing Date Prorations applicable to such Closing Date. If Purchaser disagrees with Seller's calculation of Closing Date Prorations, Purchaser will notify Seller within five (5) business days after Close receipt of Escrow either party receives any further or supplemental tax xxxx relating the calculation. If the parties cannot resolve a disagreement as to any period prior to Close of Escrowsuch calculation within three (3) business days thereafter, the recipient they shall promptly deliver a copy of submit the disagreement to an arbitrator mutually selected by the parties (the "Arbitrator"), whose decision with respect to such tax xxxx to the other party, and not later than Closing Date Prorations (which decision must be rendered within ten (10) business days prior to the delinquency date shown on such tax xxxx Buyer after submission) will be final and binding. Purchaser and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360will each pay one-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution half of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term expenses of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Arbitrator.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Asset Purchase Agreement (LCC International Inc), Asset Purchase Agreement (LCC International Inc)
Prorations. 6.7.1. Real property taxes, The following items shall be adjusted and apportioned between Sellers and Purchaser as follows:
(a) All non-delinquent ad valorem real estate and personal property taxes, assessments, rents, charges and CAM expenses assessments affecting the Properties shall be prorated through Escrow between Buyer and Seller on a per diem basis such that they are charged to Purchaser as of Close the Closing Date, disregarding any discount or penalty and on the basis of Escrowthe fiscal year of the authority levying the same. All security deposits If any of the same have not been finally assessed as of the Closing Date for the current fiscal year of the taxing authority, then the same shall be paid over to Buyeradjusted through the Closing Date based upon one hundred percent (100%) of the most recently ascertainable taxes. Rents and CAM expenses There shall be approved by Buyer prior a final reproration of the estimated real estate and personal property taxes promptly following the issuance of final bills. Each party agrees to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller make such payments as shall be retained by or paid necessary to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for provide the appropriate credits resulting from such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or re-proration.
(b) have the right to seek eviction All non-delinquent rent and other income of the Tenant by unlawful detainer or Properties, including, without limitation, other means. Tax periodic rentals, additional rentals, escalation rentals, pass-throughs and assessment prorations other sums and charges payable under the Leases (collectively, "Rents") collected as of the Closing Date shall be based prorated on a per diem basis such that they are credited to Purchaser as of the latest available tax xxxxClosing Date. If after Close Purchaser shall receive a credit for any Rents which have been prepaid as of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not Closing Date. No later than ten five (105) days prior to the delinquency date shown Closing Date, Sellers shall provide Purchaser with a statement of all delinquent Rents. Any Rents defined below, which are delinquent on such tax xxxx Buyer the Closing Date and Seller which are collected after the Closing (net of collection costs, if any) shall deliver be applied as follows: (i) first to the taxing authority their respective shares month in which Closing occurred, (iii) second, to all periods after Closing until Rent due to Purchaser is paid current by the applicable Tenant, and (iii) third, to the receivables for the two calendar months immediately preceding the month of Closing. From and after the Closing Date Purchaser shall use commercially reasonable efforts to collect such tax xxxxRent receivables in the ordinary course of business, but shall not be obligated to engage a collection agency, take legal action or to send any default notices. The obligation of Purchaser to remit delinquencies to Sellers in accordance with the terms of this Section 6(b) shall survive the Closing, delinquent Rents which are not collected by Purchaser on or before the date that is sixty (60) days after Closing shall be forfeited by Sellers and Sellers shall have no further right, title or interest in or to the same. To the extent any Seller receives any Rents after Closing, the same shall be held in trust for Purchaser and be applied in accordance with the terms of this Section 6(b).
(c) At Closing Purchaser shall receive a credit equal to the unapplied total of all security and other refundable tenant deposits then held by Sellers. One or more of the Sellers may participate in a program administered by Lease Term Insurance Group, LLC ("Lease Term Insurance") whereby tenants of a Property may pay a non-refundable fee in lieu of refundable security deposits. Such fees shall not be treated as security deposits and shall not be subject to proration, provided that, at Closing, Sellers shall credit the Purchase Price for an amount equal to the then balance of the Lease Term Insurance credit pool for each of the Properties.
(d) Charges of water, electricity, sewer rental, gas, telephone and all other utilities, and charges and income under all Assumed Contracts shall be prorated on a per diem basis such that they are credited or charged to Purchaser, as applicable, as of Close the Closing Date, disregarding any discount or penalty and on the basis of Escrowthe fiscal year or billing period of the authority, utility or other person levying or charging for the same and charged to Sellers for all periods prior to the Closing Date. All prorations If the consumption of any of the foregoing is measured by meters, then Sellers shall use commercially reasonable efforts to arrange to obtain a reading of each such meter prior to Closing and Sellers shall pay all charges thereunder through the date of any meter readings obtained prior to Closing. If actual amounts cannot be reasonably obtained as of the Closing, such charges and income under the Assumed Contracts shall be based on Sellers' and Purchaser's good faith estimates (based on past expenses) and shall be re-prorated when actual amounts can be ascertained but in any event no later than one hundred eighty (180) days after Closing. Payments in connection with the final adjustment shall be due within thirty (30) days of written notice
(e) Water or utility charges which are separately metered and billed to tenants at the Properties shall be reasonably estimated as of the Closing Date by Sellers based on the average consumption for such tenants for the two (2) previous monthly bills and at Closing, Sellers shall be entitled to a 360credit equal to such estimate. Such estimate shall be subject to re-day yearproration under subsection (d) above.
6.7.2. All leasing commissions owing and tenant improvements with respect (f) At Closing, Purchaser shall receive a credit for any Vacant Units (as defined below) that are not in Rent Ready Condition (as defined below) as of the date that is three (3) Business Days prior to the Real Property entered into Closing Date in an amount equal to Seven Hundred Fifty Dollars ($750) for each such unit. "Rent Ready Condition" shall mean a Vacant Unit that has been thoroughly cleaned and repainted since being vacated and contains the following: (1) a refrigerator-freezer unit in good condition and working order; (2) a dishwasher, garbage disposal, stove, oven, and microwave in good condition and working order; (3) plumbing, heating, air conditioning, and electrical systems in good condition and working order; (4) floors fully covered with a combination of tile, linoleum or carpet, and that since the unit was vacated (a) all tile and linoleum has been replaced and/or thoroughly cleaned consistent with Seller's prior practices for vacant units to be re-leased and (b) all carpeting has been replaced or steam cleaned by a professional third party vendor; and (5) blinds and/or drapes on all windows in good condition and working order. "Vacant Unit" shall mean any residential apartment unit at the Properties that is unoccupied as of the Closing Date and that was vacated by the tenant most recently occupying such unit at least three (3) Business Days prior to execution the Closing Date (i.e., if a unit becomes vacant less than three (3) Business Days prior to the Closing Date, it is not a "Vacant Unit" as to which Purchaser might be eligible to receive a credit). If requested by Purchaser, representatives of Sellers and Purchaser shall conduct a walk-through (the "Walk-Through") of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against Properties on or around the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears third (3rd) Business Day prior to the primary term Closing Date in order to determine the amount of the new Lease subjectsuch credit, in all eventsif any, to the prior approval of said Leases as herein provided by Buyer pursuant be given to Paragraph 7.3Purchaser.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Real Estate Purchase and Sale Agreement (Ares Real Estate Income Trust Inc.), Real Estate Purchase and Sale Agreement (Ares Real Estate Income Trust Inc.)
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, The following adjustments to the Purchase Price paid hereunder shall be made between Seller and CAM expenses Purchaser and shall be prorated through Escrow between Buyer (as applicable) on a per diem basis as if Purchaser owned the Property for the entire day on the Closing Date:
(a) All real estate taxes and Seller as installments of Close special assessments due and payable with respect to the calendar year of EscrowClosing. All security deposits other installments of special assessments not yet due and payable shall be paid over to Buyerthe responsibility of Purchaser. Rents and CAM expenses If at the time of Closing the tax rate or the assessed valuation for the current year has not yet been fixed, taxes shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to prorated based upon the Close of Escrow tax rate and which are collected by Buyer or Seller shall be retained by or paid to Sellerthe assessed valuation established for the previous tax year; provided, however, that Seller and Purchaser agree that to the extent the actual taxes for the current year differ from the amount so apportioned at Closing, the parties hereto will make all necessary adjustments by appropriate payments between themselves following the Closing, and this provision shall survive Closing.
(b) Current rents, advance rentals and other income from the Property shall be prorated between Seller and Purchaser at Closing based upon such amounts actually collected by Seller as of the Closing Date. Rent which is unpaid or delinquent as of the Closing Date shall not be prorated, but such unpaid or delinquent rent collected after the Closing Date shall be delivered as follows: (i) if Seller collects any rent after the Closing Date, Seller shall deliver to Purchaser any such rent within fifteen (15) days after the receipt thereof and (ii) if Purchaser collects any unpaid or delinquent rent after the Closing Date, Purchaser shall deliver to Seller any such rent relating to the period prior to the Closing Date within fifteen (15) days after the receipt thereof. Seller and Purchaser agree that all rent received by Seller or Purchaser after the Closing Date shall be applied first to current rentals and then to delinquent rentals, if any, in inverse order of maturity provided any payments to Seller shall be net of costs of collection. Purchaser will make a good faith effort after Closing to collect all rents (including without limitation the Pass Through Expenses and percentage rents described in Section 4.4(c) below) in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to institute any lawsuit or incur any expense to collect delinquent rents. Notwithstanding the foregoing provisions, Seller shall not be required to prorate any amounts collected by Buyer Seller after Closing from former tenants of the Property, it being understood and agreed that Seller may retain all amounts that Seller recovers from such former tenants.
(c) With respect to additional rent attributable to insurance, taxes, common area maintenance and other operating expenses which are passed through to tenants under the Leases (the “Pass Through Expenses”) and as of the Closing Date are not yet collected, Purchaser shall, upon collection of such Pass Through Expenses, but subject to the same rules of application set forth in Section 4.4(b) above, remit to Seller an amount equal to that portion of Pass Through Expenses which accrued prior to the Closing Date. With respect to Pass Through Expenses which have not been billed to tenants as of the Closing Date, Purchaser shall xxxx each tenant for same in accordance with each such tenant’s Lease. Within one hundred fifty (150) days after the end of 2010, Seller shall, with Purchaser’s reasonable cooperation and contingent upon receipt of any information held by Purchaser and not in the possession of Seller and reasonably necessary to such obligation, prepare a reconciliation of Pass-Through Expenses. Within one hundred fifty (150) days after the end of the year in which Closing occurs, Purchaser shall, with Seller’s reasonable cooperation and contingent upon receipt of any information held by Seller and not in the possession of Purchaser and reasonably necessary to such obligation, prepare a reconciliation of Pass-Through Expenses. In the event that any reconciliation shows that either Seller or Purchaser is owed an adjusting payment, then the party owing such payment shall promptly remit the same.
(d) Charges under service agreements assumed by Purchaser, utility charges for which Seller is liable, and other operating expenses of the Property shall be prorated between Seller and Purchaser at Closing.
(e) Security deposits shall, at Seller’s option, either be transferred or credited to Purchaser at Closing. Refundable cash or other refundable deposits posted with utility companies or other entities in connection with the Property shall, at Seller’s option, either be assigned to Purchaser and credited to Seller at Closing, or Seller shall be first applied entitled to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for receive and retain such purposerefundable cash and deposits. Seller shall have cause its lender and Wellstream International Limited (“Wellstream”) to execute such documents as may be required to cause the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant letter of credit to be delinquent for their current rent or become financially unstable or (b) have transferred to Purchaser as soon as is reasonably practical following the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer Closing and Seller shall deliver cause Wellstream to reduce the amount of its scheduled 2011 letter of credit reduction by Two Thousand Dollars ($2,000) such that it shall be reduced by Seventy-Three Thousand Dollars ($73,000) instead of Seventy-Five Thousand Dollars ($75,000).
(f) Purchaser shall be responsible for the payment of (i) all Tenant Inducement Costs (as hereinafter defined) and leasing commissions which become due and payable (whether before or after Closing) (A) as a result of any renewals or expansions of existing Leases, and (B) under any new Leases (including any amendments of existing Leases) in each instance to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property extent entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date Effective Date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, which have been approved (or deemed approved) by Purchaser in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under accordance with the terms of this Agreement specifically Agreement; and (ii) all Tenant Inducement Costs and leasing commissions which become due and payable under an existing lease for a right exercised after the obligation Effective Date. Seller shall be responsible for all other Tenant Inducement Costs. If as of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in Closing Date Seller shall have paid any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.Tenant Inducement Costs
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Wells Core Office Income Reit Inc)
Prorations. 6.7.1. Real property taxesThe following adjustments to the Purchase Price shall be made between Seller and Purchaser:
(a) The following items, personal property taxesas applicable, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer Purchaser and Seller on a per diem basis as of Close the Closing Date:
(i) all nondelinquent real estate taxes, installments of Escrowgeneral and special assessments, homeowner's association dues, if any, and fire protection service charges, if any, due and payable in the calendar year in which Closing occurs, based upon the most recent information available to Seller. All security deposits If Closing shall occur before the tax rate or assessment for the current year is fixed, the initial proration of such taxes or assessments shall be paid over based upon the latest available information. Thereafter, when the actual tax rate for such current year becomes known, Seller and Purchaser shall, outside of escrow and after Closing, re-prorate any such taxes or assessments to Buyerthe extent that the actual rate thereof was different than the rate used for prorations made at Closing and shall pay, one to the other, any adjustment due as a result of such re-proration;
(ii) current rents for the month in which the Closing occurs as actually paid, advance rentals, nonrefundable deposits and other charges, if any, payable by Tenants under the Leases; and
(iii) all charges for fuel, water, sewer, electricity and other utility services furnished to the Property which are not metered to Tenants. Rents and CAM expenses Seller, to the extent the same is obtainable, shall be approved by Buyer prior to Close furnish meter readings for such utilities through the close of Escrow. Any delinquent rents attributable to periods business on the day prior to the Close Closing. If any such meter readings are not so obtainable, then Seller shall provide meter readings as of Escrow a date not more than thirty (30) days prior to the Closing Date, and the proration of utility charges shall initially be based upon such prior reading. Upon the taking of actual meter readings first after Closing, such proration shall be readjusted outside of escrow after Closing and Seller or Purchaser, as the case may be, shall promptly pay to the other the amount determined to be so due upon such readjustment.
(b) All other items of accrued or prepaid income and expense shall be prorated as of the Closing Date, on the basis of the most recent ascertainable amounts of or other reliable information for each item of income and expense. Seller and Purchaser shall duly cooperate with each other and the Title Company in making prorations, adjustments and credits pursuant to this Section 10 and shall, as requested by the Title Company, furnish to the Title Company such information as is in the possession of or obtainable by them to assist in making such prorations, adjustments or credits. In the event, for any reason beyond the reasonable control of the parties hereto, information necessary to calculate any proration, adjustment or credit for any item required to be prorated, adjusted or credited under this Section 10 is not available prior to Closing, then such items shall be prorated, adjusted or credited outside of escrow after Closing as soon as such information is available, and Seller and Purchaser shall duly cooperate with each other in regard thereto and shall pay, one to the other, any amounts which are collected by Buyer may be owing as a result of any such subsequent proration, adjustment or credit. In the event, at any time within six (6) months after Closing, errors shall be discovered in any prorations, adjustments or credits made pursuant to this Section 10, Seller and Purchaser shall correct such errors and shall pay, one to the other, any sums owning as a result of such correction.
(c) For purposes of all prorations provided for in this Agreement, Seller shall be retained responsible for all days up to the Closing Date, and Purchaser shall be responsible for all days including and after the Closing Date. Except as otherwise expressly provided in this Agreement, all prorations shall be final.
(d) Security deposits, including cleaning and pet deposits, and prepaid rent and any interest thereon, in the amounts set forth in the Leases (or if not set forth therein, as set forth on the Rent Roll) shall be credited to Purchaser at Closing.
(e) If on the Closing Date any Tenant is delinquent in the payment of rent, including any additional rent billed but unpaid at the time of Closing, the delinquent rent attributable to the period prior to the Closing shall remain the property of Seller and be paid to Seller if, as and when collected by or paid Purchaser out of the funds received by Purchaser from such Tenant, and no proration of such delinquent rent shall be made at Closing. For a period of one hundred eighty (180) days after Closing, Purchaser shall use reasonable efforts to attempt to collect and shall remit to Seller any such delinquent rents owing to Seller; provided, however, that (i) Purchaser shall be required only to periodically send bills to the Tenant(s) owing such delinquent rent and shall not be required to commence any litigation or undertake any other collection efforts in regard thereto; and (ii) in the event Purchaser collects rent from a person who owes rent for any period of time after Closing and for a period of time prior to Closing, all amounts collected from such person shall be applied first to the amount of rents owing by Buyer or such person for the period of time after Closing and retained by Purchaser and only the excess, if any, shall be remitted to Seller.
(f) Contemporaneously with the Closing, Seller shall be first applied deliver to any rents then due Purchaser at the offices of Seller's property manager all originals (including computer discs and tapes) of books and records of accounts, contracts, leases, leasing correspondence, receipts for deposits, bills and other papers that pertain to Buyer andthe Property, together with all advertising materials, booklets, keys and other items, if collected by any, used in the Property's operation, provided that Seller, remitted at Seller's cost, may retain a copy of the foregoing items for tax reporting purposes. After the Closing and solely for the purposes of Section 10, Seller, upon at least five (5) days' prior written request to Buyer for such purpose. Seller Purchaser, shall have the right to pursue inspect the books and records for the Property located at the office of Purchaser and/or Purchaser's property manager to verify that Purchaser is remitting to Seller the proper amounts according to this Agreement and for any Tenant for delinquent rent, but shall not (a) cause Tenant other purpose related to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction Seller's prior ownership of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day yearProperty.
6.7.2. All leasing commissions owing and (g) The cost of any tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions paid or incurred by Seller for lease renewals Leases approved by Purchaser and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer paid in full by Seller at or before Closing. Seller shall supply to Purchaser and Seller as their respective periods of ownership bears Title Company paid invoices and final lien waivers for all such tenant improvement work to the primary term of the new Lease subject, in all events, extent performed on or prior to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3Closing Date. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms Any provision of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Propertycontrary notwithstanding, after the Effective Date, Seller shall not undertake any tenant improvement work on any Unit without the prior written consent of Purchaser, such consent not to be unreasonably withheld, conditioned or delayed.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Development Partners Ii), Purchase and Sale Agreement (Development Partners)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, assessmentsif any, rentsfor such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited against the balance of Close of Escrowthe cash due at Closing. All security deposits Assessments payable in installments which are due subsequent to the day before the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close on the basis of Escrowthe most recent ascertainable data. Any delinquent rents attributable to periods prior All prorations will be final except as to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid matters referred to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purposein Paragraph 12.2 below. If the Seller shall have the right to pursue collected from tenants any Tenant payments for delinquent rentutilities, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer taxes, common area expenses, or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close operating expenses in excess of Escrow either party receives any further or supplemental tax xxxx relating to amounts incurred by Seller for any period prior to Close the Closing Date, then Purchaser shall receive a credit for such excess amounts. If Seller is credited for any utilities, taxes, common area expenses, or other operating expenses in excess of Escrowamounts incurred by Seller for any period prior to the Closing Date, then Purchaser shall receive a credit for such excess amounts. If Seller is credited for any utilities, taxes, insurance, CAM or other expenses which Seller has paid applicable to the period prior to the proration date and which are reimbursable by tenants after the Closing, the recipient amount of the credit shall promptly deliver be held in escrow by the Title Company and shall be released to Seller when payment is made by the tenant.
12.2. All basic rent paid following the Closing Date by any tenant of the Property who is indebted under a copy of lease for basic rent for any period prior to and including the Closing Date shall be deemed a "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at reasonable times and expansion optionsupon reasonable notice, shall be paid by of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromcost of performing Seller's audit. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subjectdeed. If, in all eventsfollowing the Closing, Seller receives any rebates or refunds of utility charges, insurance, real or personal property taxes or operating expenses, the amount of such rebate or refund shall be paid to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify Purchaser, and Purchaser shall indemnify, defend and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, the Seller against the claims of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms Tenants with respect to such funds. The provisions of this Agreement specifically become the obligation of Buyer), brought by third parties paragraph shall be confirmed at and based on events occurring on or before the Close of Escrow and which are in any way related to the Propertyshall survive Closing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Sale Agreement (Balcor Equity Pension Investors Iii), Agreement of Sale (Balcor Equity Pension Investors Ii)
Prorations. 6.7.112.1. Real property taxesThe following items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and credited against the balance of the cash due at Closing: i) rents (exclusive of delinquent rents, but including prepaid rents); ii) refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); iii) water and other utility charges; iv) fuels; v) prepaid operating expenses; vi) real and personal property taxes, assessments, rents, taxes and CAM expenses assessments ("Taxes") prorated on a "net" basis based on 105% of the most recent actual tax bills. The amount of the proration shall be prorated through Escrow between Buyer calculated by (1) determining the net amount (the "Net Amount") of (x) the amount of all Taxes accrued but not yet due and Seller payable as of Close the Closing (based on the most recent actual bills), minus (y) the aggregate amount payable by tenants of Escrowthe Property for their respective shares of Taxes for the time period covered by the proration; (2) multiplying the Net Amount by 105%. All security deposits In addition, Seller shall give Purchaser a credit for the aggregate amount actually paid or deposited by tenants of the Property, as of the Closing, for their respective shares of Taxes for the time period covered by the proration; vii) operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and viii) other similar items. Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All monies received after Closing by unlawful detainer or other means. Tax and assessment prorations shall be based on Purchaser from any tenant of the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for rent for any period prior to Close of Escrow, and including the recipient shall promptly deliver a copy Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of such tax xxxx monies to current rent and other charges shall be deemed a "Post-Closing Receipt" but only to the other party, and extent such pre-closing indebtedness has not later than been paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall set forth both current and delinquent rent amounts on tenant bills in an effort to collect all amounts owing from tenants, including those which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at reasonable times and expansion optionsupon reasonable notice, shall be paid by of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromcost of performing Seller's audit. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Agreement of Sale (Balcor Pension Investors Vi), Agreement of Sale (Balcor Pension Investors Vi)
Prorations. 6.7.1. Real property taxesWith respect to each Property, personal property taxes, assessments, rents, the following shall be adjusted between Contributor and CAM expenses Company and shall be prorated through Escrow between Buyer and Seller as of Close 12:01 A.M. local time on the Closing Date as if Company was the owner of Escrowthe Property for the entire Closing Date:
(a) Base rents (and, subject to Section 7.4(d) below, reimbursements for operating expenses, insurance, and Real Estate Taxes) payable under the Leases (the “Rents”) for the month of Closing shall be prorated as of the Closing Date, except that no proration shall be made for Rents which are due as of the Closing Date but which have not been paid by Tenants as of the Closing Date (hereinafter called the “Delinquent Rents”). Any Delinquent Rents collected after the Closing shall be applied as follows: (i) first, to the calendar month for which the payment is made; (ii) second, to post-Closing delinquencies owed to Company; (iii) third, to Company’s costs of collecting post-Closing delinquencies, and (iv) fourth, to pre-Closing delinquencies owed to Contributor. For a period of one hundred twenty (120) days after the Closing, Company shall use reasonable efforts to collect any Delinquent Rents that accrued prior to the Closing Date and to collect from the Defaulting Tenants any delinquent amounts for base rents, additional rents, percentage rents and other Tenant charges, damages, or costs for the period prior to the Closing or otherwise owed and immediately pay to Contributor any such amounts actually collected. Without limiting the foregoing, Contributor shall have the right to pursue all remedies against any Tenant or Defaulting Tenant to collect Delinquent Rents, provided that Contributor may not seek as a remedy in any litigation against a Tenant the termination of any Lease or the dispossession of any Tenant. Contributor and Company each agrees to forward any Rents received by it after the Closing Date to the other, if and as applicable hereunder, for application in accordance with the provisions hereof. This Section 7.4(a) shall survive Closing.
(b) Real Estate Taxes due and payable in the calendar year of Closing relating to the Property shall be prorated as of the Closing Date except to the extent payable or reimbursable by Tenants on an annual or semi-annual basis. If the Closing shall occur before the Real Estate Tax rate is fixed for the then current year, the apportionment of Real Estate Taxes shall be made on the basis of the Real Estate Tax rate for the immediately preceding year applied to the latest assessed valuation of the Property, provided that, if the Real Estate Taxes actually due for the current year are more or less than the Real Estate Taxes for the preceding year, then within thirty (30) days after the issuance of the then current year’s Real Estate Tax xxxx, Contributor and Company shall adjust the proration of such Real Estate Taxes and Contributor or Company, as the case may be, shall pay to the other any amount required as a result of such adjustment.
(c) All security items of expense for the Property, including but not limited to utility charges, maintenance charges, and charges under the Contracts (but excluding any such charges paid or payable directly by Tenants to parties other than Contributor), shall be prorated as of Closing Date. Contributor and Company shall cooperate to arrange for final utility readings as close to the Closing Date as possible and the issuance of a final xxxx to Contributor with Company being designated the billing party in lieu of Contributor for all utilities that may be in the name of Contributor from and after the Closing Date. Contributor shall be entitled to retain any deposits of Contributor held by utility companies with respect to the Property.
(d) Contributor shall be entitled to receive and retain all amounts payable by Tenants as estimated payments for Real Estate Taxes, operating expenses and other pass-through items through the Closing Date. On or before the date that is three (3) days prior to the Closing Date, Contributor shall provide Company with an operating expense statement setting forth (i) the actual costs incurred by Contributor for Real Estate Taxes, operating expenses and other pass-through items during Contributor’s period of ownership that are reimbursable to Contributor, as landlord, by Tenants under the Leases for calendar years 2015 and 2016 (collectively, the “Reimbursable Expenses”); (ii) the Tenant reimbursements for such amounts actually paid to Contributor by Tenants for calendar years 2015 and 2016 (“Actual Tenant Reimbursements”); and (iii) a reconciliation of the difference between the two (i.e., establishing that the Reimbursable Expenses were either more or less than the Actual Tenant Reimbursements). Company shall be responsible for calculating the year-end reconciliations of Tenant reimbursements of such amounts for calendar year 2016 and shall deliver such calculations to Contributor no later than April 1, 2017. Any amount due Contributor pursuant to the foregoing calculations (in the event the Actual Tenant Reimbursements are less than the Reimbursable Expenses) or Company (in the event the Actual Tenant Reimbursements are more than the Reimbursable Expenses), as the case may be, shall be paid over by Company to BuyerContributor or by Contributor to Company, as the case may be, on or before April 30, 2017. Rents and CAM expenses Company shall be approved by Buyer prior use good faith, commercially reasonable efforts to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Sellercollect any additional Tenant reimbursements due from Tenants; provided, however, that any amounts collected by Buyer or Seller Company shall not be first applied required to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue xxx any Tenant for delinquent rentsuch amount or dispossess any Tenant from its premises.
(e) Except as otherwise provided in Section 7.4(b), but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have in the right to seek eviction case of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based Taxes that are imposed on a 360-day year.
6.7.2. All leasing commissions owing periodic basis and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions are payable for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring Tax period that begins on or before the Close Closing Date and ends after the Closing Date (a “Straddle Period”), the portion of Escrow and such Tax which are relates to the Tax period (or portion thereof) ending on or prior to the Closing Date (the “Pre-Closing Period”) shall be (i) in the case of any way Taxes other than Taxes based upon or related to income, gains or receipts (including sales and use Tax), or employment or payroll Taxes, be deemed to be the Property.
6.7.4amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Straddle Period ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period, and (ii) in the case of any Tax based upon or related to income, gains or receipts (including sales and use Tax), or employment or payroll Taxes, be deemed equal to the amount which would be payable if the Straddle Period ended on the Closing Date based on an interim closing of the books. Buyer agrees to After the Closing, Contributor shall, be responsible for and shall indemnify the Company (and each of its members) and hold Seller it harmless from and against: (x) all Taxes relating to the Properties for all Pre-Closing Periods, (y) with respect to any Straddle Period, all Taxes relating to the Properties attributable to the portion of such Straddle Period that ends on and from includes the Closing Date, and (z) any and all liabilities, claims, demands, suits and judgments, Taxes of any kind Person imposed on any of the Entities or natureany member of the Entities as a transferee or successor, including court costs and reasonable attorneys feesby contract or otherwise, brought which Taxes relate to an event or transaction occurring before the Closing.
(f) Contributor shall calculate the prorations contemplated by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.this Section 7.4
Appears in 2 contracts
Samples: Contribution Agreement (Pillarstone Capital Reit), Contribution Agreement (Whitestone REIT)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); prepaid or accrued (as the case may be) interest on the Existing Bond and Mortgage Documents, water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 5%; real and personal property taxes, assessments, rents; and other similar items shall be adjusted ratably as of 12:01 a.m. on the Closing Date, and CAM expenses credited against the balance of the cash due at Closing. To the extent any escrows or bond repayment deposits established in connection with the Bonds or Existing Bond and Mortgage Documents are not refunded to Seller at Closing, the proceeds in said escrows shall be prorated through Escrow between Buyer assigned to Purchaser and the amounts thereof shall be a credit to Seller as of Close of Escrowat the Closing. All security deposits Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the Closing Date by unlawful detainer or other means. Tax and assessment prorations shall be based on any tenant of the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, the recipient all current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller, Purchaser shall use reasonable efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder, but shall not be liable to Seller for its failure to collect same. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at the expense of Seller at reasonable times and expansion optionsupon reasonable notice, shall be paid by of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts, and Seller in the event Seller's audit discovers additional Post-Closing Receipts greater than $5,000.00, Purchaser shall indemnify and hold Buyer harmless for lease commission claims brought against pay the Real Property arising therefromcost of performing Seller's audit. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Agreement of Sale (Balcor Realty Investors 85 Series I), Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. 6.7.13.2.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses The following shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements apportioned with respect to the Real Property entered into as of the end of the Transition Period (as defined in Section 6.1.1), as if Purchaser were vested with title to the Property as of the end of the Transition Period.
(a) rents, if any, as and when collected (the term “rents” as used in this Agreement includes all payments due and payable by Tenants under the Leases);
(b) taxes (including personal property taxes on the Personal Property) and assessments levied against the Property;
(c) payments under the Contracts;
(d) gas, electricity and other utility charges for 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 execution of Closing; and
(e) any other accrued or prepaid operating expenses for the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all eventsand, to the prior approval extent customarily prorated between a purchaser and a seller in the Commonwealth of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from Massachusetts, any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those other items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related pertaining to the Property.
6.7.43.2.2. Buyer agrees Notwithstanding anything contained in the foregoing provisions:
(a) At Closing, Seller shall deliver to indemnify Purchaser any security deposits and hold Seller harmless prepaid rents (for periods on or after the end of and from any and all liabilities, claims, demands, suits and judgments, of any kind the Transition Period) under the Leases or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent credit to the Close account of Escrow Purchaser the unapplied amount of such security deposits and prepaid rents. All prepaid rents covering the period of time commencing on or after the end of the Transition Period shall be delivered by Seller to Purchaser on the Closing Date, or Purchaser may elect to receive a credit against the Purchase Price in the amount of such prepaid rents.
(b) Any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and assessments for the current year have not been paid before Closing, Seller shall be charged at Closing an amount equal to that portion of such taxes and assessments which are in any way related relates to the Propertyperiod before the end of the Transition Period and Purchaser shall pay the taxes and assessments prior to their becoming delinquent. Any such apportionment made with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed shall be based upon the most recent ascertainable, and shall be re-prorated post-Closing once final taxes and assessments for such period have been determined.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Global Partners Lp)
Prorations. 6.7.1. Real property taxesThe following items relating to the Assets and the ownership and operation of the Generating Assets will be allocated pro rata per diem for the tax year that includes the date of Closing, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and with Seller as of Close of Escrow. All security deposits shall be paid over liable for such items to Buyer. Rents and CAM expenses shall be approved by Buyer prior the extent they are allocable to Close of Escrow. Any delinquent rents attributable to periods the period prior to the Close date of Escrow the Closing and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer Purchaser liable for such purpose. Seller shall have items to the right extent they are allocable to pursue any Tenant for delinquent rent, but shall not periods beginning with and subsequent to the Closing:
(a) cause Tenant Property Taxes on or with respect to be delinquent for their current rent or become financially unstable or the Assets.
(b) have Rents, additional rents, Taxes, to the right extent normally adjusted in connection with similar transactions, and other items payable by Seller under the Real Property Leases and the Business Contracts.
(c) The amount of rents, Taxes and charges for sewer, water, telephone, electricity and other utilities relating to seek eviction the Real Property and the real property subject to the Real Property Leases.
(d) All other items (excluding other Taxes) normally adjusted in connection with similar transactions. Except as otherwise agreed by the parties, the net amount of all such prorations will be settled and paid as of date of the Tenant by unlawful detainer or other meansClosing. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten At least ninety (1090) days prior to date of the delinquency date shown Closing, Seller will provide Purchaser with a reasonably detailed schedule showing a calculation of the estimated prorations as if the Closing were occurring on such tax xxxx Buyer and Seller date. If the Closing shall deliver to occur before a real estate Tax rate is fixed, the taxing authority their respective shares apportionment of such tax xxxx, prorated as of Close of Escrow. All prorations Taxes shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect upon the Tax rate for the preceding year applied to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals latest assessed valuation and expansion options, such Taxes shall be paid by reprorated upon the request of Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against on the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed one hand, or Purchaser, on the other hand, made within sixty (60) days after the date that the actual amounts become available. Seller and Purchaser agree to furnish each other with such documents and other records as may be reasonably requested in order to confirm all adjustment and proration calculations made pursuant to this Section 1.06. To the extent required by any approval of this Agreement shall be prorated between Buyer and Seller as their respective periods the transfer of ownership bears the FERC project licenses related to the primary term of the new Lease subjectHydro Units, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and pay all liabilities, claims, demands, suits, and judgments, annual charges accrued under such licenses as of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertyClosing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Pp&l Inc), Asset Purchase Agreement (Pp&l Resources Inc)
Prorations. 6.7.1. Real property taxesNotwithstanding anything to the contrary in any CAPCO Agreement:
(a) The Parties agree that all of the items normally prorated, personal property taxesincluding those listed below (but not including Income Taxes), assessments, rents, relating to the business and CAM expenses operation of the DLC Nuclear Assets shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over the DLC Nuclear Closing Date, with DLC liable to Buyer. Rents and CAM expenses shall be approved by Buyer prior the extent such items relate to Close of Escrow. Any delinquent rents attributable to periods any time period prior to the Close DLC Nuclear Closing Date, and the applicable Specified FE Subsidiary liable to the extent such items relate to periods commencing with the DLC Nuclear Closing Date (measured in the same units used to compute the item in question, otherwise measured by calendar days):
(i) Personal property, real estate and occupancy Taxes, assessments and other charges, if any, on or with respect to the business and operation of Escrow the DLC Nuclear Assets;
(ii) Rent, Taxes and which are collected by Buyer all other items (including prepaid services or Seller shall be retained goods not included in Inventory) payable by or paid to Seller; provideda DLC under any of the DLC Nuclear Agreements;
(iii) Any permit, howeverlicense, that any amounts collected by Buyer registration, compliance assurance fees or Seller shall be first applied other fees with respect to any Transferable Permit;
(iv) Sewer rents then due and charges for water, telephone, electricity and other utilities with respect to Buyer the DLC Nuclear Assets;
(v) Rent and Taxes payable by DLC under the Real Property Leases assigned to the applicable Specified FE Subsidiary; and
(vi) ANI and XXXX insurance premiums for the current year or other applicable policy period;
(vii) Impositions and fees payable to the Department of Energy and the NRC; and
(viii) Membership fees in respect of the Institute for Nuclear Power Operator, if collected by Seller, remitted the Nuclear Energy Institute and similar organizations involved solely in nuclear matters.
(b) In connection with the prorations referred to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not in Section 3.4 (a) cause Tenant above, in the event that actual figures are not available at the DLC Nuclear Closing Date, the proration shall be based upon the actual Taxes or other amounts accrued through the DLC Nuclear Closing Date or paid for the most recent year (or other appropriate period) for which actual Taxes or other amounts paid are available. Such prorated Taxes or other amounts shall be re-prorated and paid to be delinquent for their current rent or become financially unstable or the appropriate Party within sixty (b60) have the right to seek eviction days of the Tenant by unlawful detainer or other meansdate that the previously unavailable actual figures become available. Tax and assessment The prorations shall be based on the latest available tax xxxx. If after Close number of Escrow either party receives any further days in a year or supplemental tax xxxx relating to any other appropriate period prior to Close of Escrow, (i) before the recipient shall promptly deliver a copy of such tax xxxx to the other party, DLC Nuclear Closing Date and not later than ten (10ii) days prior to the delinquency date shown on such tax xxxx Buyer including and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall DLC Nuclear Closing Date. The Parties agree to furnish each other with such documents and other records as may be prorated between Buyer reasonably requested in order to confirm all adjustment and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer proration calculations made pursuant to Paragraph 7.3this Section 3.4.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Nuclear Generation Conveyance Agreement (Duquesne Light Co), Nuclear Generation Conveyance Agreement (Dqe Inc)
Prorations. 6.7.113.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; management fees in the amount of 6% of prorated rents credited to Purchaser; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, assessmentsif any, rentsfor such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated through Escrow between Buyer at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of Close business), then Purchaser shall be charged its portion of Escrowsuch payment at Closing. All security No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to Close the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties. The fees or commissions payable to said consultants (if any) shall be treated as a portion of Escrowthe real estate tax liability to be pro-rated as of the Closing Date. Any delinquent rents attributable to periods All costs associated with telephone directory listings and any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be responsible for any costs associated therewith prior to the Close of Escrow Closing Date and which are collected by Buyer or Seller Purchaser shall be retained by or paid responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement (except prorations for real and personal property taxes which shall be deemed final as prorated on the Closing Date) shall be subject to Sellerpost-closing adjustments as necessary to reflect later relevant information not available at the Closing and to correct any errors made at the Closing with respect to such prorations; provided, however, that such prorations shall be deemed final and not subject to further post-closing adjustments at 5:00 PM Chicago time on the day which is thirty (30) days following Closing, at which time all prorations shall be deemed final and not subject to further post-closing adjustment. The provisions of the preceding sentence shall survive the Closing.
13.2. Rents which are delinquent as of the Closing Date shall not be prorated. Instead, to the extent that Purchaser is able to collect said delinquencies, the Purchaser shall be entitled to receive such delinquent rent attributable to a tenant's occupancy of a portion of the Real Property for any amounts collected period prior to the date of Closing, free from any claim thereon by Buyer or the Seller. Seller may use whatever lawful means are available to Seller to collect any delinquencies up to and until the day prior to the Closing Date, provided that Seller shall be first applied not agree to reduce rents for any period of time after Closing in order to induce any tenants to pay delinquent rents. Seller shall not have the right subsequent to Closing to seek (by legal action or otherwise) the collection of any rents delinquent for any period prior to Closing unless the tenant has vacated the premises under the pertinent Lease before the Closing Date and said Lease is not assigned to the Purchaser. Furthermore, the Seller shall not have the right to retain any portion of any security deposit held by Seller (if any) with respect to any rents then due Lease which will remain effective subsequent to Buyer andClosing, if collected even though the tenant is delinquent in paying rent as of the Closing Date.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall grant (or shall arrange for the owner thereof to grant) to Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, remitted in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to Buyer for the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such purpose. Seller period, Purchaser shall have the right to pursue any Tenant for delinquent rentuse the existing logos, but in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not (a) cause Tenant use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to be delinquent for their current rent or become financially unstable or oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to seek eviction place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the Tenant by unlawful detainer cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or other means. Tax and assessment prorations billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be based responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the latest available tax xxxxdate(s) set forth above. If after Close of Escrow either party receives any further or supplemental tax xxxx relating Purchaser continues to any period prior to Close of Escrow, use the recipient shall promptly deliver a copy of such tax xxxx name currently being used by the Property subsequent to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the expiration date of this Agreement temporary license set forth above, then Purchaser shall be prorated between Buyer liable for and Seller as their respective periods of ownership bears shall pay to the primary term owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the new Lease subject, in all events, state where such Property is located to the prior approval of said Leases as herein provided prevent such unauthorized use or to recover any damages authorized by Buyer pursuant to Paragraph 7.3such laws.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Sale Agreement (Balcor Colonial Storage Income Fund 86), Sale Agreement (Balcor Colonial Storage Income Fund 86)
Prorations. 6.7.1. Real property taxes, 15.1 Water and other utility charges; fuels; prepaid operating expenses; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilities, assessmentsif any, rents, and CAM for such items); operating expenses shall be prorated through Escrow between Buyer and paid by Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved which are reimbursable by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods the tenants for the period prior to the Close Closing Date, less any amount previously paid by the tenants; unpaid operating expenses for the period prior to the Closing Date prorated on a "net" basis, as set forth above; and all other items of Escrow expense and which are collected by Buyer or income shall be adjusted ratably as of 12:01 a.m. on the Closing Date ("Proration Date"). Seller shall be retained by or paid entitled to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer anda credit for all transferable utility deposits transferred hereunder, if collected any, and all other utility deposits, if any, may be withdrawn by Sellerand refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, remitted to Buyer for such purpose. Seller shall have excluding regular ad valorem real estate taxes, payable in
15.2 All basic rent paid following the right to pursue Closing Date by any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction tenant of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a Lease for basic rent for any period prior to Close the Proration Date in an amount greater than the amount of Escrowall current basic rent owed by said tenant to Purchaser shall be deemed a "Post-Closing Receipt" until the earlier to occur of (i) one year after the Closing Date, the recipient shall promptly deliver a copy of or (ii) such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days following the end of each calendar month, Purchaser shall pay to Seller Post-Closing Receipts collected in the previous month. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 30 days after the one-year anniversary of the Closing Date, upon the written request of Seller, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first year after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Purchaser's obligations to attempt to collect Post- Closing Receipts shall expire one year from the Closing Date. Seller shall retain the right to sue any tenant for rent owed to Xxxler for any period prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of EscrowProration Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date This Paragraph 15.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Deed.
6.7.3. 15.3 Seller agrees covenants to indemnify operate, maintain and hold Buyer harmless from any manage the Property in the same manner that it has managed, maintained and all liabilitiesoperated the Property during the period of Seller's ownership, claims, demands, suits, subject to reasonable wear and judgments, of any kind or nature, including court costs tear and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Propertycasualty.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Sale Agreement (Balcor Equity Pension Investors Ii), Sale Agreement (Balcor Equity Pension Investors I)
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses The Purchase Price for the Property shall be prorated through Escrow between Buyer subject to prorations and Seller credits as follows to be determined as of Close of Escrow. All security deposits shall be paid over to Buyer12:01 a.m. on the Closing Date:
1. Rents and CAM expenses shall be approved by Buyer prior to Close of EscrowPayable Under Tenant Leases. Any delinquent portion of any rents attributable collected subsequent to the Closing Date and properly allocable to periods prior to the Close Closing Date, net of Escrow and which are collected by Buyer or Seller Purchaser's third-party costs of collection, if any, shall be retained by or paid, promptly after receipt, to the Seller, but subject to all of the provisions of this Section; and any portion thereof properly allocable to periods subsequent to the Closing Date, if any, shall be paid to Seller; provided, however, that any amounts Purchaser. Any amount collected by Buyer or Seller from a tenant shall first be first applied to any rents such tenant's current monthly rental and then to past due to Buyer and, if collected amounts in the reverse order in which they were due. Any advance rental payments or deposits paid by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days tenants prior to the delinquency date shown Closing Date and applicable to the periods of time subsequent to the Closing Date and any security deposits or other amounts paid by tenants, together with any interest on both thereof to the extent such tax xxxx Buyer interest is due to tenants, shall be credited to Purchaser on the Closing Date. No credit shall be given the Seller for accrued and unpaid rent or any other non-current sums due from tenants until said sums are paid.
2. Motel Room, Restaurant and Bar Revenues. Purchaser shall be entitled to all food service, bar, beverage and liquor revenues and charges and all revenues and charges from restaurant operations, Motel banquet and conference facility operations, and all other revenue of any kind attributable to any of the same for the period on and after 12:01 a.m. on the Closing Date. Purchaser shall pay over to Seller all collections of accounts receivable in connection with the Properties which have accrued as of Closing (the "Closing Accounts Receivable"). By no later than sixty (60) days after Closing, Purchaser shall pay to Seller an amount equal to the remaining Closing Accounts Receivable, minus those uncollectible Closing Accounts Receivable as agreed upon by Purchaser and Seller. Seller shall deliver to Purchaser or provide Purchaser a credit against the taxing authority their respective shares of such tax xxxx, prorated as of Close of EscrowPurchase Price for the Properties in an amount equal to all guest reservation deposits held by the Motels for Motel guests arriving or staying after check-out time for the Motel on the Closing Date. All prorations collections of Motel receivables from any party after Closing shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect applied first to the Real Property entered into receivables due from such party which have accrued prior to execution of the Agreement including, but not limited to, commissions for lease renewals Closing and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed second to receivables due from such party which have accrued after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Closing.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Super 8 Motels LTD), Purchase and Sale Agreement (Super 8 Motels LTD)
Prorations. 6.7.1. Real Escrow Holder will prorate between the parties, in Cash, to the Close of Escrow, an amount calculated by multiplying the Total Sales Percentage by each of the following: (a) 2012 state, County, city and special district (if any) real property taxes, personal special taxes and assessments for the Project based on the latest information available to Escrow Holder (i.e., $4,205,805 real property taxestaxes for the 2012 tax year calculated using the total assessed value provided in the 2012 First Pass Assessment (i.e., assessments$25,953,750) and the effective tax rate for 2011), rents(b) rental payments, other revenues and CAM expenses shall be prorated through and (c) any other items Seller and Buyer mutually instruct Escrow between Buyer and Seller as of Holder to prorate prior to the Close of Escrow. All security deposits rental payments and other tenant charges and additional rents received by Buyer from a tenant after the Closing Date shall be paid over applied first to Buyercollection costs and then to the most recently accrued obligation of such tenant. Rents After application as set forth above, Buyer shall remit to Seller on the Final Adjustment Date (as defined below) that portion of rentals and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent other tenant charges and additional rents received after the Closing Date attributable to periods prior to the Close month of Escrow Closing, and which are collected by Buyer or Seller shall be retained by or paid if attributable to the month of Closing, Seller’s share thereof in accordance with the proration set forth above; provided, however, that any amounts collected by Buyer or Seller rent received from the United States of America, the Department of Homeland Security and Department of Justice, and Internal Revenue Service Department of Treasury, Bureau of Alcohol, Tobacco and Firearms shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant deemed to be delinquent payment for their current the prior month’s outstanding rent or become financially unstable or (b) have due. In the right event any prorations made under this Agreement shall prove to seek eviction be incorrect for any reason, then any party shall be entitled to an adjustment to correct the same. Any item which cannot be finally prorated because of the Tenant by unlawful detainer or other means. Tax and assessment prorations unavailability of information shall be based tentatively prorated on the latest basis of the best data then available tax xxxxand re-prorated when the information is available. If after Close of Escrow either party receives any further or supplemental tax xxxx relating items to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and be adjusted are not later than ten determinable at Closing (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion optionsitems set forth in this Article 5), the adjustment shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring made subsequent to the Close Closing within thirty (30) days following the final determination of Escrow 2012 taxes and which are in assessments for the Project (the “Final Adjustment Date”). The provisions of this Article 5 and the obligations of Sellers and Buyer hereunder shall survive the Closing and shall not be deemed merged into any way related to the Propertyinstrument delivered at Closing.
Appears in 2 contracts
Samples: Purchase Agreement (NNN 2002 Value Fund LLC), Purchase Agreement (G REIT Liquidating Trust)
Prorations. 6.7.1. Real property taxesA. Rents (exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; prepaid operating expenses; 1996 (if not paid) and 1997 real and personal property taxes, assessments, rents, taxes and CAM expenses other similar items shall be prorated through Escrow between Buyer and Seller adjusted ratably as of Close 12:01 a.m. on the Closing Date. Assessments of Escrow. All security deposits record (other than ad valorem taxes) payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant most recent ascertainable data. The parties agree to re-prorate the proration items within forty-five (45) days after the date of Closing, except as to delinquent rent referred to in Paragraph 12B below.
B. All sums paid following the Closing Date by unlawful detainer or other means. Tax and assessment prorations shall be based on any tenant of the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, the recipient all then current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. For a period of sixty days following Closing, Purchaser shall send monthly collection notices to tenants residing at the delinquency date shown on such tax xxxx Buyer Property owing Post-Closing Receipts. Within 90 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 60 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. At Seller's expense, Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller shall deliver to Purchaser any sums received by Seller after the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect Closing Date which relate to the Real Property entered into prior to execution period of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed time after the date Closing Date, along with an accounting identifying any such sums. Paragraph 12B of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1. Real property taxesAll normal and customarily proratable items, including without limitation, real estate and personal property taxes, taxes and assessments, rentsutility bills (except as hereinafter provided), collected rents and other income, and CAM expenses Operating Contract payments (under Operating Contracts assumed by Buyer), shall be prorated through Escrow between Buyer and Seller as of Close the Closing Date, Seller being charged and credited for all of Escrowthe same relating to the period up to the Closing Date and Buyer being charged and credited for all of the same relating to the period on and after the Closing Date. All security deposits If the amount of any such item is not known at the time of the delivery of the Deed, such item shall be apportioned on the basis of the comparable period of the prior year with a reapportionment within thirty (30) days of the Closing Date or as soon thereafter as the amount of the item is actually determined. No proration shall be made in relation to delinquent rents, common area expense charges or tax payments (collectively, “Delinquent Rents”) existing, if any, as of the Closing Date. To the extent that such Delinquent Rents or reimbursement obligations are paid over or payable after Closing, Buyer agrees to Buyer. use reasonable efforts to secure said Delinquent Rents and CAM expenses reimbursements from the tenants (with no obligation, however, to incur any additional out-of-pocket costs with respect thereto) and as soon as the same are received by Buyer, said receipts shall be approved applied first to any amounts expended by Buyer prior to Close secure Delinquent Rents, then to the rents owed by such tenant for any period after Closing, then to the rents owed by such tenant for the month of Escrowthe Closing, and then to Delinquent Rents. Any delinquent rents attributable Seller reserves the right to periods bring suit against tenants of the Property to collect for Delinquent Rent (and other charges due to Seller for the period prior to the Close of Escrow and which are collected by Buyer or Closing) but Seller shall be retained by or paid to Seller; providedmay not, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close date hereof, bring suit for possession of Escrow and which are in any way related to the Propertypremises occupied by such tenants.
Appears in 1 contract
Samples: Purchase and Sale Contract (New England Realty Associates Limited Partnership)
Prorations. 6.7.1. 2.7.1 Real property taxes, personal property taxes, assessments, rents, security deposits, and CAM common area expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits , Draft prorations of the real property taxes, assessments, rents and common area maintenance expenses shall be paid over delivered by Seller to Buyer. Rents Buyer and CAM Escrow Holder five (5) days prior to Close of Escrow, The prorations of the real property taxes, assessments, rents and common area expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause a Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. unstable, Tax and assessment prorations shall be based on the latest available tax xxxx. If If, after Close of Escrow either party Escrow, Buyer receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax xxxx relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. 2.7.2 All leasing commissions owing and tenant improvements with respect to the Real Property transactions entered into prior to execution of the this Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease Lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases and for Lease renewals and expansion options executed after the date of this Agreement in accordance with the terms of Paragraph 3.4.2 shall be prorated between Buyer and Seller as their respective periods of ownership bears bear to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Lease.
6.7.3. 2.7.3 Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on conditions or events occurring on or before the date of Close of Escrow and which are in any way related to the Property, and all expenses related thereto, including, but not limited to, court costs and attorneys' fees.
6.7.4. 2.7.4 Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys attorneys' fees, brought by third parties and based on conditions or events occurring subsequent to the date of Close of Escrow and which are in any way related to the Property, and all expenses related thereto, including, but not limited to, court costs and attorneys' fees.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NNN 2002 Value Fund LLC)
Prorations. 6.7.1. Real property taxes(A) Rents, personal property taxesincluding, assessmentswithout limitation, percentage rents, if any, and CAM any additional charges and expenses payable by tenants under Leases, all as and when actually collected; real property taxes and assessments due and payable in the year in which the Closing occurs (without regard to the date levied, assessed or accrued and without regard to any fiscal year) (provided there shall be no proration of delinquent rents to Seller until such delinquent rents are collected); water, sewer and utility charges; amounts payable under any Service Contracts or other agreements or documents; annual permits and/or inspection fees (calculated on the basis of the period covered); maintenance charges and amounts payable under reciprocal easement agreements and other recorded documents; vending machine and paper recycling income; and any other income and expenses of the operation and maintenance of the Property (including, without limitation, expenses prepaid by Seller and expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the prepaid or unamortized portion thereof), shall all be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer 11:59 p.m. on the day immediately prior to Close of Escrow. Any delinquent rents attributable to periods prior Closing (i.e., Buyer is entitled to the Close income and responsible for the expenses of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Sellerthe day of Closing), on the basis of a 365-day year; provided, however, that any real estate taxes payable directly by tenants to the governing taxing authorities or reimbursable by tenants after Closing shall not be prorated. Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions, as provided in Section 7.2. All rents and other sums collected after the Closing shall be applied and paid as provided in this Section 8.5(a). If a tenant or other payor shall specifically designate a payment as being attributable to, or if it is readily ascertainable that a payment received from a tenant or other payor is attributable to a specific period of time or for a specific purpose, including, without limitation, for operating expenses or real estate tax payments which were not paid or were underpaid by such tenant or for reimbursement for work performed by Seller on the tenant's premises, such payment shall be so applied. If there is no such designation or if not so readily ascertainable, any payment received after Closing shall be deemed a payment due after the Closing until the tenant or other payor is current in its post-Closing obligations, and then such payments shall be paid to Seller to the extent of any rent or other sums owing to Seller for periods prior to Closing. Buyer shall use reasonable efforts to collect such rents and other sums owing to Seller but shall not be required to initiate litigation or terminate any lease. Seller retains the right to collect any such rents and other sums from tenants and other payors after Closing; provided, however, that Seller shall have no right to evict any tenant or to exercise any other landlord-tenant remedy other than to sue for collection. Without intending to limit the generality of the xxxegoing, Buyer and Seller acknowledge and agree that certain rental payments by the tenants are collected monthly in arrears and, upon receipt of such payments after Closing, such sums shall be applied toward the period to which they properly pertain, and shall be prorated between Seller and Buyer, with the party receiving same promptly paying to the other party such other party's share thereof. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the calendar year in which the Closing occurs shall be prepared by Buyer with the cooperation of Seller within ninety (90) days following the end of such year in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(a). For those Leases in which tenants pay a proportionate share of taxes, insurance charges or other expenses over a base year amount or expense stop, the proration between the parties of the income received from tenants over such base year amount or expense stop shall be calculated based on the total amount of such expenses for the Property incurred by both Seller and Buyer for the entire calendar year, rather than on the amount of such expenses actually incurred by each party for such year, in order to enable the parties to determine if the base year amount or expense stop for such year is exceeded. Such income as so calculated shall be prorated between the parties based on the number of days each party owned the Property during such year and otherwise in accordance with this Section 8.5(a). Buyer shall promptly reimburse Seller for Seller's prorated share of all expenses that are prepaid by Seller before Closing for which Buyer receives reimbursement from a third party after Closing. The amount of any cash security deposits held by Seller under Leases (plus any interest thereon accrued prior to the date of Closing, if required by law or contract) shall be credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposits). Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property to the extent such deposits are assignable to Buyer and are so assigned or credited to Buyer at Closing. Buyer shall cause all utilities to be transferred into Buyer's name and account at the time of Closing. At Closing, Seller shall transfer to Buyer all non-cash security deposits and deliver to Buyer all necessary consents to such transfers (or as soon as reasonably practicable after Closing, if the procedures for such transfer reasonably require a delay in transfer until after the Closing). Between the date of Closing and until such transfer takes place, Seller agrees to hold any such non-cash security deposit for the benefit of Buyer. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date or in the case of rents or other charges that are paid in arrears or are otherwise not yet ascertainable or payable as of the Closing Date, then the same shall be calculated as soon as reasonably practicable after the Closing Date or the date such amounts collected have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the other party within thirty (30) days thereafter. Any amounts not paid within such thirty (30) day period shall bear interest from the date actually received by the payor until paid at the greater of (i) the rate of ten percent (10%) per annum or (ii) the prime rate (or base rate) reported from time to time in the "Money Rates" column or section of THE WALL STREET JOURNAL as being the base rate on corporate loans at larger United States money center commercial banks plus two (2) percent. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the payments received by such party from tenants and other payors from and after Closing and to the manner in which such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice. Any tax refund received by Buyer or Seller after Closing (net of third party costs incurred in obtaining such refund) shall be first applied paid to any rents then due to Buyer andthe party(ies) who previously paid or were responsible for such taxes, if collected by whether it be Seller, remitted to Buyer for such purposeBuyer, or tenants under the Leases, and shall be prorated appropriately. The preceding sentence shall survive Closing.
(B) The cost of the owner's policy of title insurance and all other title charges (including the cost of any extended coverage, endorsements and reinsurance or co-insurance charges) and the cost of the Survey shall be paid one-half by Seller and one-half by Buyer. Seller and Buyer shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction each pay one-half of the Tenant by unlawful detainer state deed tax in connection with recording the deed and all recording fees. Any closing escrow fees and other closing charges of the Title Company shall be split equally between Seller and Buyer. Buyer shall be solely responsible for any and all costs and expenses pertaining to its financing of the Property (although Buyer obtaining any financing is not a condition to its obligations hereunder), including, without limitation, loan title policies, lender's escrow and closing fees and all intangibles and mortgage taxes. The parties will execute and deliver any required transfer or other means. Tax and assessment prorations similar tax declarations to the appropriate governmental entity at Closing.
(C) The total annual percentage rent payable under each Lease for the lease year in which the Closing occurs shall be prorated between Seller and Buyer based solely on the respective number of days of ownership of the Property by Seller and Buyer during such year, regardless of what portion of sales occur during the different parts of such year. At Closing, the parties shall estimate the total percentage rent payable under each Lease for the applicable lease year based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period percentage rent paid under such Lease for the prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify receive a credit at Closing for its prorata share thereof. Once the final amount of percentage rent is determined, the parties shall reprorate, and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed party owing the other shall promptly remit the amount owed no later than fifteen (15) days after the date reproration is determined.
(D) The provisions of this Agreement Section 8.5 shall be prorated between Buyer and Seller as their respective periods of ownership bears to survive the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Closing.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Prorations. 6.7.16.2. Real property taxes1Prorations. All income and expenses of the Property shall be apportioned as of 12:01 a.m. EST on the Closing Date, personal property taxes, assessments, rentswith the Operating Partnership being deemed to be the owner of the Property during the entire day on which the Closing Date occurs and being entitled to receive all revenue of the Property, and CAM being obligated to pay all expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over the Property, with respect to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not day.
(a) cause Tenant Such prorated items shall include the following:
(i) any other income with respect to be delinquent the Property received by the Closing Date, if any, and for their the current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other meansmonth not yet delinquent. Tax and assessment prorations Such proration shall be based on an operating statement updated not less than 1 day prior to the latest available Closing Date;
(ii) taxes and assessments (including personal property taxes on the Fixtures and Personal Property) levied against the Property, the Contributor, subject to the Escrow Agents approval, shall escrow the funds for real estate taxes now due or delinquent for 2021, or that may becoming due and payable against the Property up and to Closing. For the avoidance of doubt, the foregoing escrow requirement is an accommodation to the Contributor to pursue payment of the its tax xxxx, however, under no circumstance shall any delinquent payment of taxes occur or a lien be created, and if for any reason the Contributor cannot satisfy the amounts, then the Escrow Agent shall be directed to pay the then due and owing taxes.
(iii) utility charges for which the Contributor is liable, if any, such charges to be apportioned at the Closing on the basis of the most recent meter reading occurring prior to the Closing (dated not more than 15 days prior to the Closing) or, if unmetered, on the basis of a current xxxx for each such utility;
(iv) all amounts payable with respect to Assumed Liabilities in effect as of the Closing;
(v) credit shall be given to the Contributor for interest accounts, impound accounts, escrow accounts and other reserves included within the Existing Loans, which shall be transferred to the Operating Partnership at the Closing;
(vi) room charges for the night before the Closing Date and ending on the morning of the Closing Date shall be split between the Contributor and the Operating Partnership on a fifty/fifty (50/50) basis and
(vii) any other operating expenses or other items pertaining to the Property which are customarily prorated between a transferor and transferee of real estate in the county in which the Property is located.
(b) Notwithstanding anything contained in this Section 6.2.1, the following shall apply:
(i) The Operating Partnership shall be entitled to a credit against the Contributor’s Total Consideration to be delivered for the total sum of all deposits with respect to the Assumed Liabilities (not including interest accounts, impound accounts, escrow accounts and other reserves included within the Existing Loans, which shall be addressed in accordance with Section 6.2.1(a)(v) above) (the “Property Deposits”) to the extent not paid over to the Operating Partnership, and the Operating Partnership shall assume at the Closing the obligation under the Assumed Liabilities with respect to all Property Deposits credited or paid over to the Operating Partnership;
(ii) Except as provided in the following sentence, all delinquent real estate taxes and assessments shall be paid by the Contributor at or before the Closing, together with any interest, penalties or other fees related to any delinquent taxes. If after Close of Escrow either party receives any further or supplemental tax xxxx In determining prorations relating to any non-delinquent taxes, the Operating Partnership shall be credited with an amount equal to the real estate taxes and assessments applicable to the period prior to Close of Escrowthe Closing Date, to the extent such amount has not been actually paid by the Contributor. In the event that the Contributor has paid prior to the Closing any real estate taxes or assessments related to the Property applicable to the period after the Closing Date, the recipient Contributor shall be entitled to a credit for such amount. In connection with the re-proration of real estate taxes and assessments for which a credit was given or a proration was made at the Closing, the Parties shall adjust the differences between them promptly upon demand being made therefor by either the Contributor or the Operating Partnership. If, after the Closing, any additional real estate taxes or assessments applicable to the period prior to the Closing Date are levied for any reason, including back assessments or escape assessments, then the Contributor shall pay all such additional amounts, including any additional fees and interest, if any. If, after the Closing, the Contributor or the Operating Partnership receive any property tax refunds regarding any Property relating to a period prior to the Closing, then that portion of the refunds related to a period prior to the Closing that is required to be refunded to any tenant of the Property shall be delivered to or retained by, as the case may be, the Operating Partnership for the purpose of making such refund payments with the remaining portion of such refunds retained by or delivered to, as the case may be, the Contributor. The Operating Partnership shall pay all supplemental taxes resulting from the change in ownership and reassessment occurring as the result of the Closing pursuant to this Agreement;
(iii) The Operating Partnership shall take all steps necessary to effectuate the transfer of all utilities to the name of the Operating Partnership as of Closing, where necessary, post deposits with the utility companies, and provide the Contributor with written evidence of the transfer at or prior to Closing. The Contributor shall be entitled to recover any and all deposits held by any utility company as of the Closing Date;
(iv) The net proration credit to or charge against the Contributor on account of the prorations adjustments to be made upon the Closing shall be reflected through an adjustment to the cash portion of the Contributor’s Total Consideration to be delivered pursuant to this Agreement. Any other proration adjustments made following the Closing shall be made in cash; and
(v) If any prorations hereunder cannot be calculated accurately on the Closing Date, then they shall be calculated as soon after the Closing Date as feasible. Either party owing the other party a sum of money based on such subsequent proration(s) shall promptly deliver a copy of such tax xxxx pay said sum to the other party, and not later than ten (10) days prior with interest per annum at the prime rate of interest as set forth in The Wall Street Journal, plus 2% from the Closing Date to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement payment if payment is not made within 10 business days after delivery of a xxxx therefor. Once all revenue and expense amounts have been finally and completely ascertained, the Operating Partnership shall prepare a final proration statement which shall be prorated between Buyer and Seller as their respective periods of ownership bears subject to the primary term Contributor’s reasonable approval. Upon the Contributor’s acceptance and approval of any final proration statement submitted by the new Lease subjectOperating Partnership, in all eventssuch statement shall be conclusively deemed to be accurate and final. To the extent any reconciliation is required, the Operating Partnership shall be permitted to offset any amounts by adjusting the Series T Limited Units transferred to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Contributor.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
Prorations. 6.7.1. Real property taxes, The following adjustments to the Purchase Price shall be made at the Closing by proration of the amounts as specified below as of 11:59 p.m. of the date preceeding the closing:
(a) Ad valorem real estate and personal property taxestaxes applicable to the Properties for 1996, assessmentssuch apportionment to be made on the basis of the previous year's taxes unless the bill therefor is availxxxx. Once the taxes for 1996 are established, rentsupon written demand by either party, the parties shall promptly recompute such proration in accordance with the current tax figures, and CAM expenses any excess payment or credit received by a party shall promptly be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved reimbursed by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior it to the Close of Escrow and which are collected by other party. Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue contest the 1996 taxes and Seller shall provide Buyer with any Tenant information in Seller's possession to assist such contest. The provisions for delinquent rent, but readjustment of taxes are intended to and shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or survive the Closing of this transaction.
(b) have Water and sewer rentals, charges for the right to seek eviction 10/29/96 6 supply of the Tenant by unlawful detainer or electricity, gas, trash collection and other means. Tax utility and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrowservice charges.
(c) Charges and receipts under service, the recipient shall promptly deliver a copy of such tax xxxx to the other partymaintenance, and not later than ten (10) days other like contracts affecting the Subject Property. The amount of charges paid by Seller prior to the delinquency date shown on such tax xxxx Buyer Closing and Seller attributable to a period after the Closing shall deliver be credited to Seller. The amount of receipts received prior to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations Closing and attributable to a period after the Closing shall be based on a 360-day yearcredited to Buyer.
6.7.2. (d) All leasing commissions owing and tenant improvements other proratable items with respect to the Real Property entered into prior to execution of the Agreement Subject Property, including, but not limited to, commissions rents. Security deposits shall be transferred as an escrow item which shall not adjust the Purchase Price. Rents and reimbursements for lease renewals and expansion optionsperiods prior to Closing which have not been collected as of Closing, shall be paid applied first to post-Closing date delinquencies, and then to pre-Closing date delinquencies.
(e) All items to be adjusted for which figures are not available at the Closing, including real estate taxes for the year 1996, will be adjusted, and payment therefor will be made by Seller to Buyer or by Buyer to Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed as appropriate, as soon as figures are available after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subjectClosing and, in all eventsthe case of revenues, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3if any, when they are collected.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, (a) The following adjustments to the Purchase Price paid hereunder shall be made between Seller and CAM expenses Purchaser and shall be prorated through Escrow between Buyer (as applicable) on a per diem basis up to and Seller the day immediately before the Closing Date:
(i) Accrued general real estate taxes for the Property (the “Taxes”) for the year of Closing shall be prorated as of Close the Closing Date on the basis of Escrowthe actual taxes for the year, if known, or if unknown, on the basis of the most recent ascertainable taxes, but in either case based on the maximum allowable discount for early payment. All security deposits To the extent such Taxes are due and payable after Closing, Purchaser shall pay all such taxes when they become due and payable and, promptly thereafter, the parties shall re-prorate taxes with, if any amount is due, an appropriate payment from one party to the other on the basis of the amount of taxes then due and payable. Prior to or at Closing, Seller shall pay or have paid all Tax bills which are due and payable prior to or on the Closing Date and shall furnish evidence of such payment to Purchaser. Special assessments which are confirmed or become a lien prior to Closing and pending assessments for work substantially completed as of Closing shall be paid over credited to BuyerPurchaser at Closing. Rents Purchaser shall receive no credit for other pending special assessments.
(ii) Jupiter Park of Commerce Association annual assessments and CAM expenses dues for the year of Closing (the “Association Dues”);
(iii) Charges under Contacts to the extent assigned to, and assumed by Purchaser at Closing (the “Contract Fees”); and
(iv) South Florida Water Management District General Water Use Permit No. 50-25845-W fee and Palm Beach County Wellfield Operating Permit WP-91-054 annual fee (collectively, the “Permit Fees”).
(v) The value of any fuel stored on the Premises, if any, at the price then charged by Seller’s supplier, including any taxes.
(vi) water charges and sewer rents, if any, on the basis of the lien period for which assessed, except that if there is a water meter on the Premises, apportionment at the Closing shall be approved by Buyer prior based on the last available reading, subject to Close of Escrow. Any delinquent rents attributable to periods prior adjustment after the Closing when the next reading is available.
(b) Immediately after Closing, Seller shall make available at its offices, all records, contracts, receipts for deposits, unpaid bills, and other papers or documents which pertain to the Close of Escrow Property together with all keys and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer andother items, if collected by Sellerany, remitted to Buyer used in the operation of the Property. Except as otherwise expressly set forth in this Agreement, Seller makes no representations regarding the existence or adequacy of such documents or items for such purposeuse in management or operation of the Property. The foregoing shall not include the separate books, records, correspondence, and other documentation of Seller located at its offices. After the Closing, Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have inspect the right to seek eviction books and records of the Tenant by unlawful detainer or other meansProperty for any purpose reasonably related to Seller's prior ownership of the Property. Tax and assessment For purposes of all prorations provided for herein, Seller shall be based on responsible for all days up to and including the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days day immediately prior to the delinquency date shown on such tax xxxx Buyer Closing Date, and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations Purchaser shall be based on a 360-day yearresponsible for all days thereafter.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the (c) Except as otherwise expressly provided in this Agreement including(including Section 25 hereof), but not limited to, commissions all pro-rations provided for lease renewals and expansion options, herein shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3final.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.15.2.1 Rentals from Leases (including fixed monthly rentals and other periodic rentals, additional rentals, percentage rentals, operating cost pass-throughs and other sums and charges payable by the tenants), prepaid rentals and prepaid payments (collectively, “Rent”) shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all security deposits actually held by Seller and for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing. Seller shall not receive a credit for any Rent Seller has not received as of the Closing that is allocable to the period prior to the Closing. If Buyer shall collect any such Rent (including without limitation percentage rent) after the Closing, Buyer shall promptly pay the same to Seller, after application of the same to any rent due from the applicable Tenant after the Closing.
5.2.2 Real estate taxes shall be prorated as of the Closing on the basis of the most recent assessed valuation of and rates and multiplier applicable to the Property. If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall make any necessary adjustment after Closing by cash payment upon demand to the party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which arc allocable to the period after the Closing).
5.2.3 Seller shall endeavor to have all of its utility accounts with respect to the Property closed out effective as of the Closing Date; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs).
5.2.4 Common area and maintenance charges, property taxes, personal property taxesinsurance and other operating cost pass-throughs payable by Tenants which accrue as of the Closing Date, assessmentsbut which are not then due and payable (collectively, rentsthe “Operating Expenses”), shall not be prorated, except as herein provided. Buyer shall receive and CAM expenses shall be prorated through Escrow between Buyer retain any Operating Expenses paid by Tenants on or after the Closing Date and Seller as of Close of Escrow. All security deposits shall be receive and retain any Operating Expenses paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods Tenants prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to SellerClosing Date; provided, however, that any amounts collected by Buyer monthly or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent periodic deposits or become financially unstable or (b) have the right to seek eviction payments of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx estimated Operating Expenses with respect to the other party, and not later than ten (10) days month in which the Closing occurs received by Seller prior to the delinquency date shown Closing Date or by Buyer on such tax xxxx or after the Closing Date shall be prorated as of the Closing Date. Buyer and Seller shall deliver prorate at Closing, actual Operating Expenses collected by Seller from Tenants prior to Closing with actual Operating Expenses paid by Seller with respect to such period, so that if there are any rebates owing to Tenants for the taxing authority their respective shares period of Seller’s ownership, Seller shall pay Buyer the amount of such tax xxxxrebates at Closing, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to the Real Property entered into prior period of Seller’s ownership, Buyer shall promptly pay Seller the amount so owed to execution the landlord upon Buyer’s receipt of the same (and Buyer shall exert diligent good faith efforts to collect the same). Any prorations under this Agreement including, but not limited to, commissions for lease renewals and expansion options, based upon monthly amounts shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of based upon a thirty (30) day month; any prorations under this Agreement based upon annual amounts shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3based upon a 366 day year.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Prorations. 6.7.1. Real property taxesSeller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and CAM expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. All security deposits The preliminary proration shall be paid over at Closing by Purchaser to BuyerSeller (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. Rents If the actual amounts of the Proration Items are not known as of the Closing Time, the prorations will be made -37- 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 CAM expenses a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be approved made by Buyer prior Purchaser and Seller on or before November 30, 2016 (herein, the “Final Proration Date”). The provisions of this Section 10.4 will survive the Closing until the Final Proration Date has occurred, and in the event any items subject to Close of Escrow. Any delinquent rents attributable to periods proration hereunder are discovered prior to the Close of Escrow and which are collected by Buyer or Seller Final Proration Date, the same shall be retained promptly prorated by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purposethe parties in accordance with the terms of this Section 10.4. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx Notwithstanding anything to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the contrary provided in this Agreement including, but not limited to, commissions this Section 10.4(a), Seller and Purchaser hereby agree to use the following, estimated 2016 real estate taxes and assessments for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term purposes of the new Lease subject, in all events, to the prior approval proration of said Leases as herein provided by Buyer pursuant to Paragraph 7.3same at Closing: $110,000.00.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 6.7.1(a) Rents and any additional charges and expenses payable by Tenants under Leases; real property taxes and assessments; water, sewer and utility charges; amounts payable under any Service Contracts (other than Terminated Contracts); annual permits and/or inspection fees (calculated on the basis of the period covered); and any other income or expenses of the operation and maintenance of the Property shall all be prorated as of 11:59 p.m. on the date immediately preceding the Closing Date (i.e., Purchaser is entitled to the income and responsible for the expenses of the day of Closing), on the basis of a 365-day year and otherwise in accordance with this Section 10.5. Real property Seller shall deliver draft prorations to Purchaser at least five (5) Business Days before Closing Date.
(b) Purchaser shall receive a credit at Closing for all rents, including estimated payments for operating expenses and real estate taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and collected by Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow Closing and which are collected by Buyer or Seller allocable to the period after Closing. No credit shall be retained given the Seller for accrued and unpaid rent or any other non-current sums due from tenants except as provided in this Section 10.5(b). All rent or other sums collected or received by or paid Seller after Closing shall be promptly remitted to Seller; Purchaser to be applied and distributed in accordance with this Section 10.5(b). All rent received by Purchaser after Closing shall be applied first to current rentals and then to delinquent rentals in the inverse order of maturity. Purchaser shall use reasonable efforts to collect rents and other sums owing to Seller in the usual course of Purchaser’s operation of the Property, provided, however, that Purchaser shall not be required to pursue or institute any amounts collected by Buyer action to evict any tenant or Seller shall be first applied any other collection proceedings to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purposecollect delinquent rentals. Seller shall have the no right to pursue contact Tenants or collect any Tenant for delinquent rent, but such rents and other sums from Tenants after Closing and Seller shall not (a) have no right to cause any such Tenant to be delinquent for their current rent evicted or become financially unstable or (b) have to exercise any other landlord remedy against such Tenant after Closing. In the right event Seller receives rents from Tenants applicable to seek eviction of periods after the Tenant by unlawful detainer or other means. Tax and assessment prorations Closing Date, Seller shall be based on immediately forward the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy full amount of such tax xxxx rents to Purchaser to be applied by Purchaser in accordance with this Section 10.5(b).
(c) At Closing, (i) Seller shall credit Purchaser with the amount of any cash security deposits actually held by Seller pursuant to the other party, and not later than ten Leases (10) days prior to the delinquency date shown on extent such tax xxxx Buyer and Seller shall deliver to security deposits are not applied against delinquent rents in accordance with the taxing authority their respective shares of such tax xxxx, prorated as of Close of EscrowLeases). All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Any taxes that are payable in the Real Property entered into prior to execution of year in which the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement Closing occurs (“Current Tax Year”) shall be prorated between Buyer Purchaser and Seller as their respective periods based upon the number of ownership bears days in the Current Tax Year prior to the primary term 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 Purchaser). Fees and charges under the Service Contracts (other than the Terminated Contracts) in respect of the new Lease subject, most recent billing period which includes the Closing Date (“Current Billing Period”) shall be prorated on a per diem basis based upon the number of days in all events, the Current Billing Period prior to the prior approval Closing Date (which shall be allocated to Seller) and the number of said Leases days in the Current Billing Period on and after the Closing Date (which shall be allocated to Purchaser) and assuming that all fees and charges are incurred uniformly during the Current Billing Period. Calculations hereunder shall be based upon the most recent statement rendered to Seller by the applicable service provider and, after an actual statement covering the Current Billing Period is received, a copy shall be delivered to Purchaser or Seller, as herein provided by Buyer pursuant to Paragraph 7.3applicable, and the apportionment of such charges hereunder shall be recomputed if necessary.
6.7.3(d) Seller and Purchaser hereby agree that if any of the aforesaid prorations and credits cannot reasonably be calculated accurately on the Closing Date or in the case of rents or other charges received from Tenants, such amount have not been collected, then the same shall be calculated as soon as reasonably practicable after the Closing Date or the date such amounts have been collected, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the other party within sixty (60) days thereafter. Upon request of either party, the parties shall provide a detailed and accurate written statement signed by such party certifying as to the payments received or expenses incurred by such party from Tenants from and after Closing and to the manner in which such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice.
(e) Not more than sixty (60) days after the Closing, Seller agrees to indemnify and hold Buyer harmless from any Purchaser shall make a final calculation of the real estate taxes, operating expenses and all liabilitiesother prorations or adjustments for the Property, claimsincluding any adjustments for rent or escalation payments payable under the Leases in connection therewith. If such calculation discloses that Seller has collected more in estimated payments from Tenants for rents, demandsoperating expenses and taxes than it is entitled to retain after the final reconciliations are completed, suitsSeller shall pay such excess to Purchaser for refund to the tenants, and judgmentsif Seller has collected less in estimated payments than it is entitled to receive after the final reconciliations are completed, Purchaser shall pay such amounts to Seller when and as collected from the tenants. No insurance policies of any kind the Seller are to be assigned or natureotherwise transferred to the Purchaser, including court costs and reasonable attorney fees (except those items which under no apportionment of the terms premiums therefor shall be made. The provisions of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertySection 10.5 shall survive Closing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (RREEF Property Trust, Inc.)
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed) and amounts payable under Service Contracts assumed by Purchaser on an accrual basis. Seller shall pay all amounts due thereunder which accrue prior to the Closing and Purchaser shall pay all mounts accruing on the Closing Date and thereafter. All capital and other improvements (including labor and materials) which are performed or contracted for or by Seller at or prior to the Closing will be paid by the Seller at or prior to Closing, without contribution or proration from Purchaser. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and CAM expenses Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld, delayed or conditioned) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller and delivered to the Title Company for purposes of making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Time, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be assigned to Purchaser except as otherwise provided in Section 9 above. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller within sixty (60) days after Closing, provided that such reconciliation, as it relates to real estate taxes shall be made within thirty (30) days following the issuance of the tax bills for the Real Property for the year in which Closing occurs. The provisions of this Section 10.4 will survive the Closing until the date which is six (6) months following the Closing Date (the “Reconciliation Period”), and in the event any items subject to proration hereunder are discovered within such period, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4. Seller and Purchaser, pursuant to RCW 60.80.020(1), hereby waive the services of Title Company in administering the disbursement of closing funds necessary to satisfy any unpaid utility charges. Purchaser shall transfer all utilities at the Property to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Seller shall use commercially reasonable efforts to cause all utility meters to be read as of the Closing Date. Seller shall be entitled to recover any and all deposits held by any utility company as of the Closing Date. All charges for utilities shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction outside of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten escrow contemplated herein within sixty (1060) days prior to after the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of EscrowClosing Date. All prorations shall be based on a 360-day yearmade in accordance with customary practice in the jurisdiction in which the Real Property is located, except as expressly provided herein. Following the Closing, Seller and Purchaser shall reasonably cooperate with each other in order to calculate and determine the correct amount of all prorations required to be made pursuant to this Section 10.
6.7.2(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. All leasing commissions owing After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, all administrative charges, utility charges, tenant improvements or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to Seller or its successor by Tenants under the Tenant Leases or from other occupants or users of the Property, excluding specific tenant xxxxxxxx which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the Real Property entered into collection of any Delinquent Rentals, but Purchaser will have no liability for the failure to collect any Delinquent Rentals payable to Seller and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. All sums collected by Purchaser within one (1) year after Closing from each Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to execution of the Agreement includingClosing Time governed by Section 10.4(c) below and tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, but not limited to, commissions for lease renewals and expansion options, which shall be paid payable to and belong to Seller in all events) will be applied first to amounts currently owed by such Tenant to Purchaser (including Delinquent Rentals attributable to the period after the Closing Time), then any collection costs of Purchaser related to such Tenant, and then to prior delinquencies owed by such Tenant to Seller. In no event shall Seller initiate litigation or other legal action after the Closing Date to pursue collection of Delinquent Rentals. Any sums collected by Purchaser and due Seller will be promptly remitted to Seller, and any sums collected by Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall due Purchaser will be prorated between Buyer and Seller as their respective periods of ownership bears promptly remitted to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Purchaser.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Prorations. 6.7.1. Real property taxesSubject to the terms of this Section 9.1, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods at or prior to the Close Closing, the parties shall prorate, as of Escrow 11:59 p.m. on the date immediately preceding the Closing Date (the “Prorations Time”), all income and which are collected expenses with respect to the Property and payable to or by Buyer or Seller shall be retained by or paid to Seller; providedthe LLC, howeverincluding, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have without limitation: (i) all real property taxes on the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant by unlawful detainer or other means. Tax and assessment prorations fiscal period for which assessed (if the Closing shall occur before the tax rate is fixed, the apportionment of taxes shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any rate for the preceding period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx applied to the latest assessed valuation); (ii) rents and other partytenant payments and tenant reimbursement, if any, received under the Leases; (iii) charges for water, sewer, electricity, gas, fuel, steam, vault taxes and not later other utility charges (other than ten (10) days prior those charges required to be paid directly to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares utility company by Tenant) all of such tax xxxx, prorated as of Close of Escrow. All prorations which shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements read promptly before the Closing; (iv) periodic fees for licenses, permits or other authorizations with respect to the Real Property entered into prior to execution Property; and (v) all other items customarily prorated in connection with transactions of the Agreement including, but not limited to, commissions for lease renewals and expansion options, type contemplated by this Agreement. A further proration shall be paid by Sellermade between the parties when the tax bxxx for the tax year in which the Closing occurs becomes available. In conjunction with such prorations, Seller will assign to Purchaser its share of all utility deposits which are assignable (and Seller shall indemnify and hold Buyer harmless for lease commission claims brought be credited with such amounts). In connection with the calculation of the Purchase Price under Section 2.1 hereof, it is anticipated that the items prorated hereunder will be adjusted on an aggregate basis against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term net proceeds of the new Lease subjecthypothetical sale of the Property for $362,000,000. Accordingly, for purposes of adjusting the Purchase Price between Purchaser, in all events, to the prior approval its capacity as purchaser of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suitsSeller’s LLC Interest, and judgmentsSeller, in its capacity as seller of any kind Seller’s LLC Interest, the Seller shall bear 66 2/3% of the amounts debited hereunder, and shall receive 66 2/3% of the amounts credited hereunder, for the items of income and expenses prorated or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring adjusted hereunder for periods on or before the Close Proration Time, and Purchaser shall bear 66 2/3% of Escrow the amount debited hereunder, and which are in any way related to shall receive 66 2/3% of the Propertyamounts credited hereunder for the items of income and expense prorated or adjusted hereunder for periods after the Prorations Time.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement (Overseas Partners LTD)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); interest on and any fees including, without limitation, credit enhancement, issuer or trustee fees respecting the Bonds; water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses; real and personal property taxes, assessments, rents; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day prior to the Closing Date, and CAM expenses credited against the balance of the cash due at Closing. To the extent any escrows or bond repayment deposits for taxes and insurance established in connection with the Bonds or Existing Bond and Mortgage Documents are not refunded to Seller at Closing, the proceeds in said escrows shall be prorated through Escrow between Buyer assigned to Purchaser and the amounts thereof shall be a credit to Seller as of Close of Escrowat the Closing. All security deposits Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved on the basis of the most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below and except for real estate taxes which will be reprorated upon receipt of actual bills. If any unit has remained vacant for more than 9 days without being made "rent ready", Seller will give Purchaser a credit of $250 for such unit for cleaning, painting touch-up, carpet shampoo and minor appliance repair. If such a unit requires carpet replacement or other renovation not covered by Buyer prior the preceding sentence, Purchaser and Seller will agree on the amount of the credit to Close of EscrowPurchaser. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or If Seller receives a credit for a utility deposit, Seller shall be retained execute an assignment thereof substantially in the form attached as Exhibit N.
12.2. All monies received after Closing by or paid to Seller; provided, however, that Purchaser from any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction tenant of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for rent for any period prior to Close of Escrow, the recipient shall promptly deliver a copy Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of such tax xxxx monies to current rent shall be deemed a "Post-Closing Receipt", but only to the other party, and extent such pre-closing indebtedness has not later than been paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use good faith efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and previously delivered to Seller shall indemnify and hold Buyer harmless for lease commission claims brought against in accordance with the Real Property arising therefromterms hereof. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes(a) Rents, personal property taxesincluding, assessmentswithout limitation, percentage rents, if any, and CAM any additional charges and expenses payable under tenant leases, all as and when actually collected (whether such collection occurs prior to, on or after the Closing Date); real property taxes and assessments; water, sewer and utility charges; amounts payable under any service contracts; annual permits and/or inspection fees (calculated on the basis of the period covered); and any other expenses of the operation and maintenance of the Property (including, without limitation, those expenses listed on SCHEDULE 5 attached hereto already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the unamortized portion thereof), together with tenant improvement costs, leasing commissions, as provided in Section 7.2 above, shall all be prorated as of 12:01 a.m. on the date the Deed is recorded, on the basis of a 365-day year. Any sums collected by Buyer from tenants after the Closing shall be prorated through Escrow between promptly paid to Seller to the extent of any rents and other sums which were delinquent at Closing, after first applying all such amounts collected to current obligations. Buyer shall use reasonable efforts to collect such delinquent rents but shall not be obligated to expend any sums, commence any litigation, terminate any lease or threaten to terminate any lease to do so. Seller retains the rights to collect any such delinquent rents from tenants after Closing provided that Seller shall not commence any legal or equitable proceedings in the nature of an unlawful detainer, eviction or other proceeding which would have the effect of interfering with any tenant's quiet enjoyment of its leased premises or result in a lien or encumbrance on such leased premises. The amount of any security deposits under tenant leases shall be credited against the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property, in which case all such deposits for which Seller receives credit shall remain in place for the benefit of Buyer and Seller shall execute and deliver such documents as of Close of Escrow. All security deposits shall be paid over necessary to assign such deposits to Buyer. Rents Buyer shall cause all utilities to be transferred into Buyer's name and CAM expenses account at the time of Closing. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, then the same shall be approved by Buyer prior to Close calculated as soon as reasonably practicable after the Closing Date and either party owing the other party a sum of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be money based on the latest available tax xxxx. If after Close of Escrow either party receives any further such subsequent proration(s) or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient credits shall promptly deliver a copy of such tax xxxx pay said sum to the other party. Seller and Buyer shall jointly prepare and approve a preliminary Closing Statement on the basis of the leases and other sources of income and expenses, and not later than ten (10) days shall deliver such computation to the Title Company prior to the delinquency date shown on such tax xxxx Buyer and Closing.
(b) Seller shall deliver pay one-half (1/2) of the escrow fee, any county transfer taxes applicable to the taxing authority their respective shares sale, and the costs of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to obtaining the Real Property entered into prior to execution CLTA portion of the Agreement includingtitle insurance policy. Buyer shall pay the costs of obtaining the ALTA portion of the title insurance policy, but not limited tothe cost of any endorsements, commissions and one-half (1/2) of the escrow fee. Recording charges and any other expenses of the escrow for lease renewals and expansion options, the sale shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller in accordance with customary practice as their respective periods determined by the Title Company. In addition, Seller shall be liable for any prepayment fee or other charge payable in connection with any payoff of ownership bears to the primary term deeds of the new Lease subject, in all events, to the prior approval of said Leases as herein provided trusts or mortgages entered into by Buyer pursuant to Paragraph 7.3Seller.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms c) The provisions of this Agreement specifically become Section 8.5 shall survive the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertyClosing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Pacific Gulf Properties Inc)
Prorations. 6.7.113.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; prepaid operating expenses; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, assessmentsif any, rentsfor such items); ; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited against the balance of Close of Escrowthe cash due at Closing. All security deposits Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 13.2 below.
13.2. All basic rent paid following the Closing Date by unlawful detainer or other means. Tax and assessment prorations shall be based on any tenant of the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, the recipient all current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts (excluding litigation) to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at reasonable times and expansion optionsupon reasonable notice, shall be paid by of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, and Purchaser shall pay to Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromsaid additional Post-Closing Receipts. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 13.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.112.1. Real Rents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees if and to the extent payable to the existing property taxes, manager for rent received and prorated for the month of Closing; real and personal property taxes, assessments, rents; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited to the balance of Close of Escrowthe cash due at Closing. All security deposits Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. For a period of 120 days following the Closing, all basic rent paid following the Closing Date by unlawful detainer or other means. Tax and assessment prorations shall be based on any tenant of the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, the recipient all current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder, but in no event shall Purchaser be required to initiate legal proceedings to collect such amounts. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at reasonable times and expansion optionsupon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller in an amount greater than $5,000.00, Purchaser shall be paid by pay to Seller said additional Post-Closing Receipts and the cost of performing Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom's audit. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale (Balcor Equity Pension Investors Iii)
Prorations. 6.7.1. Real property taxes, 15.1 Water and other utility charges; fuels; prepaid operating expenses; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilities, assessmentsif any, rents, and CAM for such items); tenant reimbursement obligations for operating expenses shall be prorated through Escrow between Buyer and paid by Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods for the period prior to the Close Closing Date, less any amount previously paid by the tenants; unpaid operating expenses for the period prior to the Closing Date prorated on a "net" basis, as set forth above; and all other items of Escrow expense and which are collected by Buyer or income shall be adjusted ratably as of 12:01 a.m. on the Closing Date ("Proration Date"). Seller shall be retained by or paid entitled to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied a credit for all transferable utility deposits to any rents then due to Buyer andthe extent actually transferred hereunder, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other partyany, and not later than ten (10) days all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, Closing Date shall be paid by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. If any ongoing real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the contexx, shall indemnify be the most recent data for the tax year being contested and hold Buyer harmless for lease commission claims brought against (i) Purchaser agrees to re-prorate such amount as it related to the Real Property arising therefromreal estate tax proration to the extent such tax contest is successful. All leasing commissions other prorations will be final except as to delinquent rent referred to in Paragraph 15.2 below and tenant improvement costs as provided in Paragraph 15.3. Purchaser shall be credited and Seller will be charged with an amount equal to all Tenant security deposits and interest thereon being held by Seller or Seller's managing agent. Seller shall be entitled to retain all Tenant security deposits, interest thereon, or other such credit due Tenants for new Leases executed after which Purchaser receives credit and Seller is charged pursuant to this Paragraph. Seller and Purchaser agree to cooperate in the date calculation and reporting of this Agreement all closing prorations at least two (2) business days prior to the Closing Date.
15.2 All basic rent collected by Seller shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.12.01 a.m.
Appears in 1 contract
Samples: Sale Agreement (Balcor Equity Pension Investors Ii)
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, personal property taxesas of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), assessmentsthe following (collectively, the “Proration Items”):
(i) Rents, in accordance with Section 10.4(b) below.
(ii) Seller shall credit Purchaser at Closing with all cash Security Deposits and any prepaid rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall together with any interest to be paid over to Buyerthe Tenant thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. Rents and CAM expenses shall If there are meters on the Real Property, Seller will cause readings of all said meters to be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods performed not more than five (5) days prior to the Close of Escrow Closing Date, and which are collected by Buyer or Seller a per diem estimated adjustment shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer made for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have days between the right to seek eviction of meter reading date and the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be Closing Date based on the latest available tax xxxxmost recent meter reading.
(iv) Amounts payable under the Apex Agreements and Service Contracts.
(v) Real estate taxes due and payable for the calendar year. If after Close of Escrow either party receives any further or supplemental the Closing Date shall occur before the tax xxxx relating to any period prior to Close of Escrowrate is fixed, the recipient apportionment of real estate taxes shall promptly deliver a copy be upon the basis of such the tax xxxx rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other partyreason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and not later than Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing.
(vi) The value of fuel stored at the Real Property, at Seller’s most recent cost, including taxes, on the basis of a reading made within ten (10) days prior to the delinquency date shown Closing by Seller’s supplier.
(vii) To the extent that any of Westcore Management’s employee benefits impose a waiting period on new employees before such benefit will be available, and Seller or MCRC has the ability to continue comparable benefits post-Closing in favor of the Company Employees, during all or a portion of such waiting period, payment to Seller or MCRC of the costs of continuing such benefits for such period.
(viii) Any unpaid costs necessary to complete the Mt. Pyramid Project will be credited to Purchaser. If the parties cannot reasonably agree on such tax xxxx Buyer and Seller shall deliver costs, the amount in dispute will be held in escrow by the Escrow Agent until completion of the project, at which time, any unpaid costs not occasioned by (A) change orders agreed to by Purchaser post-Closing or (B) increases to the taxing authority their respective shares cost of such tax xxxxconstruction resulting from the actions of Purchaser, prorated as will be paid from the escrow, and any excess monies will be paid to Seller. Seller will be charged and credited for the amounts of Close all of Escrowthe Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. All The estimated Closing prorations shall be based set forth on a 360preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-day yearprorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
6.7.2(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. All leasing commissions owing After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant improvements or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. For purposes of this Agreement, rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the Real Property entered into collection of any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to (i) pursue legal action to enforce collection of any such amounts owed to Seller by any Tenant, (ii) terminate the Lease with respect to any such Tenant, or (iii) terminate any Tenant’s right to possession under such Lease. After the Closing, if Purchaser declines to pursue a collection action against a Tenant for Delinquent Rental, then Seller shall have the right to do so; provided, however, that Seller shall not (A) terminate any Lease or terminate or disturb Tenant’s right to possession thereunder, or (B) commence any lawsuit until the earlier of one year after the Closing Date or one month prior to execution the expiration of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromstatute of limitations with respect to such claim. All leasing commissions sums collected by Purchaser from and after Closing from each Tenant (excluding tenant improvement costs specific xxxxxxxx for new Leases executed after the date of this Agreement shall tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be prorated between Buyer and Seller as their respective periods of ownership bears applied first to the primary term of month in which the new Lease subjectClosing occurs, in all events, then to the prior approval of said Leases as herein provided current amounts owned by Buyer pursuant such Tenant to Paragraph 7.3Purchaser and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 6.7.1. Real property taxesAt least two (2) business days prior to, personal property taxesbut calculated as of the Closing Date, assessments, rents, all obligations and CAM expenses shall liabilities listed below relating to the Business and/or Assets will be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over the Closing Date, with Sellers liable to Buyer. Rents Purchaser therefor to the extent such items relate to any time period up to and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods including the day prior to the Close of Escrow Closing Date, and which are collected by Buyer or Seller shall be retained by or paid Purchaser liable to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied Sellers therefor to the extent such items relate to any rents then due to Buyer andtime period commencing on or after the Closing Date: personal property, real estate, occupancy and water taxes, if collected by Sellerany, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent on or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior Business and/or Assets; rents, taxes and similar items payable by Sellers under any Assigned Contract; the amount of any license or registration fees with respect to execution any Permits which are being assigned or transferred hereunder; the amount of the Agreement includingsewer rents and charges for water, but not limited totelephone, commissions electricity and other utilities and fuel; and any other items which are normally prorated in connection with similar transactions. Sellers agree to furnish Purchaser with such documents and other records as Purchaser reasonably requests in order for lease renewals Purchaser to calculate all adjustments and expansion options, prorations pursuant to this Section 1.5. The amount of such prorations owed by Purchaser or Sellers pursuant to this Section 1.5 shall be paid to Purchaser by SellerSellers or to Sellers by Purchaser, as the case may be, on the Closing Date and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against be treated as an adjustment to the Real Property arising therefromPurchase Price paid by Purchaser to Sellers on the Closing Date. All leasing commissions and tenant improvement costs for new Leases executed after If current payments with respect to items to be prorated pursuant to this Section 1.5 are not ascertainable on the date of this Agreement Closing Date, such payments shall be prorated between Buyer and Seller as their respective periods of ownership bears to on the primary term basis of the new Lease subject, in all events, to most recently ascertainable xxxx therefor and shall be reprorated between Sellers and Purchaser within 30 days after the prior approval of said Leases as herein provided Closing Date and a cash settlement shall be made promptly thereafter on an item by Buyer pursuant to Paragraph 7.3item basis.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses 5.4.1 The following shall be prorated through Escrow between Buyer Seller and Seller Purchaser as of Close 12:01 a.m. on the Closing Date (on the basis of Escrowthe actual number of days elapsed over the applicable period regardless when payable):
(a) All real estate taxes, water charges, sewer rents, vault charges and assessments on the Property on the basis of the fiscal year for which assessed. All In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or leases entered into on or after the Closing Date. If any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent and regularly scheduled items of additional rent under the Leases, and other tenant charges if, as and when received. Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Closing Date and all refundable cash security deposits shall be paid over (to Buyer. Rents the extent the foregoing were made by tenants under the Leases and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods are not applied or forfeited prior to the Close Closing Date) to Purchaser on the Closing Date. As to any tenant security deposits held in the form of Escrow letters of credit or other financial instruments (the “Non-Cash Security Deposits”), Seller shall (i) deliver to Purchaser at Closing such original Non-Cash Security Deposits, and (ii) execute and deliver at Closing such other instruments as the issuer of such Non-Cash Security Deposits shall reasonably require in order to cause the named beneficiary under such Non-Cash Security Deposits to be changed to Purchaser; provided that such instruments do not impose any liability on Seller. Purchaser will not receive a credit against the Purchase Price for the Non-Cash Security Deposits. Rents which are collected by Buyer delinquent as of the Closing Date shall not be prorated on the Closing Date. Purchaser shall include such delinquencies in its normal billing and shall diligently pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or Seller declare a default in any Lease). To the extent Purchaser receives rents on or after the Closing Date, such payments shall be retained by or paid applied first toward the rents for the month in which the Closing occurs, second to the rents that shall then be due and payable to Purchaser, and third to any delinquent rents owed to Seller, with Seller’s share thereof being held by Purchaser in trust for Seller and promptly delivered to Seller by Purchaser. Purchaser may not waive any delinquent rents nor modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent, which consent may be given or withheld in Seller’s sole and absolute discretion. Seller hereby reserves the right to pursue any remedy against any tenant owing delinquent rents and any other amounts to Seller (but shall not be entitled to terminate any lease or any tenant’s right to possession), which right shall include the right to continue or commence legal actions or proceedings against any tenant; provided, however, that any amounts collected by Buyer or Seller shall not be first applied entitled to exercise such right until the expiration of the six (6) month period following the Closing. Delivery of the Assignment and Assumption of Leases shall not constitute a waiver by Seller of such right, and such right shall survive the Closing. Purchaser shall xxxx and attempt to collect such delinquent rent in the ordinary course of business, but shall not be obligated to engage a collection agency or take legal action to collect any delinquencies. With respect to delinquent rents then and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Closing Date, Seller shall retain all rights relating thereto. Any rents received by Seller applicable to the period after the Closing shall be promptly remitted to Purchaser.
(c) If any tenant of the Property is obligated to pay percentage rent based upon the calendar year or lease year in which the Closing Date occurs (the “Percentage Rent Year”), Purchaser shall, within thirty (30) days after receipt of such payment with respect to the Percentage Rent Year, remit to Seller that portion which is equal to the number of days which elapsed between the commencement date of the Percentage Rent Year for each such tenant and the Closing Date, divided by the total number of days in such Percentage Rent Year. If Seller has received payments of percentage rent based on any Percentage Rent Year in which the date of Closing occurs, in excess of Seller’s share as calculated as set forth above in this Section 5.4.1(c), it shall promptly pay such excess to Purchaser. In the event that the Leases require the reconciliation of additional rent “pass-throughs” to the landlord for common area maintenance charges, real estate taxes or other operating expenses (collectively, the “Expenses”), Purchaser shall perform all of the obligations of the landlord under the Leases with respect to such reconciliations for the year of Closing as and when required by the terms of the Leases and provide Seller with the results of such reconciliations no later March 31st of the calendar year succeeding the Closing Date. If such results reflect the underpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall xxxx the appropriate amounts to such tenants in accordance with the terms of their leases and remit to Seller its prorata share of the amount collected from the tenants within thirty (30) days of Purchaser’s collection of the same. If such results reflect the overpayment of Expenses by tenants of the Property for the year of Closing, Purchaser shall deliver to Seller an invoice from Purchaser together with evidence reasonably satisfactory to Seller indicating that such sums are due to Buyer andsuch tenants. Seller shall pay Purchaser Seller’s prorata share of the amounts due to such tenants within thirty (30) days of Purchaser’s demand, provided that Seller shall have no obligation to reimburse Purchaser for any sums not invoiced on or before July 1st of the calendar year succeeding the Closing Date. Notwithstanding the foregoing, if, as of the Closing, Seller has received additional rent payments in excess of the amount that the tenants would be required to pay, based on the actual Expenses as of the Closing, Purchaser shall receive a credit in the amount of such excess. The provisions of this Section 5.4.2(c) shall survive the Closing.
(d) All operating expenses customarily apportioned between sellers and purchasers of real estate properties similar to the Property and located in the same geographic area as the Property.
(e) Charges and payments under Contracts or permitted renewals or replacements thereof assigned to Purchaser pursuant to the Assignment and Assumption of Contracts.
(f) Any prepaid items, including, without limitation, fees for licenses which are transferred to Purchaser at the Closing and annual permit and inspection fees.
(g) Utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available, or if current meter readings are available, on the basis of such readings.
(h) Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if the same are assignable and are assigned to Purchaser at the Closing, which shall be credited in their entirety to Seller.
(i) Personal property taxes, if collected any, on the basis of the fiscal year for which assessed.
(j) Permitted administrative charges, if any, on those tenants’ security deposits transferred by SellerSeller pursuant to the Assignment and Assumption of Leases.
(k) Taxes payable by Seller relating to operations of the Property, remitted including, without limitation, business and occupancy taxes and sales taxes, if any.
(l) Such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to Buyer the Property and located in the same geographic area as the Property subject to Section 7.2.3(a) hereof.
(m) Notwithstanding anything to the contrary contained herein, Seller shall remain responsible for refunding to the tenants of the Property (including any former tenants of the Property), such purposetenants’ prorata shares of the real estate tax refund received by Seller and arising out of the tax certiorari proceedings for calendar years 2003 through 2006. Seller This provision shall survive the Closing.
(a) Intentionally deleted.
(b) If any of the items described in Section 5.4.1 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, or are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date such error is discovered, as applicable; provided that (i) with the exception of any item required to be apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to pursue request apportionment or reapportionment of any Tenant for delinquent rent, but shall not such item at any time following the one hundred eightieth (a180th) cause Tenant day after the Closing Date and (ii) with respect to the items required to be delinquent for their current rent or become financially unstable or apportioned pursuant to Section 5.4.1(a), (b) or (g), neither party shall have the right to seek eviction request apportionment or reapportionment of any such item at any time following the one (1) year anniversary of the Tenant by unlawful detainer Closing Date. If the Closing shall occur before a real estate or other means. Tax and personal property tax rate or assessment prorations is fixed for the tax year in which the Closing occurs, the apportionment of taxes at the Closing shall be based on upon the basis of the tax rate or assessment for the preceding fiscal year applied to the latest available assessed valuation. Promptly after the new tax xxxx. If after Close rate or assessment is fixed, the apportionment of Escrow either taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party receives reimbursed, which obligations shall survive the Closing.
5.4.3 Items to be prorated at the Closing shall include a credit to Seller for costs and expenses incurred by Seller in connection with any further new Leases or supplemental tax xxxx relating modifications to any period prior to Close existing Leases entered into after the date hereof in accordance with the terms and conditions set forth in Section 7.2.3(a) of Escrowthis Agreement, the recipient shall promptly deliver a copy of such tax xxxx but only to the other party, extent such costs and not later than ten expenses are approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) or disclosed to Purchaser in writing or in the proposed lease at least three (103) days Business Days prior to the delinquency date shown on such tax xxxx Buyer and hereof. Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing responsible for all brokerage and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for the initial term of all Leases entered into prior to the date of this Agreement and for any extension, renewal or expansion of any such Lease exercised prior to the date of this Agreement, provided in all such instances, the term of such Lease, extension, renewal or expansion and the regularly scheduled payment of rent commences prior to the date of this Agreement (collectively, “Seller Leasing Costs”). Purchaser shall be responsible for and expressly assumes the obligation to pay all brokerage and leasing commissions, tenant improvement costs and other costs and expenses including attorney’s fees other than the Seller Leasing Costs for any new Leases executed leases entered into from and after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subjectany extension, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, renewal or expansion of any kind existing Lease exercised or nature, including court costs entered into from and reasonable attorney fees (except those items which under after the terms date of this Agreement specifically become including, without limitation amounts owed under the obligation Brokerage Agreements, provided in all such instances, the term of Buyersuch Lease, extension, or expansion or the regularly scheduled payment of rent commences from and after the date of this Agreement, provided such new leases or extensions or expansions are approved or deemed approved by Purchaser pursuant to Section 7.2.3(a) of this Agreement and provided such brokerage and leasing commissions, tenant improvement costs and other costs are disclosed to Purchaser in writing, in the applicable lease or other agreement delivered to Purchaser at the time Purchaser approves (or is deemed to have approved) such new leases, or any such Lease extensions, renewals or expansions (collectively, “Purchaser Leasing Costs”). If at the Closing Seller has paid any Purchaser Leasing Costs, brought by third parties the prorations at the Closing shall include an appropriate credit to Seller. If at the Closing there remain unpaid Seller Leasing Costs, Purchaser shall expressly assume the responsibility to pay such unpaid Seller Leasing Costs, and based on events occurring on the prorations at the Closing shall include an appropriate credit to Purchaser.
5.4.4 As provided in Section 11.1.2, Seller shall be responsible for paying all fees, costs or before the Close of Escrow and which are in any way related commissions owing to the PropertyBroker (as defined in Section 11.1.2) with regard to the transactions contemplated by this Agreement.
6.7.4. Buyer agrees to indemnify and hold Seller harmless 5.4.5 The provisions of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to this Section 5.4 shall survive the Close of Escrow and which are in any way related to the PropertyClosing.
Appears in 1 contract
Samples: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, if any; water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes, assessments, rentstaxes and installments of special assessments which are due in the year in which the Closing Date occurs; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited against the balance of Close of Escrowthe cash due at Closing. All security deposits Assessments payable in installments which are due in years subsequent to the year in which the Closing Date occurs shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below. Refundable security deposits will be assigned to and assumed by unlawful detainer or other meansPurchaser and credited to Purchaser at Closing.
12.2. Tax and assessment prorations shall be based on All rent paid following the latest available tax xxxx. If after Close Closing Date by any tenant of Escrow either party receives any further or supplemental tax xxxx relating to the Property who is indebted under a lease for basic rent for any period prior to Close and including the Closing Date, after the payment to Purchaser of Escrowall current basic rent, the recipient shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) business days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use commercially reasonable efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder (but in no event will be obligated to retain legal counsel or the delinquency date shown on services of an outside collection agency or to initiate legal proceedings in furtherance thereof) and may deduct from such tax xxxx Buyer and Seller Post-Closing Receipts so collected its reasonable out-of-pocket costs incurred in so collecting such Post-Closing Receipts. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at reasonable times and expansion optionsupon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller and the confirmation thereof by Purchaser, Purchaser shall be paid by Seller, and pay to Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromsaid additional Post-Closing Receipts. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale (Balcor Equity Pension Investors I)
Prorations. 6.7.1. Real property taxes, personal property Rexx xxxxxxxy taxes, assessments, rents, security deposits, and CAM cam expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All Rents, security deposits shall be paid over to Buyer. Rents and CAM cam expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause a Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other meansunstable. Tax and assessment prorations shall be based on the latest available tax xxxxbill. If If, after Close of Escrow either party Escrow, Buyer receives any further or supplemental tax xxxx bill relating to any period prior to Close of Escrow, xx Xeller receives any further or supplemental tax bill relating to any period after Close of Escrow, the recipient xxxipient shall promptly deliver a copy of such tax xxxx bill to the other party, and not later than ten (10) days dxxx prior to the delinquency date shown on such tax xxxx bill Buyer and Seller shall deliver to the taxing authority authxxxxy their respective shares of such tax xxxxbill, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All Xxl leasing commissions owing and tenant improvements with respect to the Real Property transactions entered into prior to execution of the this Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease Lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases and for Lease renewals and expansion options executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears bear to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close date of Escrow closing and which are in any way related to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys attorneys' fees, brought by third parties and based on events occurring subsequent to the Close date of Escrow closing and which are in any way related to the Property, and all expenses related thereto, including, but not limited to, court costs and attorneys' fees.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Prorations. 6.7.1. Real property taxesSellers and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and CAM expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Sellers will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Sellers and Seller as submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Sellers and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. All security deposits The preliminary proration shall be paid over at Closing by Purchaser to BuyerSellers (if the preliminary prorations result in a net credit to Sellers) or by Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. Rents If the actual amounts of the Proration Items are not known as of the Closing Time, 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 CAM expenses a final cash settlement will be made between Sellers and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Sellers’ insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which event no proration will be made -38- at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Sellers will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be approved made by Buyer prior Purchaser and Sellers on or before November 30, 2016 (herein, the “Final Proration Date”). The provisions of this Section 10.4 will survive the Closing until the Final Proration Date has occurred, and in the event any items subject to Close of Escrow. Any delinquent rents attributable to periods proration hereunder are discovered prior to the Close of Escrow and which are collected by Buyer or Seller Final Proration Date, the same shall be retained promptly prorated by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purposethe parties in accordance with the terms of this Section 10.4. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx Notwithstanding anything to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the contrary provided in this Agreement including, but not limited to, commissions this Section 10.4(a), Sellers and Purchaser hereby agree to use the following, estimated 2016 real estate taxes and assessments for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless purposes of the proration of same at Closing: (x) $470,000.00 for lease commission claims brought against the Shoppes at Parkland Real Property arising therefrom. All leasing commissions and tenant improvement costs the Shoppes at Parkland Improvements and (y) $180,000.00 for new Leases executed after the date of this Agreement shall be prorated between Buyer University Palms Real Property and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3University Palms Improvements.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to 11:59 p.m. on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; providedday preceding the Closing Date (the “Proration Time”), howeverthe following (collectively, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected the “Proration Items”):
(i) Utility charges payable by Seller, remitted to Buyer for such purposeif any, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) will cause Tenant readings of all said meters to be delinquent for their current rent or become financially unstable or performed not more than five (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (105) days prior to the delinquency Closing Date, and a per diem adjustment shall be made for the days between the meter reading date shown and the Closing Date based on such the most recent meter reading.
(ii) License fees and any other amounts payable under the AT&T Wireless License, if any.
(iii) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax xxxx Buyer and Seller rate is fixed, the apportionment of real estate taxes shall deliver be upon the basis of the tax rate for the preceding year applied to the taxing authority their respective shares latest assessed valuation.
(iv) Any unconfirmed assessments will be satisfied in full by Seller at Closing. Seller will be charged and credited for the amounts of such tax xxxxall of the Proration Items relating to the period up to and including the Proration Time, prorated as and Purchaser will be charged and credited for all of Close of Escrowthe Proration Items relating to the period after the Proration Time. All The estimated Closing prorations shall be based set forth on a 360preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The prorations shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-day year.
6.7.2prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. All leasing commissions owing No prorations will be made in relation to insurance premiums, and tenant improvements Seller’s insurance policies will not be assigned to Purchaser. 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 the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Sellerutility providers, and Seller shall indemnify and hold Buyer harmless Purchaser will be obligated to make its own arrangements for lease commission claims brought against any deposits with the Real Property arising therefromutility providers. All leasing commissions and tenant improvement costs for new Leases executed after the date The provisions of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to Section 10.4(a) will survive the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Closing for twelve (12) months.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Prorations. 6.7.1. Real property estate taxes, personal property taxes, assessments, rents, expenses of operation and CAM expenses any other similar items shall be adjusted ratably as of the time of closing. Taxes for the year of Closing shall be prorated through Escrow between Buyer and Seller as of Close of Escrowthe Closing Date. All security deposits Current rents collected from Tenants under Leases shall be paid over to Buyerprorated for the month during which the Closing occurs (the term “rents” as used in this Agreement includes all payments due and payable by Tenants under the Leases). Rents and CAM expenses Real estate taxes for the calendar year of Closing shall be approved prorated as of the Closing Date. Unpaid and delinquent rent collected by Buyer prior Seller and Purchaser after the Closing Date will be delivered as follows: (i) if Seller collects any unpaid or delinquent rent for the Property, Seller will, within fifteen (15) days after the receipt thereof, deliver to Close Purchaser any such rent which Purchaser is entitled to hereunder relating to the date of Escrow. Any Closing and any period thereafter, and (ii) if Purchaser collects any unpaid or delinquent rents attributable rent from the Property, Purchaser will, within fifteen (15) days after the receipt thereof, deliver to periods Seller any such rent which Seller is entitled to hereunder relating to the period prior to the Close date of Escrow Closing. Seller and Purchaser agree that all rent received by Seller or Purchaser will be applied first to rents that became due and payable during the calendar month of Closing, and second, to those which were due and payable after Closing, and third, to those which were due and payable prior to Closing. Purchaser will use commercially reasonable efforts after Closing to collect all unpaid and delinquent rents in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to institute any lawsuit or other collection procedures to collect such unpaid or delinquent rents. In the event that there shall be any rents or other charges under any Leases which, although relating to a period prior to Closing, do not become due and payable until after Closing or are collected paid prior to Closing but are subject to adjustment after Closing (e.g., such as year end operating and common area expense reimbursements and the like), then any rents or charges of such type received by Buyer Purchaser or its agents or Seller or its agents subsequent to Closing will, to the extent applicable to a period extending through the Closing, be prorated between Seller and Purchaser as of Closing and Seller’s portion thereof will be remitted promptly to Seller by Purchaser without reduction for any costs of collection or processing. At Closing, Purchaser will be entitled to a credit against the Purchase Price for all cash security deposits held pursuant to any of the Leases (and any pre-paid rent thereunder if not then earned by Seller) and Seller shall deliver to Purchaser any non-cash security deposits thereunder, if any. Payments of accounts for water, sewer, electricity, telephone and all other utilities currently in the name of Seller (or its managing agent) shall be placed in the name of Purchaser on the Closing Date and Seller shall arrange for final meter readings and metered services to be conducted on the Closing Date. Seller shall be retained by or paid responsible to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer pay in full all bills for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating utility charges related to any period prior to Close of Escrow, the recipient Closing Date and Purchaser shall promptly deliver a copy of such tax xxxx be responsible to pay all utility charges related to any period on and subsequent to the other partyClosing Date. With respect to utilities which are not metered, charges for such service shall be prorated as of the Closing Date, based on charges for the previous billing period, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer Purchaser and Seller shall deliver receive credits or charges, as appropriate, with such amounts to be re-prorated promptly after the final bills are issued. Seller shall cooperate with Purchaser to effect the transfer of utility accounts from Seller to Purchaser. Expenses pertaining to Service Agreements that Purchaser elects to assume and personal property taxes (if applicable) and any other expenses relating to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller the parties as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Closing Date.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Real Estate Purchase Contract (Nuveen Global Cities REIT, Inc.)
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, personal property taxesas of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), assessmentsthe following (collectively, the "PRORATION ITEMS"):
(i) Rents, in accordance with Subsection 10.4(b) below.
(ii) Cash Security Deposits and any prepaid rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall together with interest required to be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected thereon.
(iii) Utility charges payable by Seller, remitted to Buyer for such purposeincluding, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) will cause Tenant readings of all said meters to be delinquent for their current rent or become financially unstable or performed not more than five (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (105) days prior to the delinquency Closing Date, and a per diem adjustment shall be made for the days between the meter reading date shown and the Closing Date based on such the most recent meter reading.
(iv) Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax xxxx Buyer rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller shall deliver agrees to pay Purchaser any increase shown by such recomputation and vice versa.
(v) Such other items of income and expense as are typically prorated at closing similar to the taxing authority their respective shares transaction contemplated by this Agreement. Seller will be charged and credited for the amounts of such tax xxxxall of the Proration Items relating to the period up to and including the Proration Time, prorated as and Purchaser will be charged and credited for all of Close of Escrowthe Proration Items relating to the period after the Proration Time. All The estimated Closing prorations shall be based set forth on a 360preliminary closing statement to be prepared by Seller and submitted to Purchaser two (2) days prior to the Closing Date (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-day yearprorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers, but Seller will, if necessary, maintain such deposits until such time as Purchaser can post its own deposits (but in no event longer than thirty (30) days after Closing) so that such utility service will not be discontinued to the Property. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
6.7.2(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. All leasing commissions owing After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include Tenant's share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant improvements or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenant under the Lease or from other occupants or users of the Property. Rental is "DELINQUENT" when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the Real Property entered into prior to execution collection of the Agreement includingany Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and will not limited to, commissions for lease renewals and expansion options, shall be paid required to pursue legal action to enforce collection of any such amounts owed to Seller by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromTenant. All leasing commissions sums collected by Purchaser from and after Closing from Tenant (excluding tenant improvement costs specific xxxxxxxx for new Leases executed after the date of this Agreement shall tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be prorated between Buyer applied first to current amounts owed by such Tenant to Purchaser and then to delinquencies owed by such Tenant to Seller. Any sums due Seller as their respective periods of ownership bears will be promptly remitted to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Seller.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 6.7.1. Real property taxesRentals, personal property revenues, and other income, if any, from the Property, taxes, assessments, rentsimprovement bonds, service or other contract fees, equity costs, and CAM other expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to affecting the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer Transferee and Seller Transferor as their respective periods of ownership bears the Closing Date based on a 365 day year. For purposes of calculating prorations, Transferee shall be deemed to be title holder of the Property, and therefore entitled to the primary term income and responsible for the expenses, after 12:01 a.m. on the Closing Date. Delinquent rentals as of the new Lease subjectClosing Date shall not be prorated, but when paid to Transferee shall be delivered by Transferee to Transferor, less the costs and expenses incurred by Transferee in collecting the same (provided that all eventscurrent rent has then been paid with respect to such Leases). After the Closing, Transferor shall have no right to proceed in any manner or make any claim against any Tenants for rents that were delinquent as of the Closing Date, except to the extent that any such person no longer occupies any portion of the Property. All non-delinquent real estate taxes or assessments on the Property shall be prorated based on the actual current tax xxxx, but if such tax xxxx has not yet been received by Transferor by the Closing Date or if supplemental taxes are assessed after the Closing for the period prior approval of said Leases as herein provided to the Closing, the parties shall make any necessary adjustment after the Closing by Buyer pursuant cash payment to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and the party entitled thereto so that Transferor shall have borne all liabilities, claims, demands, suits, and judgments, of any kind or naturereal property taxes, including court costs all supplemental taxes, allocable to the period prior to the Closing and reasonable attorney fees (except those items which under Transferee shall bear all real property taxes, including all supplemental taxes, allocable to the terms period from and after the Closing. If any expenses attributable to the Property and allocable to the period prior to the Closing are discovered or billed after the Closing, the parties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Transferor shall have borne all expenses allocable to the period prior to the Closing and Transferee shall bear all expenses allocable to the period from and after the Closing. The provisions of this Agreement specifically become Section 5.5 shall survive the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertyClosing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Acquisition and Contribution Agreement (Apartment Investment & Management Co)
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses shall The following are to be prorated through Escrow between Buyer and Seller apportioned as of Close 12:00 a.m. EDT/EST on the day of EscrowClosing. All security deposits Such adjustments, if and to the extent known and agreed upon as of Closing, shall be paid over by Buyer to Seller (if the prorations result in a net credit to Seller) or by Seller to Buyer (if the prorations result in a net credit to Buyer). Rents and CAM expenses Any such adjustments not determined as of Closing shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to paid in accordance with the Close of Escrow and which are collected by Buyer process described in the immediately preceding sentence, in cash or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not other immediately available funds as soon as practicable following Closing.
(a) cause Tenant to All non-delinquent ad valorem and non-ad valorem real property taxes and assessments for the Real Property. If the Closing shall occur before the amounts of such taxes and assessments are fixed, apportionment of such taxes and assessments shall be delinquent based upon the proposed taxes for their current rent the year 2011 promulgated by the County’s Property Appraiser’s Office using the maximum discount available or become financially unstable or (b) have if said proposed taxes are not available, then the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations apportionment shall be based on the taxes and charges paid for the latest available applicable period using the maximum discount available. Without limiting the generality of the foregoing, the parties acknowledge that Seller may be pursuing an appeal seeking a reduction in the real property taxes applicable to the Real Property for the year 2011 or prior years. Buyer agrees to cooperate reasonably with Seller in pursuing any such appeal both prior to and after the Closing Date. All rebates resulting from any such appeal shall belong solely to Seller. Within five (5) business days after Buyer receives any such rebate, Buyer shall pay such rebate to Seller. In addition, in the event the real property taxes are prorated at Closing based on an amount which is reduced subsequent to Closing as the result of any such tax xxxxappeal, Buyer agrees to reprorate the real property taxes at the request of Seller. The Buyer’s obligations set forth in this Section 5.2(a) shall survive Closing.
(b) Current accounts opened by Seller paid or payable under service or utility contracts covering the Property, including, without limitation, water, gas and electric services subject to meter readings. If after Close there is no meter or if the bills for any of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrowthe foregoing have not been issued before the Closing Date, the recipient charges therefore shall promptly deliver be adjusted on the Closing Date on the basis of the charges for the most recent prior period.
(c) Rents collected from tenants and other occupants of the Real Property, including prepaid rents and other revenues collected under the Tenant Leases. Prior to Closing, Seller shall furnish to Buyer and Escrow Holder a copy schedule of such tax xxxx all rents and other charges which are then payable by tenants and other occupants of the Real Property but which have not been paid to date. Buyer agrees that subsequent to the other partyClosing Date, any rents collected shall be applied first towards any rent arrearages owing to Seller and not later than shall be remitted to Seller within ten (10) days after receipt. The Buyer’s obligations set forth in this Section 5.2(c) shall survive Closing.
(d) All security deposits collected by Seller from tenants and other occupants of the Real Property, with any and all interest accrued thereon to the extent payable to tenants, which shall be transferred to Buyer or, at Seller’s option, appropriate adjustments therefore shall be made to the Purchase Price. Any prorations which are not expressly provided for herein shall be made in accordance with customary practice in the County. All apportionments made at the Closing pursuant to this Section 5.2 shall survive closing for a period of sixty (60) days. At the expiration of said period, unless either Seller or Buyer objects to an apportionment or proration, all adjustments shall be deemed final. Notwithstanding anything set forth in this Agreement to the contrary, Buyer acknowledges and agrees that Seller shall not be responsible for any costs, expenses or other amounts relating to or arising from the Property prior to the delinquency date shown on such tax xxxx Buyer and which Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related acquired title to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from , which shall include, without limitation, any and all liabilities, claims, demands, suits and judgments, of any kind costs or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way expenses related to the Propertyany code violations, open permits, delinquent utility charges and/or liens.
Appears in 1 contract
Samples: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Prorations. 6.7.1. Real property The Purchase Price set forth in Paragraph 3.0 is subject to the following adjustments and prorations:
9.1 Plus an amount which will credit SELLER for lease payments which have been paid in advance for time periods following Closing ("Prepaid Leases"), including those reflected on Exhibit 9.1.
9.2 Minus the amounts which will credit BUYER for the following:
9.2.1 Any lease payments for which BUYER becomes obligated relating to any period of time prior to Closing.
9.2.2 Any advertising services delivered after Closing for which SELLER has already billed or otherwise receives payment, including those reflected on Exhibit 9.2.2.
9.2.3 All items of income and expense listed below relating to the Assets will be prorated as of the Closing Date, with SELLER liable to the extent such items relate to any time period up to and including the Closing Date, and BUYER liable to the extent such items relate to periods on or subsequent to the Closing Date; including without limitation (a) personal property, real estate, occupancy and water taxes, personal property taxesif any, assessmentson or with respect to the Assets; (b) rent, rentstaxes and other items payable by SELLER under any contract to be assigned to or assumed by BUYER; (c) the amount of sewer rents and charges for water, telephone, electricity and CAM expenses shall other utilities and fuel; and (d) all rentals that are or would be prorated through Escrow between Buyer payable or have accrued pursuant to lease provisions requiring lease payments based in whole or in part upon a percentage of advertising revenue ("Percentage Leases") and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to which involve periods prior to the Close Closing Date (for purposes of Escrow and which are collected by Buyer or Seller this Section 9.2.3, the Closing Date shall be retained by the end of any such periods for accrual purposes); (e) all items paid or paid payable on or after the Closing Date under any obligation specifically assumed to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall extent not specifically referenced in clauses (a) cause Tenant to be delinquent for their - (d) above) which are normally prorated in connection with similar transactions. A list of Percentage Leases with the date of expiration is attached as Exhibit 9.2.3;
9.2.4 If current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements payments with respect to the Real Property entered into prior items to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring Section 9.2 are not ascertainable on or before the Close Closing Date, such payments shall be prorated on the basis of Escrow the most recently ascertainable xxxx therefor and which are in any way related shall be reprorated between SELLER and BUYER when the current bills with respect to the Propertysuch items have been issued and a cash settlement shall be made within thirty (30) days after notice by either party.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Asset Purchase Agreement (Universal Outdoor Holdings Inc)
Prorations. 6.7.1. Real property taxesIt is acknowledged that the Lessee, personal property taxesas lessee under the Property Lease, assessmentsshall continue to operate the Property from and after Closing and, rentspursuant to said Property Lease, shall be entitled to all revenues generated from, and CAM expenses shall be prorated through Escrow between Buyer obligated to pay all taxes and Seller as expenses (including all rental due under the Ground Lease) relating to, the Property from and after Closing and during the entire term of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; providedProperty Lease (subject, however, that any amounts collected by Buyer or Seller to 34 39 payment of the various rentals otherwise described in said Property Lease). As a result of the foregoing, there shall be first applied to no proration, at Closing of any rents then revenue, tax or expense items hereunder. However, for purposes of determining "Additional Rent" due to Buyer andand owing under the Property Lease for the year in which the Closing Date (i.e., if collected by Sellerthe "Commencement Date" under the Property Lease) occurs, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not parties agree as follows:
(a) cause Tenant All revenue received by Seller that relates to be delinquent for their current rent or become financially unstable or (b) have time periods after the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of EscrowClosing Date, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals deposits, advance registration and expansion optionsother fees previously received by Seller, rents, membership dues, initiation fees, prepaid greens fees, coupon book receipts, gift certificates, discount certificates, locker rentals, tournament fees, tradeouts, function deposits, and bag storage charges, shall be paid by deemed "Golf Course Revenue" or "Other Revenue" (as the case may be) under the Property Lease, attributable to periods following the Commencement Date of the Property Lease term on an accrual basis in accordance with generally accepted accounting principles.
(b) All of Seller's receivables, unreceived revenue and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears deferred income relating to the primary operation of the Property prior to the Closing Date and not otherwise provided for in this Section 10.2 or elsewhere in this Agreement, shall remain the property of Seller ("SELLER'S RECEIVABLES") and shall not be deemed "Golf Course Revenue" or "Other Revenue" under the Property Lease attributable to any period falling within the term of the new Lease subjectProperty Lease. It is acknowledged that the Lessee, as lessee under the Property Lease, shall continue to attempt to collect Seller's Receivables following the Closing Date. Regardless of payee designation, all payments received following the Closing Date by the Lessee, as lessee under the Property Lease, from any club member who has an outstanding Seller's Receivables shall be presumed to be payments in all events, respect to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suitscurrently due charges, and judgments, thereafter to outstanding Seller's Receivables in the inverse order of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Propertymaturity.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) on an accrual basis (except for real estate and personal property taxes and assessments which will be on a cash basis): real estate and personal property taxes and assessments which are required to be delinquent for their current rent or become financially unstable or paid during the calendar year in which the Closing occurs (bon a cash basis so that such proration pursuant to this Section 10.4(a) have shall be with respect to taxes payable in the right year in which the Closing occurs and not the taxes which are attributable to seek eviction such year but payable the following year), utility bills (except as hereinafter provided), collected Rentals (subject to the terms of (c) below) and operating expenses payable by the owner of the Tenant by unlawful detainer or other meansProperty. Tax Seller will be charged and assessment credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be based set forth on the latest available tax xxxx. If after Close of Escrow either party receives any further a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld, delayed or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten conditioned) five (105) days prior to the delinquency date shown on such tax xxxx Buyer Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller shall deliver and delivered to the taxing authority their respective shares Title Company for purposes of such tax xxxx, prorated making the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of Close the Closing Time, the prorations will be made at Closing on the basis of Escrowthe best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. All No prorations shall will be based on a 360-day year.
6.7.2made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be assigned to Purchaser. All leasing commissions owing Final readings and tenant improvements final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the Real Property entered into extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or prior to execution April 30, 2011. The provisions of this Section 10.4 (excluding subsection (e) which is governed by Section 3.2 above and subsection (f) which is governed by Section 16.1 below) will survive the Closing until May 31, 2011.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Agreement includingClosing Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, but not limited to, commissions for lease renewals and expansion options, shall Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller, Seller after Closing and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against properly attributable to any period following the Real Property arising therefromClosing Time. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller “Rentals” as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as used herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.includes fixed
Appears in 1 contract
Samples: Agreement of Sale and Purchase (KBS Real Estate Investment Trust II, Inc.)
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, (a) Rents and CAM any additional operating expenses payable under the Lease shall be prorated through Escrow between as of 12:01 a.m. on April 1, 2000 (the "Proration Date"), with Seller being responsible for such amounts accruing prior to the Proration Date and Buyer being responsible for the amounts accruing on or after the Proration Date. Notwithstanding the foregoing, Seller shall receive a credit at the Closing in the amount of the Monthly Base Rent (as defined in the Lease), Real Property Taxes (as defined in the Lease), and operating expenses due under the Lease for each day on and after April 1, 2000 and up to the Closing Date (to the extent such amounts have previously been paid by Seller to KREG or Kilrxx) xxd Buyer shall be responsible for paying the Monthly Base Rent, Real Property Taxes, and operating expenses due under the Lease for each day on and after April 1, 2000 and up to the Closing Date directly to KREG or Kilrxx (xx the extent such amounts have not previously been paid by Seller to KREG or Kilrxx, xxcluding, without limitation, Monthly Base Rent for the month of April). The amount of the security deposit under the MPower Sublease shall be credited to Buyer at the Closing, in addition to the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property. Buyer shall cause all utilities to be transferred into Buyer's name and account at the time of Closing. Buyer is responsible for the payment of all leasing commissions in connection with the MPower Sublease and iXL Sublease. Buyer shall reimburse Seller at Closing for certain tenant improvement costs and building system costs in connection with the tenant improvement work for MPower and iXL in the amount and as more fully set forth on SCHEDULE 2 attached hereto and made a part hereof. Buyer and Seller as hereby agree that if any of Close of Escrow. All security deposits the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, then the same shall be paid over to Buyer. Rents calculated as soon as reasonably practicable after the Closing Date and CAM expenses shall be approved by Buyer prior to Close either party owing the other party a sum of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be money based on the latest available tax xxxx. If after Close of Escrow either party receives any further such subsequent proration(s) or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient credits shall promptly deliver a copy of such tax xxxx pay said sum to the other party. Without limiting the foregoing, Seller shall remain liable for all monetary obligations under the Lease, MPower Sublease and not later than ten (10) days iXL Sublease which accrued prior to the delinquency date shown on such tax xxxx Buyer and Proration Date.
(b) Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360pay one-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution half (1/2) of the Agreement includingescrow fee and the costs of obtaining the CLTA portion of the Title Policy. Buyer shall pay the costs of obtaining the ALTA portion of the Title Policy, but not limited to, commissions the cost of any endorsements and one-half (1/2) of the escrow fee. Any other expenses of the escrow for lease renewals and expansion options, the sale shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller in accordance with customary practice as their respective periods of ownership bears to determined by the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Title Company.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms c) The provisions of this Agreement specifically become Section 6.4 shall survive the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertyClosing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Buy Out of Leasehold Interest (Natural Alternatives International Inc)
Prorations. 6.7.1. Real property taxes, 15.1 Water and other utility charges; fuels; prepaid operating expenses; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilities, assessmentsif any, rents, and CAM for such items); operating expenses shall be prorated through Escrow between Buyer and paid by Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved which are reimbursable by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods the tenants for the period prior to the Close Closing Date, less any amount previously paid by the tenants; unpaid operating expenses for the period prior to the Closing Date prorated on a "net" basis, as set forth above; and all other items of Escrow expense and which are collected by Buyer or income shall be adjusted ratably as of 12:01 a.m. on the Closing Date ("Proration Date"). Seller shall be retained by or paid entitled to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied a credit for all transferable utility deposits to any rents then due to Buyer andthe extent actually transferred hereunder, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other partyany, and not later than ten (10) days all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, Closing Date shall be paid by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. If any ongoing real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the contexx, shall indemnify be the most recent data for the tax year being contested and hold Buyer harmless for lease commission claims brought against (i) Purchaser agrees to re-prorate such amount as it related to the Real Property arising therefromreal estate tax proration to the extent such tax contest is successful. All leasing commissions other prorations will be final except as to delinquent rent referred to in Paragraph 15.2 below and tenant improvement costs as provided in Paragraph 15.3. Purchaser shall be credited and Seller will be charged with an amount equal to all Tenant security deposits and interest thereon being held by Seller or Seller's managing agent. Seller shall be entitled to retain all Tenant security deposits, interest thereon, or other such credit due Tenants for new Leases executed after which Purchaser receives credit and Seller is charged pursuant to this Paragraph. Seller and Purchaser agree to cooperate in the date calculation and reporting of this Agreement all closing prorations at least two (2) business days prior to the Closing Date.
15.2 All basic rent collected by Seller shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.12.01 a.m.
Appears in 1 contract
Prorations. 6.7.1. Real property taxesSeller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”): real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsperiodic fees or assessments under declarations, rentsreciprocal easement agreements or similar agreements to which the Property is subject, utility bills (except as hereinafter provided), amounts payable or paid under any Service Contracts assumed by Purchaser, collected Rentals (subject to the terms of Section 10.4(b) below) accrued interest under the Mortgage Loan and operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and CAM expenses Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld, delayed or conditioned) at least two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. All security deposits The preliminary proration shall be paid over at Closing by Purchaser to BuyerSeller (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. Rents If the actual amounts of the Proration Items are not known as of the Closing Time, 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 CAM expenses shall a final cash settlement will be approved by Buyer prior made between Seller and Purchaser. No prorations will be made in relation to Close of Escrow. Any delinquent rents attributable to periods prior insurance premiums (except to the Close extent covered by the proration of Escrow Operating Expense Recoveries), and Seller’s insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which are collected by Buyer or Seller shall be retained by or paid to Seller; providedevent (that is, however, that any amounts collected by Buyer or Seller shall be first applied as to any rents then due to Buyer andutility account, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction a final billing as of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall Closing Time is then available) no proration will be based on made at the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements Closing with respect to utility bills (except to the Real Property entered into prior extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to execution all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers (and if so requested in writing by Purchaser, Seller will provide reasonable and good faith assistance to Purchaser in establishing new utility accounts, at no cost or liability to Seller). A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before the Agreement includinglater of twenty (20) days after Closing and March 15, but not limited to2015 (the "Final Reconciliation Date"); provided that such reconciliation, commissions for lease renewals and expansion optionsas it relates to real estate taxes, shall be paid made within thirty (30) days following the issuance of the tax bills for each Real Property. The provisions of this Section 10.4 (excluding subsection (e) which is governed by SellerSection 3.2 above), will survive the Closing until the Final Reconciliation Date (and such period reasonably necessary thereafter for any payment owing under this sentence to be made), and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against in the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after event any items subject to proration hereunder are discovered on or before the date Final Reconciliation Date to be in error so as to result in a monetary adjustment of this Agreement greater than $500, the same shall be promptly prorated between Buyer and Seller as their respective periods of ownership bears to by the primary term of the new Lease subject, parties in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under accordance with the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertySection 10.4.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Prorations. 6.7.1(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”):
(i) Rentals, in accordance with Section 10.4(b) below and other income from the Property.
(ii) Any prepaid rents.
(iii) Taxes.
(iv) All operating expenses paid by the owner of the Property. Real property taxes, personal property taxes, assessments, rentsSeller 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 CAM expenses Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Seller and Seller as of Close of Escrowsubmitted to Purchaser prior to the Closing Date (the “Closing Statement”). All security deposits The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be assigned to Purchaser. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Buyer. Rents Purchaser all Rental, if any, received by Seller after Closing and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by the Tenant under the Leases or from other occupants or users of the Property. Rental is “Delinquent” when it was due prior to the Close Closing Date, and payment thereof has not been made on or before the Proration Time. Purchaser agrees to use commercially reasonable efforts with respect to the collection of Escrow any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and which are will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by Tenant. All sums collected by Buyer or Seller shall Purchaser from and after Closing from Tenant (excluding tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(c) below) will be retained applied first to current amounts owed by or paid the Tenant to Purchaser and then to delinquencies owed by Tenant to Seller; provided, however, that any amounts collected by Buyer or . Any sums due Seller shall will be first applied to any rents then due to Buyer and, if collected by Seller, promptly remitted to Buyer for such purposeSeller. Seller shall have the right no rights after Closing to pursue attempt to collect any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which amounts due under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on Lease or before the Close of Escrow and which are in any way related to the Propertyotherwise pursue Tenant.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 6.7.115.1 Water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes prorated on a "net" basis (i.e. adjusted for all tenants' liabilities, if any, for such items); tenant reimbursement obligations for operating expenses paid by Seller for the period prior to the Closing Date; unpaid operating expenses for the period prior to the Closing Date prorated on a "net" basis, as set forth above; and all other items of expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing Date ("Proration Date"). Real property Seller shall be entitled to a credit for all transferable utility deposits transferred hereunder, if any, and all other utility deposits, if any, may be withdrawn by and refunded to Seller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Assessments, excluding regular ad valorem real estate taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits payable in installments which are due prior to the Closing Date shall be paid over by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to Buyer. Rents and CAM expenses the Closing Date shall be approved paid by Buyer prior Purchaser. If the amount of any of the items to Close be prorated is not then ascertainable, the adjustments thereof shall be on the basis of Escrowthe most recent ascertainable data. Any delinquent rents attributable to periods If any ongoing real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to the Close of Escrow and which are collected by Buyer or Seller contxxx, shall be retained the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All other prorations will be final except as to delinquent rent referred to in Paragraph 15.2 below and as provided in Paragraph 15.3.
15.2 All basic rent paid following the Closing Date by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction tenant of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a Lease for basic rent for any period prior to Close the Proration Date in an amount greater than the amount of Escrow, all current basic rent and any delinquency accruing after the recipient Closing Date owed by said tenant to Purchaser shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt byPurchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder, provided Purchaser shall not be obligated to incur any expense, terminate any Lease or institute eviction or legal proceedings to collect "post-closing receipts." Purchaser shall promptly deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the delinquency date shown on such tax xxxx Buyer terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller shall deliver be responsible for preparing all 1996 operating expense reconciliation statements and shall pay to Tenants any amounts owed to Tenants for overcharges in 1996 or any previous year in accordance with the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution provisions of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromrespective Leases. All leasing commissions and tenant improvement costs for new Leases executed after the date This Paragraph 15.2 of this Agreement shall be prorated between Buyer survive the Closing and the delivery and recording of the Deed.
15.3 All refunds in connection with any ongoing real estate tax protests for the Property initiated by Seller as their respective periods of ownership bears prior to the primary term Closing shall remain the property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the new Lease subjectevent any such refunds are paid to Purchaser, in Purchaser agrees to promptly remit all eventssuch sums to Seller. Purchaser agrees, at no cost or expense to Purchaser, to the prior approval of said Leases as herein provided execute any documents reasonably requested by Buyer pursuant to Paragraph 7.3Seller in connection with such tax protests.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1Prepaid or accrued (as the case may be) interest on the Loan Documents, rents for the month of the Closing (exclusive of delinquent rents, but including prepaid rents); any previously paid signing bonus or similar payment relating to any laundry room, cable, telephone or similar agreement in effect as of the Closing, refundable security deposits with interest if required by local law (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); refundable and non-refundable pet and cleaning fees and deposits, water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes (as provided for in the next following sentence); and other similar items shall be adjusted ratably as of 12:01 A.M. on the Closing Date ("Proration Date"), and credited or debited to the balance of the cash due at Closing. Real property taxes, personal property taxes, assessments, rents, and CAM expenses taxes shall be prorated through Escrow between Buyer based on the following information in the following circumstances: (i) if the current tax bxxx is available, real property taxes shall be prorated based on that tax bxxx; (ii) if the tax bxxx for the current tax year is not available and the assessed valuation for the Property for the current tax year is not available, real property taxes shall be prorated based on 106% of the most recently available tax bxxx; and (iii) if the tax bxxx for the current tax bxxx is not available but the assessed valuation for the Property for the current tax year is available, real property taxes shall be prorated based on 101% of the tax rate for the prior tax year multiplied by the equalization factor for the prior tax year, if applicable, multiplied by the current assessed valuation for the Property. In addition, Seller shall receive as a credit from Purchaser the amount of Close any escrow and reserve accounts relating to the Bonds and/or the Loan Documents (including, without limitation, debt service escrow accounts, tax escrow accounts, replacement reserves, repair reserves and insurance escrow accounts). Finally, Purchaser shall receive as a credit at Closing any amounts, if any, then owing by the Seller to the Lender which are unrelated to the assumption of Escrowthe Bonders by the Purchaser or the release of Seller under the Bonds. If the amount of any of the items to be prorated is not then ascertainable, the adjustment thereof shall be on the basis of the most recent ascertainable data. All security deposits shall prorations will be paid over final except as to BuyerDelinquent Rents referred to in 13B below, and errors in calculation on the closing statement. Rents and CAM expenses shall be approved by Buyer prior to Close If special assessments have been levied against the Property for completed improvements, then the amount of Escrow. Any delinquent rents attributable to periods any installments which are due prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, Closing Date shall be paid by the Seller, ; and Seller the amount of installments which are due after the Closing Date shall indemnify and hold Buyer harmless for lease commission claims brought against be paid by the Real Property arising therefromPurchaser. All leasing commissions and tenant improvement costs assessments for new Leases executed after the date of this Agreement incomplete improvements shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided paid by Buyer pursuant to Paragraph 7.3Purchaser.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale (Balcor Realty Investors 85 Series Iii)
Prorations. 6.7.116.1. Real property taxesRents (including rent under the Ground Lease) (exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); interest, costs and fees accruing under the Loan Documents; water and other utility charges; fuels; prepaid operating expenses; management fees as provided in the management agreement with Insignia; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all Tenants' liabilities, assessmentsif any, rentsfor such items); operating expenses paid by Seller which are reimbursable by the Tenants for the period prior to the Closing Date, and CAM less any amount previously paid by the Tenants shall be credited to Seller; unpaid operating expenses for the period prior to the Closing Date shall be prorated through Escrow between Buyer on a "net" basis, as set forth above; and Seller all other items of expense and income shall be adjusted ratably as of Close 12:01 a.m. on January 1, 1996 (the "Proration Date"), and credited to the balance of Escrowthe cash due at Closing. All security deposits Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due prior to the Closing Date shall be paid over by Seller. Assessments, excluding regular ad valorem real estate taxes, payable in installments which are due subsequent to Buyer. Rents and CAM expenses the Closing Date shall be approved paid by Buyer prior Purchaser. If the amount of any of the items to Close be prorated is not then ascertainable, the adjustments thereof shall be on the basis of Escrow. Any delinquent rents attributable to periods the most recent ascertainable data and if the 1995 real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the 1995 tax bill prior to the Close contest (adjusxxx, if necessary, to reflect 100% of Escrow the assessed value and taxes rather than 85%), shall be the most recent data for 1996 and (i) Purchaser agrees to re-prorate such amount as it relates to the 1996 proration to the extent the 1995 tax contest is successful and (ii) Seller agrees to re-prorate such amount as it relates to the 1996 proration to the extent the 1995 tax contest is unsuccessful. Seller will receive a credit for any balances in escrow accounts established pursuant to the Loan Documents and acknowledged in writing by Lender. All prorations will be final except as to delinquent rent referred to in Paragraph 16.2 below and as provided in Paragraphs 16.3, 16.4 and 16.5. Notwithstanding the terms and provisions of Paragraph 16.2 below, Purchaser acknowledges that the Government pays rent under the U. S. Government Lease for Real Property No. GS-04B-15730 dated August 5, 1977, as amended (the "G.S.A. Lease"), in arrears. Upon receipt by Purchaser, Purchaser shall pay over to Seller Seller's pro rata share of the rent paid by the Government for the month in which the Closing occurs. Notwithstanding anything contained herein to the contrary, Purchaser's obligation to pay such funds to Seller as set forth more fully in this Paragraph 16.1 shall survive the Closing and the recording of the Deed.
16.2. Except as set forth in the second to the last sentence of Section 16.1 above, all basic rent paid following the Closing Date by any tenant of the Property who is indebted under a Lease for basic rent for any period prior to the Proration Date in an amount greater than the amount of all current basic rent owed by said Tenant to Purchaser shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 180 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 150 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Paragraph 16.2 of this Agreement shall survive the Closing and the delivery and recording of the deed.
16.3. Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Seller is retaining the following rights, none of which are collected being conveyed, assigned or transferred to Purchaser pursuant to this Agreement or any documents executed by Buyer Seller in connection herewith. All of the items set forth in this Section 16.3 shall survive the Closing and the recording of the Deed.
16.3.1. Seller has advised Purchaser that Seller has protested the real estate taxes for the Property for calendar years 1991, 1992, 1993, 1994 and 1995. All refunds in connection with such tax protests remain the property of Seller and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the event any such refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees, at no cost or expense to Purchaser, to execute any documents reasonably requested by Seller, in connection with such tax protests.
16.3.2. Seller has advised Purchaser that Seller has applied to the U.S. Olympic Committee to receive tickets to the 1996 Olympics to be held in Atlanta, Georgia and that the application for the tickets was made in the name of the Property. The tickets assigned to the Property are set forth on Exhibit V attached hereto and made a part hereof. All tickets shall remain the property of Seller and are not being assigned, transferred or conveyed to Purchaser. If any such tickets are delivered to Purchaser, Purchaser agrees to promptly deliver such tickets to Seller. Purchaser agrees, at no cost or expense to Purchaser, to execute any documents reasonably requested by Seller, in connection with the foregoing tickets.
16.4. Seller hereby agrees to pay and discharge the lien of all charges for real estate taxes for 1995 and prior years of Seller's ownership of the Fee Property. The provisions of the foregoing sentence shall survive the Closing and delivery and recording of the Deed. Notwithstanding anything contained herein to the contrary, on the Closing Date, Seller shall establish an escrow (the "Real Estate Tax Escrow"), pursuant to which Seller shall deposit the following sums into escrow to be retained held by Escrowee and to be governed by the terms of an escrow agreement, the form of which shall be agreed upon by Seller and Purchaser prior to the expiration of the Inspection Period:
(a) that portion of the refunds actually received for real estate taxes due from the City of Atlanta and Fulton County, Georgia on accounx xx xhe tax appeals filed for the calendar years 1991, 1992 and 1993 necessary to reconcile real estate taxes paid by Tenants, but only with respect to those Tenants entitled to refunds under their respective Leases and also deducting therefrom Seller's estimated third party costs and expenses incurred or paid to Sellerbe incurred in connection with the tax appeal filed for such calendar years (the "1991-93 Amount"); provided, however, that any amounts collected by Buyer or Seller shall promptly deposit into the Real Estate Tax Escrow any refund received subsequent to the Closing Date on account of the refunds for real estate taxes for the calendar years 1991 and 1992 to the Real Estate Tax Escrow less estimated third party costs and expenses incurred or to be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer incurred in connection with the tax appeal for such purposecalendar year. Seller The provisions of the foregoing sentence shall survive the Closing and recording of the Deed; plus
(b) the greater of: (i) the difference between the amount of 1994 and 1995 real estate taxes which would have been due on the right Property, as previously assessed if no tax appeal had been filed for each such calendar year and the actual amount of real estate taxes paid for the calendar years 1994 and 1995; and (ii) the amount necessary to pursue any Tenant reconcile real estate taxes paid by Tenants for delinquent rentcalendar years 1994 and 1995, but only with respect to those Tenants entitled to refunds under their respective Leases and also deducting therefrom Seller's estimated third party costs and expenses incurred or to be incurred in connection with the tax appeal filed for such calendar years (the "1994-95 Amount").
16.4.1. The 1991-93 Amount shall not be disbursed:
(a) cause Directly to Tenants under existing Leases as indicated on the Rent Roll attached hereto as Exhibit T upon the reconciliation date set forth for such Tenant under its Lease, to be delinquent for their current rent or become financially unstable or the extent such Tenant is entitled to its pro rata share of the 1991-93 Amount, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller;
(b) have the right Directly to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days Tenants under Leases which terminated prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver Closing Date, to the taxing authority their respective shares extent such Tenant is entitled to its pro rata share of the 1991-93 Amount under its Lease, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller; Purchaser shall request its property manager to locate such Tenants and pay such amounts, if such Tenants exist, or Purchaser shall pay such amounts upon demand of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.Tenant in accordance with the preceding sentence; and
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution (c) Any remaining balance of the Agreement including1991-93 Amount, but not limited to, commissions for lease renewals and expansion optionstogether with all interest earned thereon, shall be paid by Seller, and refunded to Seller shall indemnify and hold Buyer harmless for lease commission claims brought against on the Real Property arising therefromfirst (1st) anniversary of the Closing Date.
16.4.2. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement The 1994-95 Amount shall be prorated between Buyer and Seller disbursed as their respective periods follows:
(a) If Seller's tax appeal for the calendar year 1994 is successful, that portion of ownership bears the 1994-95 Amount attributable to the primary term of calendar year 1994 shall be disbursed:
(i) Directly to Tenants under existing Leases as indicated on the new Lease subject, in all eventsRent Roll attached hereto as Exhibit T upon the reconciliation date set forth for such Tenant under its Lease, to the extent such Tenant is entitled to its pro rata share of the 1994-95 Amount, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller;
(ii) Directly to Tenants under Leases which terminated prior approval to the Closing Date, to the extent such Tenant is entitled to its pro rata share of said the 1994-95 Amount under its Lease, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller; Purchaser shall request its property manager to locate such Tenants and pay such amounts if such Tenants exist, or Purchaser shall pay such amounts upon demand of such Tenant in accordance with the preceding sentence; and
(iii) Any remaining balance of that portion of the 1994-95 Amount attributable to 1994, together with all interest earned thereon, shall be refunded to Seller on the first (1st) anniversary of the final determination of the 1994 tax contest.
(b) If Seller's tax appeal for the calendar year 1994 is not successful, that portion of the 1994-95 Amount attributable to 1994 shall be applied to pay the amount of 1994 real estate taxes actually assessed by the City of Atlanta and Fulton County, Georgia, respectixxxx, and any remaining balance attributable to 1994 shall be promptly disbursed to Seller.
(c) If Seller's tax appeal for the calendar year 1995 is successful, that portion of the 1994-95 Amount attributable to 1995 shall be disbursed:
(i) Directly to Tenants under existing Leases as herein provided indicated on the Rent Roll attached hereto as Exhibit T upon the reconciliation date set forth for such Tenant under its Lease, to the extent such Tenant is entitled to its pro rata share of the 1994-95 Amount, if any, as evidenced by Buyer pursuant a reconciliation prepared by Purchaser and reasonably acceptable to Paragraph 7.3Seller;
(ii) Directly to Tenants under Leases which terminated prior to the Closing Date, to the extent such Tenant is entitled to its pro rata share of the 1994-95 Amount under its Lease, if any, as evidenced by a reconciliation prepared by Purchaser and reasonably acceptable to Seller; Purchaser shall request its property manager to locate such Tenants and pay such amounts, if such Tenants exist, or Purchaser shall pay such amounts upon demand of such Tenant in accordance with the preceding sentence; and
(iii) Any remaining balance of that portion of the 1994-95 Amount attributable to 1995, together with all interest earned thereon, shall be refunded to Seller on the first (1st) anniversary of the final determination of the 1995 tax contest.
6.7.3. Seller agrees (d) If Seller's tax appeal for the calendar year 1995 is not successful, that portion of the 1994-95 Amount attributable to indemnify 1995 shall be applied to pay the amount of 1995 real estate taxes actually assessed by the City of Atlanta and hold Buyer harmless from any and all liabilitiesFulton County, claimsGeorgia, demands, suitsrespectixxxx, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related remaining balance attributable to the Property1995 shall be promptly disbursed to Seller.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.113.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); fuels; prepaid operating expenses; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, assessmentsif any, rentsfor such items); operating expenses which are reimbursable by the tenants for the period prior to the Closing Date less any amount previously paid by the tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the date prior the Closing Date, and CAM expenses credited to the balance of the cash due at Closing. Utilities, including water, sewer, electric, and gas shall be prorated through Escrow between Buyer at Closing based on the most recent ascertainable data. Seller shall pay at Closing the bills therefor for the period to and including the Closing, and the Purchaser shall pay the utility bills therefor for all periods subsequent thereto. If the utility company will not issue separate bills, the Purchaser shall receive a credit against the Purchase Price for Seller's portion and shall pay the entire utility bill after Closing. If Seller hxx xre-paid any such utilities (so long as no more than thirty (30) days in advance in the ordinary course of Close business), then Purchaser shall be charged its portion of Escrowsuch payment at Closing. All security No proration shall be made for utility expenses that are separately metered to and paid directly by tenants and for which Seller has no obligation to pay. Furthermore, the Purchaser and the Seller may accomplish the transfer of utility accounts by arranging for a change of address on utility billing accounts to the Purchaser's address, if such a procedure is possible and convenient and mutually acceptable to Purchaser and Seller. Seller shall be reimbursed at Closing for any utility deposits which the Seller has deposited with any utility company and which will be assigned to the Purchaser at Closing. Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. Seller shall use good faith efforts to Buyerdeliver any information regarding special assessments to Purchaser within fifteen (15) days of Seller's receipt of such information. Rents and CAM expenses If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior on the basis of the most recent ascertainable data. The Purchaser shall assume Seller's obligations under the Seller's existing real estate tax consulting agreements with respect to Close the Properties, i.e., those agreements which Seller has entered into with firms who are entitled to a commission based on services rendered and the extent to which they are able to achieve a reduction in the real estate taxes otherwise payable with respect to the Properties, but only to the extent the performance of Escrow. Any delinquent rents attributable to periods such services occurs prior to the Close Closing Date. Seller shall deliver to Purchaser all such real estate tax consulting contracts within thirty (30) days of Escrow the date hereof. The fees or commissions payable to said consultants (if any) shall be treated as a portion of the real estate tax liability to be pro-rated as of the Closing Date. All costs associated with telephone directory listings and which are collected by Buyer or any other prepaid advertisements shall be prorated as of the Closing Date so that Seller shall be retained responsible for any costs associated therewith prior to the Closing Date and Purchaser shall be responsible for any costs associated therewith arising from and after the Closing Date. All prorations described in this Agreement shall be deemed final as prorated on the Closing Date, except as to (a) delinquent rent referred to in Paragraph 13.2 below and (b) real and personal property taxes which shall be reprorated on December 1, 1997 based upon the then most recently ascertainable tax information.
13.2. For a period of ninety (90) days following the Closing Date, all basic rent paid following the Closing Date by or any tenant of the Properties who is indebted under a Lease for basic rent for any period prior to and including the Closing Date after the payment to Purchaser of all current basic rent shall be deemed a "Post-Closing Receipt" until such time as all such indebtedness is paid in full. On the last business day of each month following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller; provided. Purchaser shall use its best efforts to collect all amounts which, howeverupon collection, that would constitute Post-Closing Receipts hereunder. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any amounts collected by Buyer or Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and the cost of performing Seller's audit. After the Closing, in no event shall Seller attempt to evict a tenant through any manner. Paragraph 13.2 of this Agreement shall survive the Closing and the delivery and recording of the deed.
13.3. To the extent it is reasonably possible for the Seller to do so, the Seller shall be first applied grant (or shall arrange for the owner thereof to any rents then due grant) to Buyer and, if collected Purchaser at Closing a temporary license and right to use the logos currently used by the Property which are the property of an Affiliate of Seller, remitted in place advertising, telephone directory listings and advertisements, and telephone numbers, at each of the Properties pursuant to Buyer for the following terms and conditions:
(a) The temporary license granted by this paragraph shall commence on the Closing Date and shall expire on the day which is one hundred eighty (180) days subsequent to the date when the public telephone directory pertaining to each Property is published subsequent to the Closing Date. During such purpose. Seller period, Purchaser shall have the right to pursue any Tenant for delinquent rentuse the existing logos, but in place advertising, telephone directory listings and advertisements, and telephone numbers, with respect to each Property without additional compensation to the Seller except as set forth in Paragraph 13.1 herein. Purchaser shall not (a) cause Tenant use the existing logos or trade name on stationery, business cards, contracts or other documents, and shall not use the existing trade name in responding to be delinquent for their current rent or become financially unstable or oral inquiries regarding the Properties except to identify a Property as formerly owned by the Seller.
(b) The Seller stipulates that there is full and adequate consideration for the license herein granted.
(c) Purchaser shall make arrangements with the pertinent telephone companies so that all existing telephone directory listings and advertisements and signs can be replaced in due course and within the license period specified above. In the event that the publication close date for any publication in which Seller currently has a telephone directory listing and/or advertisement occurs after the date hereof but before the Closing Date, Purchaser shall have the right to seek eviction place a listing and/or advertisement in such publication at Purchaser's sole cost and expense. Such listing and/or advertisement may list the Purchaser's name and telephone number. Seller may also place a listing and/or advertisement in such publication, and in the event that Seller decides to place such a listing and/or advertisement, Seller shall be entitled to a pro-rata credit for such portion of the Tenant by unlawful detainer cost of such listing and/or advertisement attributable to the period after Closing.
(d) In the event any third party (such as telephone company or other means. Tax and assessment prorations billboard company) makes a separate charge for the use of such listings or advertising subsequent to the Closing Date, then Purchaser shall be based responsible to pay same subsequent to the Closing Date (but no such payment shall accrue to the benefit of the Seller or constitute a credit against a debt otherwise owed by the Seller to said third party).
(e) Purchaser's temporary license set forth in this paragraph shall expire on the latest available tax xxxxdate(s) set forth above. If after Close of Escrow either party receives any further or supplemental tax xxxx relating Purchaser continues to any period prior to Close of Escrow, use the recipient shall promptly deliver a copy of such tax xxxx name currently being used by the Property subsequent to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the expiration date of this Agreement temporary license set forth above, then Purchaser shall be prorated between Buyer liable for and Seller as their respective periods of ownership bears shall pay to the primary term owner of said rights a license fee equal to One Hundred Dollars ($100.00) for each day after the permitted date set forth above for each Property for which Purchaser continues to use the existing trade name. In no event, however, shall such extended license period exceed ninety (90) additional days.
(f) If Purchaser continues to use said logos or trade names beyond the period allowed above for which a temporary license has been granted, then Seller (or the owner of said rights) shall have all legal and equitable remedies authorized by federal law or the laws of the new Lease subject, in all events, state where such Property is located to the prior approval of said Leases as herein provided prevent such unauthorized use or to recover any damages authorized by Buyer pursuant to Paragraph 7.3such laws.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Sale Agreement (Balcor Colonial Storage Income Fund 85)
Prorations. 6.7.1(a) Seller and Purchaser agree to adjust, as of the Closing Date, the following (collectively, the "PRORATION Items"): real estate taxes and assessments only. Real property taxes, personal property taxes, assessments, rentsSeller will be charged or credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Date, and CAM expenses Purchaser will be charged or credited for all of the Proration Items relating to the period after the Closing Date. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Seller using its reasonable business judgment and submitted to Purchaser for Purchaser's approval (which approval shall not be unreasonably withheld, delayed or conditioned) (the "CLOSING STATEMENT"). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. All security deposits The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made between Seller and Purchaser in respect of Rentals, operating costs, Billable Operating Costs or insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. All adjustments other than the specified Proration Items shall be made by Seller, as landlord, and Tenant, as tenant, which adjustments shall be made in accordance with the Lease as if the Closing Date and Lease Surrender were the expiration date of the Lease. Final readings and final xxxxxxxx for utilities will be made as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills, otherwise, such prorations shall be made between Seller and Tenant, as aforesaid, for the period up to and including the Closing Date, and between Tenant and Purchaser for the period after the Closing Date. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Purchaser will use reasonable efforts to give Seller ten (10) business days notice of the Closing Date to allow Seller adequate time to arrange for final readings and calculation of all prorations. The provisions of this Section 10.4 will survive the Closing for nine (9) months.
(b) Purchaser will cause to be paid or turned over to Buyer. Rents Seller, in the form received by Purchaser, all Rentals, if any, received by Purchaser after Closing and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods the Tenant Lease for any period prior to the Close Closing Date. Purchaser will have no liability for the failure to collect any such amounts and will not be required to take any other legal action to enforce collection of Escrow any such amounts owed to Seller by the Tenant of the Property. After the Closing Date, Seller may collect Delinquent Rentals and which are collected by Buyer or Seller shall be retained by or paid xxxxxxxx described in Section 10.4(d) below from Tenant and take other legal non-possessory action to Seller; enforce collection of any such amounts, provided, however, that any amounts collected by Buyer or in no event will Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction threaten termination of the Tenant by unlawful detainer Lease or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives institute any further eviction or supplemental tax xxxx relating to any period prior to Close of Escrowejectment proceedings.
(c) Seller, the recipient shall promptly deliver a copy of such tax xxxx to the other partyusing its reasonable business judgment, and not later than ten will prepare, at least seven (107) days prior to the delinquency Closing Date, a reconciliation as of the Closing Date of the amounts of all xxxxxxxx and charges for Tenant's use of water & sewer, operating costs and tax escalations (collectively, "BILLABLE OPERATING COSTS") comparing actual electricity and operating costs escalations for the year-to-date shown until the Closing Date with Seller's actual collections of Billable Operating Costs that have actually been charged to Tenant for the calendar year in which Closing occurs and submit such reconciliation to Tenant for its approval. All adjustments of Billable Operating Costs shall be conducted by Seller and Tenant. In no event will Purchaser be responsible for any adjustment on account of Billable Operating Costs. If more amounts have been expended for Billable Operating Costs than have been billed to and collected from Tenant for Billable Operating Costs, Seller will seek to collect such tax xxxx Buyer difference from Tenant at Closing. If more amounts have been collected from Tenant for Billable Operating Costs than have been expended for Billable Operating Costs, Seller will remit to Tenant at Closing such excess collected amount. Purchaser and Seller shall deliver agree that such proration of Billable Operating Costs at the Closing will fully relieve Purchaser from any responsibility to Tenant or Seller for such matters. In this regard, Seller will be solely responsible for (i) seeking collection from Tenant of the amount of any Billable Operating Costs not previously collected, and (ii) where appropriate, reimbursing Tenant for amounts attributable to Billable Operating Costs as may be necessary based on annual reconciliations for Billable Operating Costs for all calendar years including the calendar year in which Closing occurs. (The provisions of this subsection do not apply to Billable Operating Costs for the calendar year preceding the calendar year in which Closing occurs, the same being governed by Section 10.4(b) above.)
(d) With respect to specific tenant xxxxxxxx for work orders, special items performed or provided at the request of Tenant, other specific services, and specific xxxxxxxx for Billable Operating Costs or other additional rents and amounts due which relate to the taxing authority their respective shares of such tax xxxxforegoing specific services rendered by Seller prior to the Closing Date, prorated as of Close of Escrow. All prorations Seller may seek to collect same from Tenant in accordance with the Lease and Purchaser shall be based on a 360-day yearhave no responsibility therefor.
6.7.2. All leasing commissions owing and (e) Nothing contained in this Agreement shall obligate or be deemed to obligate Purchaser to pay or reimburse Seller for any Commissions, tenant improvements improvement costs or other expenditures with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3existing Tenant Lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Imclone Systems Inc/De)
Prorations. 6.7.1All revenues, income, receiv- axxxx, costs, expenses and payables of the Property shall be apportioned equitably between the parties as of Closing on the basis of the actual number of days in a particular month, and with respect to the items enumerated below where a particular manner of apportionment is provided, then apportionment of such item shall be made in such manner. Real property taxesThe obligation to make apportionments shall survive Closing. Without limitation, personal property taxesthe following items shall be so apportioned:
(i) Monthly rents and percentage rent and "passthroughs" of real estate taxes and operating expenses due from occupancy tenants under Tenant Leases, assessmentsas and when collected. If at Closing there are any past due rents or charges owed by occupancy tenants, they shall not be prorated until received; Purchaser shall include such delinquencies in its normal billing and shall pursue the collection thereof in good faith after the Closing Date (but Purchaser shall not be required to litigate or declare a default in any Tenant Lease). To the extent Purchaser receives amounts on account of Tenant Leases on or after the Closing Date, such payments shall be applied first toward then current rent owed to Purchaser in connection with the applicable Tenant Lease for which such payments are received, and any excess monies received shall be applied toward the payment of any delinquent rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrowwith Seller's share thereof being promptly delivered to Seller. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any Purchaser may not waive any delinquent rents attributable nor modify a Tenant Lease so as to periods prior reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to the Close receive its share of Escrow and which are collected by Buyer charges or Seller shall be retained by or paid to amounts without first obtaining Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose's written consent. Seller shall have hereby reserves the right to pursue any Tenant for remedy against any tenant owing delinquent rent, rents and any other amounts to Seller. Purchaser shall reasonably cooperate with Seller in any collection efforts hereunder (but shall not (a) cause Tenant be require to be litigate or declare a default in any Lease). With respect to delinquent for their current rent rents and any other amounts or become financially unstable or (b) have the right to seek eviction other rights of any kind respecting tenants who are no longer tenants of the Tenant by unlawful detainer or other meansProperty as of the Closing Date, Seller shall retain all rights relating thereto.
(ii) Real estate and personal property taxes and any special assessments, taking into consideration discounts for the earliest permitted payment, based upon the latest previous tax levies. Tax and assessment prorations Such items shall be based on reapportioned between Seller and Purchaser if current tax rates differ from the latest available previous tax xxxxrates as soon as the same are known. If after Close of Escrow either party receives Seller agrees that to the extent any further additional taxes, assessments or supplemental tax xxxx relating levies are imposed, assessed or levied against the Property, or any portion thereof, the Seller or the Purchaser at any time subsequent to Closing but with reference to any period prior to Close of Escrowthereto during Seller's ownership thereof, the recipient Seller shall promptly deliver pay to Purchaser an amount equal to such additional assessments or levies. Similarly, if tax refunds become payable for periods during Seller's ownership of the Property, such amounts (subject to adjustments for the potential claims of occupancy tenants that paid tax increases by way of rent escalations to Seller) shall be promptly paid over to Seller. In the event that any assessments on the Property are payable in installments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installment due after the Closing Date). In no event shall Seller be charged with or be responsible for any increase in the taxes on the Property resulting from the sale of the Property or from any improvements made or lease entered into on or after the Closing Date.
(iii) Transferable annual permits, licenses, and/or inspection fees, if any, on the basis of the duration of the same;
(iv) Security Deposits, plus accrued interest, if any, payable thereon to tenants which have not been validly applied by Seller to a copy prior default by any of such tax xxxx tenants, and any other deposits and prepaid rent, shall be credited (or assigned) to Purchaser;
(v) Subject to the other partyprovisions of Paragraph 12(c) below, utility charges levied against Seller or the Property, and not later than ten Purchaser shall transfer all such utility services to its name and account immediately upon Closing;
(10vi) days prior to Service Contracts on the delinquency date shown on such tax xxxx Buyer basis of the charge or premium for the period involved;
(vii) Tenant improvements costs and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to for leases signed after the Real Property entered into prior to execution of the Agreement includingNovember 1, but not limited to, commissions for lease renewals and expansion options, 1996 shall be paid by SellerPurchaser if approved by Purchaser in accordance with Paragraphs 7(a) and 7(b).
(viii) All other operating expenses incurred in the management and operation of the Property. No insurance policies shall be assigned hereunder, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement accordingly there shall be prorated between Buyer and Seller as their respective periods no proration of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3insurance premiums.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.112.1. Real property taxesXxxts (exclusive of delinquent rents, but including prepaid rents); refundable security, pet and other deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid on-site operating expenses; real and personal property taxes, assessments, rents; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited against the balance of Close of Escrowthe cash due at Closing. All security deposits Assessments payable in installments which are not due until after the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the Closing Date by unlawful detainer or other means. Tax and assessment prorations shall be based on any tenant of the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for basic rent for any period prior to Close of Escrow, and including the recipient Closing Date shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than ten time as all such indebtedness is paid in full. Within thirty (1030) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at reasonable times and expansion optionsupon reasonable notice, shall be paid by of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, and Purchaser shall pay to Seller shall indemnify and hold Buyer harmless for lease commission claims brought against said additional Post-Closing Receipts and, if the Real Property arising therefromadditional funds owing to Seller exceed $1,000 the cost of performing Seller's audit. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxxbxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx bxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx bxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx bxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxxbxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Escrow as of the date of Close of Escrow on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Close of Escrow occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under Lease to the total number of days in said Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and/or any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall promptly provide to the other party a copy of the Gross Sales Report and/or a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the percentage rent prior to receiving the percentage rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the tenant. NOTWITHSTANDING ANYTHING TO THE CONTRARY, HOWEVER, THE PARTIES HAVE AGREED THAT SELLER SHALL GIVE BUYER A CREDIT AT CLOSING FOR PREPAID RENT IN THE AMOUNT OF THREE HUNDRED ONE THOUSAND, TWO HUNDRED SIX DOLLARS ($301,206.00).
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property. The provisions of this Section 6.7 shall survive the Close of Escrow.
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Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments normally billed and collected in the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), operating expenses payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed), and CAM expenses Pre-Closing Taxes (other than those described above) for the current Tax period or that are not yet delinquent. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. All security deposits The preliminary proration shall be paid at Closing by Purchaser to Seller (if the preliminary prorations result in a net credit to Seller) or by Seller to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Time, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s and the Owners’ insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. A final reconciliation of Proration Items shall be made by Purchaser and Seller on or before the date six (6) months after the Closing Date (herein, the “Final Proration Date”). The provisions of this Section 10.4 (excluding subsections (e) and (g) which are governed by Section 3.2), will survive the Closing until Final Proration Date, and in the event any items subject to proration hereunder are discovered prior to Final Proration Date, the same shall be promptly prorated by the parties in accordance with the terms of this Section 10.4.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Buyer. Rents Purchaser all Rentals, if any, received by Seller after Closing and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents properly attributable to periods any period following the Closing Time. “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include such Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to the landlord under the Tenant Lease or from other occupants or users of the Property, excluding specific tenant xxxxxxxx which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Close Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. For a period of Escrow six (6) months after Closing, Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser will not be required to expend any funds or incur any monetary obligations with respect to such efforts, and which are collected shall have no liability for the failure to collect any such amounts and will not be required to conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purposeTenants of the Property. Seller shall have the right to pursue Delinquent Rentals after Closing. With respect to any Tenant for delinquent rentDelinquent Rentals received by Purchaser within one (1) year after Closing (the “Delinquent Rental Proration Period”), but Purchaser shall not (a) cause Tenant pay to be delinquent for their current Seller any rent or become financially unstable or (b) have payment actually collected during the right Delinquent Rental Proration Period properly attributable to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrowthe Closing Time. All sums collected by Purchaser during the Delinquent Rental Proration Period, the recipient shall promptly deliver a copy of from such tax xxxx Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the other party, and not later than ten (10) days period prior to the delinquency date shown on such tax xxxx Buyer Closing Time and Seller shall deliver to the taxing authority their respective shares tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, all of such tax xxxx, prorated as of Close of Escrow. All prorations which shall be based on a 360-day year.
6.7.2. All leasing commissions owing payable to and tenant improvements with respect belong to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such Tenant to Purchaser (including Delinquent Rentals attributable to the period after the Closing Time), then any collection costs of Purchaser related to such Tenant, and then to prior approval of said Leases as herein provided delinquencies owed by Buyer pursuant Tenant to Paragraph 7.3.
6.7.3Seller. Seller agrees shall be entitled to indemnify institute legal actions to pursue Delinquent Rental after Closing, but in no event shall Seller be permitted to institute eviction proceedings against any Tenant or to levy against or seize any personal property of any Tenant located on or in the Real Property or to garnish or attach any rentals due under any Tenant Lease. Any sums collected by Purchaser and hold Buyer harmless from any and all liabilities, claims, demands, suitsdue Seller will be promptly remitted to Seller, and judgments, of any kind or nature, including court costs sums collected by Seller and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related due Purchaser will be promptly remitted to the PropertyPurchaser.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Prorations. 6.7.1Rents for the month of the Closing (exclusive of delinquent rents, but including prepaid rents); any previously paid signing bonus or similar payment relating to any laundry room, cable, telephone or similar agreement in effect as of the Closing, refundable security deposits with interest if required by local law (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); refundable and non-refundable pet and cleaning fees and deposits, water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes (as provided for in the next following sentence); and other similar items shall be adjusted ratably as of 11:59 P.M. on the Closing Date ("Proration Date"), and credited or debited to the balance of the cash due at Closing. Real property taxes, personal property taxes, assessments, rents, and CAM expenses taxes shall be prorated through Escrow between Buyer and Seller as based on the following information in the following circumstances: (i) if the current tax bxxx is available, real property taxes shall be prorated based on that tax bxxx; (ii) if the tax bxxx for the current tax year is not available, real property taxes shall be prorated based on an assessed valuation for the Property of Close $16,400,900 multiplied by a tax rate equal to 102% of Escrowthe tax rate for the prior tax year multiplied by the equalization factor for the prior tax year, if applicable. If the amount of any of the items to be prorated is not then ascertainable, the adjustment thereof shall be on the basis of the most recent ascertainable data. All security deposits shall prorations will be paid over final except as to BuyerDelinquent Rents referred to in 12B below, and errors in calculation on the closing statement. Rents and CAM expenses shall be approved by Buyer prior to Close If special assessments have been levied against the Property for completed improvements, then the amount of Escrow. Any delinquent rents attributable to periods any installments which are due prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, Closing Date shall be paid by the Seller, ; and Seller the amount of installments which are due after the Closing Date shall indemnify and hold Buyer harmless for lease commission claims brought against be paid by the Real Property arising therefromPurchaser. All leasing commissions and tenant improvement costs assessments for new Leases executed after the date of this Agreement incomplete improvements shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided paid by Buyer pursuant to Paragraph 7.3Purchaser.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Sale Agreement (Balcor Realty Investors 86 Series I)
Prorations. 6.7.1. Real property taxes(a) Rents, personal property taxesincluding, assessmentswithout limitation, percentage rents, if any, and CAM any additional charges and expenses payable under tenant leases, all as and when actually collected (whether such collection occurs prior to, on or after the Closing Date); real property taxes and assessments; water, sewer and utility charges; amounts payable under any service contracts; annual permits and/or inspection fees (calculated on the basis of the period covered); and any other expenses of the operation and maintenance of the Property (including, without limitation, expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the unamortized portion thereof), shall all be prorated as of 12:01 a.m. on the date the Deeds are recorded on the basis of a 365-day year. Seller shall receive a credit at Closing for the tenant improvements and leasing commissions described in Section 7.2. Any sums collected by Buyer from tenants after the Closing shall be prorated through Escrow between promptly paid to current rents and then to Seller to the extent of any remaining rents and other sums which were delinquent at Closing. Buyer and shall use reasonable efforts to collect such delinquent rents but shall have no obligation to commence a legal proceeding to collect such sums. If Buyer has not been able to collect any delinquent rents within ninety (90) days after the Closing, Seller as may bring legal actions to collect such rents, provided Seller shall have no right to terminate any tenant's lease. The amount of Close of Escrow. All any security deposits under tenant leases shall be paid over credited against the Purchase Price. Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to Buyerthe Property. Rents and CAM expenses Seller shall be approved by Buyer prior use reasonable efforts to Close of Escrow. Any delinquent rents attributable to periods obtain a utility reading immediately prior to the Close Closing Date. Buyer shall cause all utilities to be transferred into Buyer's name and account at the time of Escrow Closing. Seller and which are collected by Buyer or Seller hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, then the same shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have calculated as soon as reasonably practicable after the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have Closing Date and either party owing the right to seek eviction other party a sum of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be money based on the latest available tax xxxx. If after Close of Escrow either party receives any further such subsequent proration(s) or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient credits shall promptly deliver a copy of such tax xxxx pay said sum to the other party.
(b) For the properties located in Arizona, Seller shall pay for the premium for a standard coverage title policy. Buyer shall pay for (i) the additional premium for extended coverage and (ii) the cost of all endorsements. The escrow fees and recording costs shall be equally borne by both Buyer and Seller. For the property located in New Mexico, Seller shall pay for the title insurance policy. Buyer shall pay for (i) the cost of all endorsements and the costs of deleting the standard preprinted exceptions, (ii) all recording costs and (iii) the environmental audit and any other inspections. The escrow fees shall be equally borne by both Buyer and Seller. For the property located in Texas, Seller shall pay for (i) the title insurance premium, and not later than ten (10ii) days prior to the delinquency date shown on such tax xxxx cost of recording the deed. Buyer shall pay for the cost of all endorsements. The escrow fees shall be equally borne by both Buyer and Seller. For the properties located in Colorado, Buyer shall pay for (i) all recording costs, (ii) the documentary fees and (iii) the costs of all endorsements and extended title coverage. Seller shall deliver to pay for the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowpremium for basic title coverage. The escrow fees shall be equally borne by both Buyer and Seller. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements other costs associated with respect to the Real Property entered into prior to execution closing of the Agreement including, but not limited to, commissions for lease renewals and expansion options, transaction contemplated herein shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against in accordance with the Real local custom of the county in which the Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date is located.
(c) The provisions of this Agreement Section 8.5 shall be prorated between Buyer and Seller as their respective periods of ownership bears to survive the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Closing.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (American Industrial Properties Reit Inc)
Prorations. 6.7.1. (a) At the Closing, all Taxes related to the Owned Real property taxesProperty (and the Leased Real Property to the extent such Taxes are the responsibility of the tenant under the relevant Lease) (“Real Estate Taxes”) shall be pro rated as follows: (i) with respect to Real Property located in Wisconsin, personal property taxeson a calendar year basis, assessmentsas of the Closing Date; and (ii) with respect to Real Property located in Iowa, rents(A) Seller shall be responsible for the Real Estate Taxes billed in (or around) September 2009 and all prior Tax bills, and CAM expenses (B) the Real Estate Taxes billed in (or around) March 2010 shall be prorated through Escrow and adjusted between Buyer and the parties, based upon their respective ownership during the first six (6) months of 2009; and
(b) Seller as of Close of Escrow. All security deposits shall be paid over responsible for all special assessment installments related to Buyer. Rents the Owned Real Property (and CAM expenses shall be approved by Buyer prior the Leased Real Property to Close the extent such special assessment installments are the responsibility of Escrow. Any delinquent rents attributable to periods the tenant under the relevant Lease), which are billed (even if not yet due) on or prior to the Close Closing Date, and Buyer shall pay all special assessment installments related to the Owned Real Property (and the Leased Real Property to the extent such special assessment installments are the responsibility of Escrow and the tenant under the relevant Lease) first billed after the Closing Date.
(c) Personal property Taxes allocable to the personal property to be purchased under this Agreement which are collected by Buyer billed or Seller are to be billed in 2009 shall be retained by or paid prorated and adjusted between the parties, on a calendar year basis, as of the Closing Date.
(d) All rent payments, common area maintenance (CAM) charges, utility bills and other similar charges related to Seller; provided, however, that any amounts collected by Buyer or Seller the Acquired Real Property shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day yearthe Closing Date.
6.7.2. (e) All leasing commissions owing payroll Taxes and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way other similar Liabilities related to the PropertyRepresentatives of the Company Group shall also be prorated as of the Closing.
6.7.4. Buyer agrees (f) With respect to indemnify any items to be prorated, including, without limitation, Taxes, that have not been billed as of the Closing, agreed upon estimates shall be used in prorations, and hold such estimates shall be deemed to be conclusive.
(g) Notwithstanding any other provisions hereof, all amounts that are the responsibility of, or otherwise allocated to, Seller harmless under this Section 2.13 shall reduce the Purchase Price at Closing either directly or as a reduction in the calculation of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the PropertyNet Equity Amount.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes5.2.1 All revenues, personal property taxesincluding without limitation, assessmentsrentals, rentsprepaid rentals and prepaid payments (collectively, and CAM expenses "Rent"), shall be prorated through Escrow between on the basis that Buyer shall receive a credit for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing and for all security deposits held by Seller (including interest thereon, as required by law). Seller shall not receive a credit for any Rent Seller has not received as of Close of Escrow. All security deposits shall be paid over the Closing which is allocable to Buyer. Rents and CAM expenses shall be approved by Buyer the period prior to Close of Escrowthe Closing. Any delinquent rents attributable If, after Closing, Buyer collects any Rent applicable to periods prior to Closing, such Rent shall first be applied to Rent due for the Close of Escrow current period, if any, and which are collected the balance shall be promptly paid by Buyer or to Seller. If, after Closing, Seller collects any Rent applicable to rental periods after the Closing, Seller shall be retained by or paid promptly pay the same to Seller; providedBuyer. For such purposes, however, that any amounts collected by Buyer or Seller the period for which Rent is applicable shall be first applied to any rents then due to Buyer andthe one designated in writing by the person paying such Rent or, if collected by Sellerthere is no such designation, remitted the Rent shall be applied first to Buyer Rent due for such purpose. Seller shall have the right to pursue any Tenant for delinquent rentcurrent period, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have if any, with the right to seek eviction balance applied in the inverse order of the Tenant by unlawful detainer or Rent payments due from such Tenant.
5.2.2 All expenses, including without limitation, utilities and all other means. Tax and assessment prorations expenses to operate the Property shall be based prorated as of the Closing.
5.2.3 Real estate taxes shall be prorated at the Closing on the latest available basis of 100% of the most recent tax xxxxbills for the Property. If after Close Taxes will then be reprorated upon receipt of Escrow either actual bills for the applicable periods and the responsible party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, will promptly pay the recipient shall promptly deliver a copy of such tax xxxx difference to the other party. This provision will survive Closing.
5.2.4 Unless the Existing Financing is paid as provided in Section 3.7, an amount equal to payments of interest and deposits due under the Existing Financing, including without limitation, the repair escrow, the replacement reserve escrow fund, the real estate tax escrow, the hazard insurance escrow, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion optionsmortgage insurance escrow, shall be paid by Seller, and to Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3at Closing.
6.7.3. 5.2.5 With respect to any of Seller's employees that Buyer chooses to hire, Seller agrees to indemnify and hold Buyer harmless from pay those employees for any and all liabilitiesaccrued vacation or sick time they have earned prior to Closing.
5.2.6 All prorations under this SECTION 5.2 shall be adjusted, claims, demands, suitsif necessary, and judgments, of any kind or nature, including court costs completed after the Closing as soon as final information becomes available. Seller and reasonable attorney fees Buyer agree to cooperate and use their best efforts to complete such prorations no later than sixty (60) days (except those items which under with respect to real estate taxes) after the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertyClosing Date.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Home Properties of New York Inc)
Prorations. 6.7.115.1 Water and other utility charges due for the period prior to 12:01 a.m. on the Closing Date ("Proration Date") shall be paid by Seller. Real property taxes, personal property taxes, assessments, rents, and CAM expenses Regular ad valorem real estate taxes shall be prorated through Escrow between Buyer as of the Proration Date. Real Estate tax prorations shall be based on the maximum discounted rate available at Closing. Prior to Closing, Purchaser and Seller as shall notify all utilities providing service to the Property of Close of Escrow. All security deposits the prospective change in ownership and that all bills for the period from and after the Proration Date shall be paid over by Purchaser, with no interruption in service. All utility deposits, if any, may be withdrawn by and refunded to BuyerSeller and Purchaser shall make its own replacement deposits for utilities as may be required by the respective utilities involved. Rents and CAM expenses Assessments, excluding regular ad valorem real estate taxes, which are due prior to the Closing Date shall be approved paid by Buyer Seller. Assessments, excluding regular ad valorem real estate taxes, which are due subsequent to the Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. If any ongoing real estate tax contest has not been finalized as of the Closing Date, Purchaser and Seller agree that the tax bill existing prior to Close the contexx, shall be the most recent data for the tax year being contested and (i) Purchaser agrees to re-prorate such amount as it relates to the real estate tax proration for the current tax year to the extent such tax contest is successful. All other prorations will be final except as to rent reconciliations referred to in Paragraphs 15.2 and 15.3 below and as provided in Paragraph 15.4.
15.2 All base rent, percentage rent and other common area maintenance, tax and insurance charges actually paid by tenants under the Leases and all other items of Escrowincome actually received from the operation of the Property (all such charges other than base rent, "Additional Rent") shall be prorated as of the Proration Date. Any delinquent rents Purchaser shall receive a credit at Closing for all prepaid rent. To the extent the Leases provide for the adjustment of previously paid estimates of Additional Rent on a date after the Proration Date, Seller shall be entitled to receive, or shall be responsible to pay, as the case may be, its pro rata share of any such adjusted amounts which are applicable to periods ending prior to the Proration Date. Seller agrees that Seller shall promptly remit to Purchaser any rental or other payments that Seller, or any of its affiliates or agents, may receive post-Closing, except that Seller need not remit payments attributable to periods prior to the Close Proration Date if the tenant making such payment to Seller is current in all payments due to Purchaser for periods after the Proration Date. Purchaser shall deliver to each tenant of Escrow the Property (with a copy of each to Seller) a final reconciliation of Additional Rent due for calendar year 1996 on or before March 1, 1996. Purchaser shall use reasonable efforts (without any obligation to terminate leases or initiate lawsuits) to collect such Additional Rent from such tenants. On May 1, 1996, Purchaser shall provide Seller with a reconciliation of the amount of all Additional Rent collected from or refunded to tenants for calendar year 1996, and which are collected by Buyer or Purchaser and Seller shall be retained by or paid reprorate such Additional Rent as of the Proration Date, within 10 days after Purchaser's delivery to Seller; providedSeller of such reconciliation. Notwithstanding anything to the contrary herein, however, that any amounts collected by Buyer or Seller the provisions of this Paragraph shall survive the Closing.
15.3 There shall be first applied no credit to any rents then due to Buyer and, if collected by Seller, remitted to Buyer Seller for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction other amounts delinquent as of the Tenant Closing Date. All basic rent paid following the Closing Date by unlawful detainer or other means. Tax and assessment prorations shall be based on any tenant of the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a Lease for basic rent for any period prior to Close the Proration Date in an amount greater than the amount of Escrow, all current basic rent owed by said tenant to Purchaser for periods on or after the recipient Closing Date shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its reasonable, good faith efforts, at no additional cost or expense to Purchaser, and without any obligation to terminate leases or initiate lawsuits, to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 180 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 150 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Purchaser shall provide Seller with any information reasonably necessary to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. This Paragraph 15.3 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
15.4 All refunds for time periods prior to the delinquency date shown on Proration Date in connection with any ongoing real estate tax protests for the Property initiated by Seller prior to the Closing shall remain the property of Seller (except to the extent required to be refunded to tenants under such tenants' leases) and are not being assigned by Seller to Purchaser pursuant to this Agreement. In the event any such refunds are paid to Purchaser, Purchaser agrees to promptly remit all such sums to Seller subject to the rights, if any, of any existing tenant of the Real Property to receive any pro rata share of such refund under such tenant's lease. Purchaser agrees, at no cost, expense, liability or potential liability to Purchaser, to execute any documents reasonably requested by Seller in connection with such tax xxxx Buyer and Seller shall deliver protests.
15.5 In addition to the taxing authority their respective shares foregoing prorations and credits, Landlord shall provide Purchaser at Closing with a credit of such tax xxxx, prorated $139,192.75 (calculated as of Close of Escrow. All prorations shall follows) in connection with certain tenant improvement costs to be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements assumed by Purchaser with respect to the Real Property entered into prior Lease with EBP Healthplans, Inc. ("EBP") and the Lease with Paxson Broadcasting of Orlando ("Xxxxxn"): Paxson tenant imxxxxxxent allowaxxxx assumed by Purchaser: 2nd Amendment $ 45,018.75 3rd Amendment 177,186.00 Subtotal $222,204.75 Payment made by Seller ($2,100.00) Purchaser's agreed share of Paxson improvement allowance ($80,136.00) Purchaser credit to execution of the Agreement including, but not limited to, commissions Seller for lease renewals and expansion options, shall be leasing commission paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and Paxson amendment ($30,000.00) Outstanding EBP tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears balance under August 2, 1994 Lease $ 34,224.00 ----------- Net closing credit to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.Purchaser $139,192.75 ===========
Appears in 1 contract
Samples: Agreement of Sale (Balcor Equity Pension Investors I)
Prorations. 6.7.15.2.1 Rentals from Leases (including fixed monthly rentals and other periodic rentals, additional rentals, percentage rentals, operating cost pass-throughs and other sums and charges payable by the tenants), prepaid rentals and prepaid payments (collectively, “Rent”) shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all security deposits actually held by Seller and for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing. Seller shall not receive a credit for any Rent Seller has not received as of (the Closing that is allocable to the period prior to the Closing. If Buyer shall collect any such Rent (including without limitation percentage rent) after the Closing allocable to the period prior to the Closing, Buyer shall promptly pay the same to Seller, after application of the same to any rent due from the applicable Tenant after the Closing.
5.2.2 Real estate taxes shall be prorated as of the Closing on the basis of the most recent assessed valuation of and rates and multiplier applicable to the Property. If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall make any necessary adjustment after Closing by cash payment upon demand to the party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which are allocable to the period after the Closing).
5.2.3 Seller shall endeavor to have all of its utility accounts with respect to the Property closed out effective as of the Closing Date; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs).
5.2.4 Common area and maintenance charges, property taxes, personal property taxesinsurance and other operating cost pass-throughs payable by Tenants which accrue as of the Closing Date, assessmentsbut which are not then due and payable (collectively, rentsthe “Operating Expenses”), shall not be prorated, except as herein provided. Buyer shall receive and CAM expenses shall be prorated through Escrow between Buyer retain any Operating Expenses paid by Tenants on or after the Closing Date and Seller as of Close of Escrow. All security deposits shall be receive and retain any Operating Expenses paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods Tenants prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to SellerClosing Date; provided, however, that any amounts collected by Buyer monthly or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent periodic deposits or become financially unstable or (b) have the right to seek eviction payments of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx estimated Operating Expenses with respect to the other party, and not later than ten (10) days month in which the Closing occurs received by Seller prior to the delinquency date shown Closing Date or by Buyer on such tax xxxx or after the Closing Date shall be prorated as of the Closing Date. Buyer and Seller shall deliver prorate at Closing, actual Operating Expenses collected by Seller from Tenants prior to Closing with actual Operating Expenses paid by Seller with respect to such period, so that if there are any rebates owing to Tenants for the taxing authority their respective shares period of Seller’s ownership, Seller shall pay Buyer the amount of such tax xxxxrebates at Closing, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to the Real Property entered into prior period of Seller’s ownership, Buyer shall promptly pay Seller the amount so owed to execution the landlord upon Buyer’s receipt of the same (and Buyer shall exert diligent good faith efforts to collect the same but shall not required to terminate any Lease or evict any Tenant in connection therewith). Any prorations under this Agreement including, but not limited to, commissions for lease renewals and expansion options, based upon monthly amounts shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of based upon a thirty (30) day month; any prorations under this Agreement based upon annual amounts shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3based upon a 366 day year.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Prorations. 6.7.1. Real property taxesProrations will be made with respect to each Property (including each Master LLC Property) and the Assumed Liabilities as provided in Sections 2.4(a)-(i) without duplication in each case.
(a) (i) Seller and Purchaser agree to adjust, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be 11:59 p.m. on the day immediately preceding the applicable Closing Date (the "PRORATION TIME"), the following (collectively, the "PRORATION ITEMS"):
(A) Real Estate Taxes as provided in Section 2.4(i), except those paid over to Buyer. Rents and CAM expenses shall be approved directly by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior Tenants to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; applicable taxing authority, provided, however, that any amounts collected by Buyer or in the event such Tenants fail to make the applicable payments, Seller shall be first applied responsible for the unpaid Real Estate Taxes which relate to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not period on and before the Proration Time and Purchaser (aor its Affiliate) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on responsible for the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx unpaid Real Estate Taxes which relate to the other partyperiod after the Proration Time;
(B) Water charges, costs and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements bills paid or payable with respect to the Real Property entered into prior Properties, except those paid directly by Tenants to execution the applicable utility provider, provided, however, in the event such Tenants fail to make the applicable payments, Seller shall be responsible for the unpaid water charges, costs and bills which relate to the period on and before the Proration Time and Purchaser (or its Affiliate) shall be responsible for the unpaid water charges, costs and bills which relate to the period after the Proration Time;
(C) Sewer charges, costs and bills paid or payable with respect to the Properties, except those paid directly by Tenants to the applicable utility provider, provided, however, in the event such Tenants fail to make the applicable payments, Seller shall be responsible for the unpaid sewer charges, costs and bills which relate to the period on and before the Proration Time and Purchaser (or its Affiliate) shall be responsible for the unpaid sewer charges, costs and bills which relate to the period after the Proration Time;
(D) Accrued interest payable under Assumed Indebtedness as provided in Section 2.4(h) but not late fees and other costs, charges, and past due interest owing to the lender before the Proration Time, which will be Seller's sole expense;
(E) Amounts, if any, payable or cash received by the owner of the Agreement includingProperty under the REA Agreements, but not limited toincluding prepaid amounts and unpaid amounts;
(F) Annual permit, commissions license and inspection fees, if any, on the basis of the fiscal year for lease renewals which levied;
(G) Charges for fuel oil and expansion optionsliquid propane gas, if any, at the cost per gallon or cubic foot most recently charged to the owner of the Property, based on the supplier's measurements thereof, plus sales taxes thereon to the extent applicable;
(H) Rentals as provided in Section 2.4(b) (other than payments for Operating Expenses which shall be paid apportioned as provided in Section 2.4(c)), including prepaid Rentals;
(I) Amounts payable by or to Seller or the owner of the Property under a management, development and/or other Contract which is part of the Assumed Liabilities relating to the Property (other than a Contract providing for the payment of leasing commissions or brokerage fees, which shall be Seller's sole responsibility);
(J) Cash reserves and escrow deposits for real property taxes and assessments, insurance premiums and other items, other than the reserves listed on SCHEDULE 2.4(a)(i)(j) for which Seller shall indemnify not receive a credit towards the Purchase Price (provided, however, in the event that Seller corrects the condition for which the applicable reserve listed on SCHEDULE 2.4(a)(i)(j) was created, then such reserves may be released to Seller when (and hold Buyer harmless for lease commission claims brought against if) the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date applicable lender is willing to release such reserves as a result of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term (i) Seller's correction of the new Lease subjectcondition or (ii) upon repayment or extension of the loan), in all eventsmade with, to or held by, the prior approval lender under any of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilitiesthe Assumed Indebtedness, claimsnet, demands, suits, and judgmentsif appropriate, of any kind allocation to the same party of the underlying expense for which the reserve is held, together with so much of any interest earned on the reserve or natureescrow deposit as is properly attributable to the allocated amount thereof, provided however, adjustments for casualty or condemnation proceeds held by the lender under any of the Assumed Indebtedness will be made in accordance with Article VIII;
(K) Rentals and other amounts payable to third parties by the owner of the Property under the Ground Leases and/or the Subleases, including court costs contingent and/or participating rents;
(L) Rentals and reasonable attorney fees other amounts payable to third parties under Subleases;
(except those items which M) Prepaid expenses as provided in Section 2.4(f);
(N) Ground Lease deposits as provided in Section 2.4(g);
(O) Tenant Security Deposits as provided in Section 2.7;
(P) Personal property taxes and assessments that have been levied or assessed with respect to any Acquired Asset, whether or not due and payable, and whether paid or unpaid;
(Q) Amounts determinable that are payable under the terms Assumed Liabilities;
(R) Utility Deposits identified on SCHEDULE 2.4(a)(i)(R) for which Seller shall receive a credit at Closing; and
(S) Except as set forth below, all other items customarily apportioned in connection with the transfer of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Propertysimilar properties similarly located.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Developers Diversified Realty Corp)
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, security deposits, and CAM cam expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All Rents, security deposits shall be paid over to Buyer. Rents and CAM cam expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause a Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other meansunstable. Tax and assessment prorations shall be based on the latest available tax xxxx. If If, after Close of Escrow either party Escrow, Buyer receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, or Seller receives any further or supplemental tax xxxx relating to any period after Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property transactions entered into prior to execution of the this Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease Lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases and for Lease renewals and expansion options executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears bear to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless of and from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney attorneys' fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close date of Escrow closing and which are in any way related to the Property, and all expenses related thereto, including but not limited to court costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys attorneys' fees, brought by third parties and based on events occurring subsequent to the Close date of Escrow closing and which are in any way related to the Property, and all expenses related thereto, including, but not limited to, court costs and attorneys' fees.
Appears in 1 contract
Prorations. 6.7.1. Real property taxesExcept as may be otherwise expressly provided herein, personal property taxesall revenues, assessments, rents, income and CAM expenses shall be prorated through Escrow between Buyer (including utility expenses and Seller as credit card adjustments) of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior the Property with respect to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close 12:01 a.m. on the Closing Date (but only including 50% of Escrowthat night’s room revenues) shall be for the account of Seller; and 50% of that night’s room revenues plus all revenues, income and expenses of the recipient shall promptly deliver a copy of such tax xxxx Property with respect to the other party, period after 12:01 a.m. on the Closing Date (including all deposits or advances related to advance bookings or reservations exclusive of interest earned thereon through the Closing Date) for periods from and not later than ten (10after the Closing Date) days prior to shall be for the delinquency date shown on such tax xxxx Buyer and account of Buyer. Seller shall deliver to Buyer the taxing authority their respective shares cash on hand at the Hotel on the Closing Date (except that cash which constitutes Seller’s 50% share of such tax xxxx, the room revenues). Only real property taxes and assessments and personal property taxes will be prorated as inside of Close of Escrow. All Escrow on the settlement statement; all other prorations shall be based made outside of Escrow, in accordance with local custom in Highlands Ranch County, Colorado, as reflected in a separately executed proration statement, shall be allocated, reconciled and paid by check or wire transfer directly between the parties as soon as practicable on a 360-day year.
6.7.2. All leasing commissions owing or after the Closing Date and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement includingmay include, but not be limited to, commissions income items such as revenues (prepaid or otherwise) from room, beverage, telephone and other similar charges, and expense (prepaid or otherwise) items such as utilities and amounts under Operating Agreements. If real property taxes and assessments to be assumed by Buyer are unavailable on the Closing Date, a re-adjustment of such taxes and assessments assumed by Buyer shall be made within thirty (30) days after the Closing or if longer, as soon as such taxes and assessments and charges or expenses assumed by Buyer are available. Should the sale occur after June 30th, and the property be re-assessed due to the sale contemplated herein for lease renewals the tax year in which Closing occurs, a re-adjustment shall occur, and expansion optionsthe figures from the re-assessment shall form the basis for the pro-ration amount. Notwithstanding the immediately preceding sentence, if a re-assessment occurs for future tax periods (i.e., for any period from and after Closing), no re-adjustment shall occur. The parties agree to cooperate in good faith in effecting such a final reconciliation and each party shall promptly pay (or reimburse the other party for) any expense item that is chargeable to the former party and shall promptly remit any income item to the other party if entitled thereto. In the event any adjustments pursuant to this Section 5.3 are, subsequent to Closing, found to be erroneous, then either party hereto is entitled to additional monies and shall invoice the other party for such additional amounts as may be owing, and such amount shall be paid promptly by Seller, and Seller the other party upon receipt of the invoice. Such invoice shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrombe accompanied by reasonable substantiating evidence. All leasing commissions and tenant improvement costs for new Leases executed after the date The provisions of this Agreement Section 5.3 shall be prorated between Buyer and Seller as their respective periods of ownership bears to survive the primary term delivery of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apple REIT Seven, Inc.)
Prorations. 6.7.1. Real 6.6.1 Except as provided in this Section 6.6.1, real property taxestaxes and assessments, personal property taxestaxes (if any), assessmentsrent (which term, rentsas used in this Agreement, includes, without limitation, operating expenses and common area maintenance charges, insurance, utilities, real estate tax and other assessment reimbursements, and CAM expenses parking fees) for the month in which Closing occurs and any rent prepaid under any Lease, and all other items of income and expense with respect to the Property, shall be prorated between Seller and Buyer through Escrow between the Closing Date, based upon a rent roll delivered by Seller to Buyer and the Title Company prior to the Closing Date. In the event Buyer has the right to be reimbursed by the tenants of the Property for real property taxes or other items customarily prorated upon sale and Seller has not previously collected monthly estimates for such amounts, then such items shall not be prorated at Closing. In addition to the Purchase Price, Buyer shall pay Seller an amount equal to any refundable deposits and/or bonds held by any utility, governmental agency or service contractor with respect to the Property, provided that such utility, agency or contractor is obligated to refund the deposit to Buyer, rather than to Seller, following the Closing. Any rent collected by Buyer after the Closing Date shall be applied first to pay any rent then due and owing for the calendar month in which the Closing occurs, next, to any period subsequent to the Closing Date, and then to pay any rent owing for any period prior to the month of the Closing. Buyer shall remit such amounts due Seller to Seller immediately upon receipt. Except as specified above, if either Buyer or Seller receives any revenues attributable to the period during which it is not the owner of the Property, said party shall promptly forward such amounts to the other party (if such revenues are only partially attributable to the period during which said party is not the owner of the Property, the amount paid to the other party shall be based upon proration as of the Closing Date as set forth above). Buyer shall use reasonable efforts, at no expense to Buyer, to collect and assist Seller in collecting any revenue which is owed to Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and Closing Date or which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then comes due to Buyer and, if collected by Seller, remitted to Buyer for such purposethereafter. Seller shall have the right to pursue xxx or otherwise attempt to collect the same from any Tenant for delinquent rent, but such tenant (which right shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have survive the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other partyClosing), and not later than ten (10) days prior Buyer agrees to cooperate with Seller in connection with such efforts by Seller. Buyer’s obligations under this Section 6.6.1 shall survive the delinquency date shown on such tax xxxx Closing and shall bind its successors in interest.
6.6.2 Buyer and Seller shall deliver cooperate to produce on or before the taxing authority their respective shares Closing Date a schedule of such tax xxxx, prorated prorations which is as of Close of Escrowcomplete and accurate as reasonably possible. All prorations which can be reasonably estimated as of the Closing Date shall be based made on a 360-day year.
6.7.2the Closing Date. All leasing commissions owing other prorations and tenant improvements with respect any adjustments to initial estimated prorations shall be made by Buyer and Seller within sixty (60) days following the Real Property entered into prior to execution of the Agreement includingClosing Date or such later time as may be required, but not limited tolater than December 31, commissions 2010, in the exercise of due diligence, to obtain the necessary information for lease renewals proration. Any net credit due one party from the other as a result of such post-closing prorations and expansion optionsadjustments shall be paid to the other in cash immediately upon the parties’ written agreement to a final schedule of post-closing adjustments and prorations.
6.6.3 Real estate taxes and personal property taxes on the Property shall be prorated based upon the payment period (i.e., calendar or other tax fiscal year) to which same are attributable with maximum discount taken, regardless of whether or not any such taxes are then due and payable or are a lien. Seller shall pay at or prior to Closing (or Buyer shall receive credit for) any unpaid taxes attributable to periods prior to the date of Closing (whether or not then due and payable or a lien as aforesaid). Seller shall receive credit for any previously paid or prepaid taxes attributable to periods from and after the date of Closing. In the event that as of the date of Closing the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, taking into account all applicable discounts for early payment, shall be used for purposes of the proration at Closing. If the proration at Closing is based on the taxes for the previous year as described above, the parties agree to re-prorate the applicable real estate taxes and personal property taxes for the year of Closing based on the actual real estate taxes and personal property taxes (with maximum discount) once the bills are available.
6.6.4 Certified liens levied by any governmental authority against the Property as of the Closing Date shall be paid by the Seller. Pending liens as of the Closing Date shall be assumed by the Buyer; provided, however, that if the improvement for which any such pending lien was levied was substantially completed as of the Closing Date, such pending lien shall be treated as a certified lien and paid by Seller. Notwithstanding the foregoing, if any assessment or lien is payable under the real estate tax xxxx(s) for the Property on an installment payment basis, the parties agree that Seller shall be responsible for payment of those installments which accrue prior to the year of Closing, Buyer shall be responsible for payment of those installments which accrue subsequent to the year of Closing, and the parties shall prorate the installment which is due for the year of the Closing.
6.6.5 Notwithstanding the terms of Section 6.6.1, common area maintenance expenses and charges under the Leases for the year of Closing, if any, shall be prorated as set forth in this Section 6.5. Seller shall indemnify be responsible for all common area maintenance expenses and hold charges incurred prior to Closing, and Buyer harmless shall be responsible for lease commission claims brought against the Real Property arising therefromsame subsequent to Closing. All leasing commissions common area maintenance expense payments made by each tenant and tenant improvement costs such charges paid under its Lease for new Leases executed after the date of this Agreement entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than sixty (60) days after Closing, Seller shall deliver to Buyer, with regard to each tenant required to pay common area maintenance expenses and charges (“CAM Charges”) under its Lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from January 1 of the year of Closing through the Closing Date, any CAM payments received by Seller relating to such tenant, and, as their respective periods applicable, either (i) a xxxx for the tenant’s prorata share of ownership bears CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM payment received by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant’s Lease, or (ii) a statement setting forth any amounts owed to the primary term tenant for such period with a payment equal to such amount to be provided by Seller to Buyer not later than thirty (30) days thereafter (the “Overpayment Amount”). Buyer shall, on or before March 31 of the new Lease subjectyear immediately following the Closing, incorporate any bills delivered by Seller into a single post-closing (as and when appropriate for annual reconciliation or other billing of CAM Charges for any tenant) xxxx for CAM Charges to such tenant, in which event such single xxxx, as and when paid, shall be apportioned between Seller and Buyer based on the ratio of pre- and post-Closing CAM expenses (taking into account any CAM payments retained by Seller at Closing). Upon Buyer’s receipt of any Overpayment Amount from Seller, Buyer shall promptly turn over the same to the tenant(s) entitled to such Overpayment Amount. Notwithstanding anything to the contrary set forth herein, Buyer agrees that (a) for the period from the date of Closing until the second (2nd) anniversary thereof, the rents payable under any renewal or extension of any Leases existing as of the Closing, which is not pursuant to an express renewal or extension right in the Lease, shall be at the then fair market value rent, and any increases in base/minimum annual rent shall not increase by more than three and one-half percent (3.50%) in any year (the “3.5% Cap”), unless Buyer can demonstrate to Seller, in Seller’s reasonable discretion, that such 3.50% Cap on annual increases is below the then fair market rent for the applicable leased space; provided, however, that the 3.5% Cap will not apply with respect to rent concessions as an inducement to entering into the renewal or extension of such Lease or rent which specifically represents amortization of a tenant improvement allowance under the renewal or extension of such Lease; and (b) in no event will the costs of repair and maintenance of those items listed on Schedule 6.6.5 be passed on or passed through to tenants under any Leases or New Leases (as defined below), and the respective Ground Leases shall provide for the applicable ground lessee thereunder to perform such repair and maintenance, as applicable, at the sole cost and expense of such ground lessee.
6.6.6 Buyer will receive at Closing a credit against the Purchase Price equal to all eventssecurity deposits actually held by Seller under the Leases.
6.6.7 For any new leases or extensions or amendments to any existing Leases or any Lease which is extended pursuant to any exercise by the tenant of an option in such Lease after September 30, 2009 (each of the foregoing being referred to as a “New Lease”), including, without limitation, those New Leases described on Schedule 6.6.7, at Closing Buyer shall reimburse Seller, in cash, for (1) all tenant improvement costs and expenses incurred by Seller for repairs, improvements, equipment, painting, decorating, partitioning, carpeting, and other work performed in the tenant’s space to satisfy a tenant’s requirements with respect to or in connection with any New Lease including, without limitation, any reimbursements paid to the tenant in connection with any such work performed by the tenant (collectively, the “TI Expenditures”), to the prior approval extent that such TI Expenditures have been paid by Seller as of said Leases the date of Closing, and (2) all leasing costs and expenses, including, without limitation, leasing or brokerage commissions payable to any person or entity, incurred by Seller in connection with a New Lease (collectively, the “Leasing Expenditures”), to the extent such Leasing Expenditures have been paid by Seller as herein provided of the date of Closing. With respect to Leasing Expenditures and TI Expenditures, Buyer shall assume liability for the same at Closing and shall indemnify the Released Parties (as defined herein) from and against any claims made in connection with Leasing Expenditures and TI Expenditures. Notwithstanding the foregoing, Seller agrees that Buyer will be entitled to a credit at Closing against the Leasing Expenditures and TI Expenditures due from Buyer to Seller in an amount equal to the applicable Leasing Expenditure or TI Expenditure, multiplied by Buyer pursuant to Paragraph 7.3a fraction, the numerator of which is the number of months under the applicable lease for the period from the date of the commencement of the term of such New Lease or the date of the commencement of the extension or amendment of such Lease (if an existing Lease) until the date of Closing, and the denominator of which is the total number of months in the term of such New Lease or extension or amendment of an existing Lease.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms 6.6.8 The provisions of this Agreement specifically become Section 6.6 shall survive the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertyClosing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Prorations. 6.7.1Seller represents and warrants that there are no rentals, revenues or income related to the Property. Real property taxes, personal The Title Company shall prorate all non-delinquent real property taxes, assessments, rentsimprovement bonds, water, sewer, and CAM utility charges, amounts payable under the Service Contracts, annual permits and/or inspection fees (calculated on the basis of the period covered), insurance premiums (as to those policies, if any, that Buyer determines will be continued after the Closing), and other expenses normal to the operation and maintenance of the Property on the basis of a 365-day year as of 12:01 a.m. on the Closing Date. All non-delinquent real estate taxes or assessments on the Property shall be prorated through Escrow between Buyer and based on the actual current tax bill, but if such tax bill xxx not yet been receixxx by Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods the Closing Date or if supplemental taxes are assessed after the Closing for the period prior to the Close of Escrow and which are collected Closing, the parties shall make any necessary adjustment after the Closing by Buyer or cash payment to the party entitled thereto so that Seller shall be retained by or paid have borne all taxes, including all supplemental taxes, allocable to Seller; providedthe period prior to the Closing and Buyer shall bear all taxes, howeverincluding all supplemental taxes, that any amounts collected by Buyer or Seller shall be first applied allocable to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purposethe period after the Closing. Seller shall endeavor to have the right to pursue any Tenant all meters for delinquent rentserving utilities, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions water, sewer, gas, and electricity read on the day before the Closing Date for lease renewals proration purposes. If any expenses attributable to the Property and expansion optionsallocable to the period prior to the Closing are discovered or billed after the Closing, the parties shall be paid make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Seller shall have borne all expenses allocable to the period prior to the Closing and Buyer shall bear all expenses allocable to the period from and after the Closing. Five (5) business days prior to the Closing, Escrow Agent shall deliver to each of the parties for their review and approval a preliminary closing statement (the "Preliminary Closing Statement") based on an expense statement prepared by Seller, approved by Buyer, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against delivered to Escrow Agent prior to said date, setting forth (i) the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears proration amounts allocable to the primary term each of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer parties pursuant to Paragraph 7.3this Section 10 and (ii) the Closing Expenses allocable to each of the parties pursuant to Section 10(h) hereof. Based on each of the party's comments, if any, regarding the Preliminary Closing Statement, Escrow Agent shall revise the Preliminary Closing Statement and deliver a final, signed version of a closing statement to each of the parties at the Closing (the "Closing Statement").
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Montgomery Realty Group Inc)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 5%; real and personal property taxes, assessments, rents; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited to the balance of Close of Escrowthe cash due at Closing. All security deposits Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the Closing Date by unlawful detainer or other means. Tax and assessment prorations shall be based on any tenant of the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for basic rent for any period prior to Close of Escrow, and including the recipient Closing Date shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at reasonable times and expansion optionsupon reasonable notice, shall be paid by of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromcost of performing Seller's audit. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale (Balcor Realty Investors 85 Series I)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses; real and personal property taxes, assessments, rents; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day prior to the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited against the balance of Close of Escrowthe cash due at Closing. All security deposits Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved on the basis of the most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below and except for real estate taxes which will be reprorated upon receipt of actual bills. If any unit has remained vacant for more than 9 days without being made "rent ready", Seller will give Purchaser a credit of $250 for such unit for cleaning, painting touch-up, carpet shampoo and minor appliance repair. If such a unit requires carpet replacement or other renovation not covered by Buyer prior the preceding sentence, Purchaser and Seller will agree on the amount of the credit to Close of EscrowPurchaser. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or If Seller receives a credit for a utility deposit, Seller shall be retained execute an assignment thereof substantially in the form attached as Exhibit N.
12.2. All monies received after Closing by or paid to Seller; provided, however, that Purchaser from any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction tenant of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for rent for any period prior to Close of Escrow, the recipient shall promptly deliver a copy Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of such tax xxxx monies to current rent shall be deemed a "Post-Closing Receipt", but only to the other party, and extent such pre-closing indebtedness has not later than been paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use good faith efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax xxxxthe Post-Closing Receipts reconciliation, prorated as Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Paragraph 12.2 of Close this Agreement shall survive the Closing and the delivery and recording of Escrowthe Deed.
12.3. All prorations At Closing, One Hundred Thousand and No/100 Dollars ($100,000.00) of the balance of the Purchase Price shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect deposited in escrow pursuant to the Real Property entered into prior to execution terms of the Escrow Agreement including, but and shall constitute the "Holdback Escrow Funds". Seller and Purchaser shall set forth the outstanding rents and all other monthly payments due and payable to Purchaser (i.e. those allocable to the period of ownership of the Property by Purchaser) under the Leases for the month in which the Closing occurs that have not limited to, commissions for lease renewals already been credited to Purchaser at Closing (the "Outstanding Rents Due") in a schedule to be created and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed agreed upon within three (3) business days after the date of this Agreement Closing (the "Closing Rent Schedule"). Upon Closing, Purchaser shall use its best efforts to collect the Outstanding Rents Due. Purchaser shall also use commercially reasonable efforts to collect all rents and other monthly fees due under the Leases (in accordance with the various terms of the Leases) for the month following the month in which the Closing occurs. On or before 5:01 p.m. Chicago time on July 31, 1997, Purchaser shall deliver to Escrow Agent and Seller a schedule (the "Final Closing Rent Schedule") that accurately shows: (a) the total rents and all other monthly payments due and payable under the Leases for the month following the month in which the Closing occurs (the "Second Month Outstanding Rents Due"); (b) all Second Month Outstanding Rents Due actually collected by Purchaser as of the date of the Final Closing Schedule (the "Second Month Rents Actually Collected"); and (c) the difference between the Second Month Outstanding Rents Due and the Second Month Rents Actually Collected (the "Second Month Deficiencies"). In addition to setting forth the Second Month Deficiencies, the Final Closing Rent Schedule shall also set forth the Outstanding Rents Due that have still not been collected by Purchaser, together with appropriate documentation supporting any such amounts. The sum of (a) the Outstanding Rents Due which are still outstanding at the time of the Final Closing Schedule and (b) the Second Month Deficiencies shall be prorated between Buyer and Seller as their respective periods of ownership bears referred to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.as
Appears in 1 contract
Prorations. 6.7.1. 7.1 Real property taxes, personal property taxes, assessments, rents, and CAM expenses taxes shall be prorated through Escrow between Buyer and Seller as of Close of EscrowClosing based upon a three hundred sixty-five (365) day year. At Closing, Purchaser shall be given a credit for all such taxes and assessments which occur prior to Closing but which are not yet due. All security deposits shall be paid over to Buyer. Rents payments and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to installments due through the Close of Escrow and which are collected by Buyer Closing Date on bonds, special taxes, or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, assessments shall be paid by Seller.
7.2 All rents and charges due under leases of the Property shall be prorated as of Closing based upon figures supplied to the Escrow Holder by Seller and reasonably approved by Purchaser. If, at Closing, there are any past due rents or charges owed by tenants with respect to periods prior thereto, Purchaser shall not pay to Seller, in addition to the Purchase Price, the amount of such delinquencies; but Purchaser shall thereafter account to Seller for any sums received from such tenants. If Seller receives any prepaid rents or other charges from tenants applicable to periods after Closing, then Purchaser shall be credited through escrow with such rents and charges or, if received after Closing, such amounts shall be paid promptly to Purchaser.
7.3 Purchaser shall be credited through escrow with the amount of any refundable or nonrefundable tenant security deposits and any other refundable or nonrefundable tenant deposits or fees previously received by Seller or on behalf of Seller that have not been, as of Closing, expended or applied to tenant obligations pursuant to the leases, including, without limitation, cleaning deposits. "Credit check" fees shall not be considered to be a tenant deposit or fee.
7.4 Water, electricity, gas, and other utility payments or charges shall not be adjusted through escrow if readings can be made at Closing by the utility companies. Purchaser agrees to open accounts with the respective utilities and to cooperate with Seller in requesting readings on Closing. In the event that appropriate readings cannot possibly be obtained as of Closing, then adjustments shall be made by Purchaser and Seller through escrow on the basis of estimates from the latest bills available.
7.5 All other expense and income associated with the Property shall be adjusted through escrow, based upon figures supplied by Seller and reasonably approved by Purchaser. Seller and Purchaser shall each provide preliminary figures to the other no later than five (5) days prior to Closing.
7.6 Seller shall assume and pay all debts, charges, claims, damages, and liabilities attributable to leases or the operation of the Property accruing and/or arising prior to Closing and shall hold Purchaser harmless therefrom and indemnify and defend against same, except liabilities expressly assumed in writing by Purchaser, including, without limitation, obligations of landlord under the tenant leases.
7.7 Purchaser shall assume and pay all debts, charges, claims, damages, and liabilities attributable to leases or the operation of the Property accruing and/or arising after Closing and shall hold Seller harmless therefrom and indemnify and defend against same, except liabilities expressly retained in writing by Seller, including, without limitation, obligations of landlord under the tenant leases.
7.8 Within ninety (90) days after Closing, Purchaser and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against reconcile the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date actual amount of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all eventsrevenues or liabilities upon receipt or payment thereof, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3extent those items were prorated or credited at Closing based upon estimates.
6.7.3. 7.9 To the extent in Seller's possession, Seller agrees shall furnish to indemnify Purchaser with the documents identified on Exhibit "B" and hold Buyer harmless from any in accordance with Section 5 above, a certified listing of all rental deposits and all liabilities, claims, demands, suits, and judgments, move-in fees of any kind or whatever nature, including court costs redecoration, cleaning, and reasonable attorney fees (except those items processing charges. All such deposits, fees, and move-in charges shall be transferred to Purchaser at Closing. Prior to Closing, Seller shall deliver to Purchaser the original of each written lease and other rental agreement and a written description of each oral lease or rental agreement which under affects the terms real estate or improvements, including all amendments and modifications thereof and options to renew or extend the term thereof.
7.10 Seller shall pay any real estate or personal property, transfer, excise, or sales taxes or any similar taxes due as a result of this Agreement specifically become the obligation sale of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.47.11 Mortgage and other reserves, if any, shall be assigned to Purchaser at Closing. Buyer agrees Purchaser shall not reimburse Seller for such reserves assigned to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the PropertyPurchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Maxus Realty Trust Inc)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges, if any; fuels; prepaid reasonable and customary operating expenses; real and personal property taxes, assessments, rents; and other similar items shall be adjusted ratably as of 11:59 p.m. on the day prior to the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited against the balance of Close of Escrowthe cash due at Closing. All security deposits Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved on the basis of the most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below and except for real estate taxes which will be reprorated upon receipt of actual bills. If any unit has remained vacant for more than 9 days without being made "rent ready", Seller will give Purchaser a credit of $250 for such unit for cleaning, painting touch-up, carpet shampoo and minor appliance repair. If such a unit requires carpet replacement or other renovation not covered by Buyer prior the preceding sentence, Purchaser and Seller will agree on the amount of the credit to Close of EscrowPurchaser. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or If Seller receives a credit for a utility deposit, Seller shall be retained execute an assignment thereof substantially in the form attached as Exhibit N.
12.2. All monies received after Closing by or paid to Seller; provided, however, that Purchaser from any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction tenant of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for rent for any period prior to Close of Escrow, the recipient shall promptly deliver a copy Closing Date will first be applied to rent or other charges currently due to Purchaser under the applicable lease. Any balance remaining after the application of such tax xxxx monies to current rent shall be deemed a "Post-Closing Receipt", but only to the other party, and extent such pre-closing indebtedness has not later than been paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use good faith efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares first 90 days after the Closing Date. Upon the delivery of such tax xxxxthe Post-Closing Receipts reconciliation, prorated Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Paragraph 12.2 of this Agreement shall survive the Closing and the delivery and recording of the Deed.
12.3. At Closing, One Hundred Thousand and No/100 Dollars ($100,000.00) of the balance of the Purchase Price shall be deposited in escrow pursuant to the terms of the Escrow Agreement and shall constitute the "Holdback Escrow Funds". Seller and Purchaser shall set forth the outstanding rents and all other monthly payments due and payable to Purchaser (i.e. those allocable to the period of ownership of the Property by Purchaser) under the Leases for the month in which the Closing occurs that have not already been credited to Purchaser at Closing (the "Outstanding Rents Due") in a schedule to be created and agreed upon within three (3) business days after the date of Closing (the "Closing Rent Schedule"). Upon Closing, Purchaser shall use its best efforts to collect the Outstanding Rents Due. Purchaser shall also use commercially reasonable efforts to collect all rents and other monthly fees due under the Leases (in accordance with the various terms of the Leases) for the month following the month in which the Closing occurs. On or before 5:01 p.m. Chicago time on July 31, 1997, Purchaser shall deliver to Escrow Agent and Seller a schedule (the "Final Closing Rent Schedule") that accurately shows: (a) the total rents and all other monthly payments due and payable under the Leases for the month following the month in which the Closing occurs (the "Second Month Outstanding Rents Due"); (b) all Second Month Outstanding Rents Due actually collected by Purchaser as of Close the date of Escrowthe Final Closing Schedule (the "Second Month Rents Actually Collected"); and (c) the difference between the Second Month Outstanding Rents Due and the Second Month Rents Actually Collected (the "Second Month Deficiencies"). All prorations In addition to setting forth the Second Month Deficiencies, the Final Closing Rent Schedule shall also set forth the Outstanding Rents Due that have still not been collected by Purchaser, together with appropriate documentation supporting any such amounts. The sum of (a) the Outstanding Rents Due which are still outstanding at the time of the Final Closing Schedule and (b) the Second Month Deficiencies shall be based on a 360-day year.
6.7.2referred to as the "Rent Deficiency Sum". All leasing commissions This Rent Deficiency Sum will represent Purchaser's opinion of the amount owing to it under the terms of this Paragraph 12.3 and tenant improvements with respect the Final Closing Rent Schedule shall specifically instruct the Escrow Agent to disburse an amount equal to the Real Property entered into prior Rent Deficiency Sum to execution Purchaser. Seller shall have ten (10) days following receipt of the Agreement Final Closing Rent Schedule to give Purchaser and Escrow Agent written notice of any objection to the Final Closing Rent Schedule. If Seller delivers a timely notice of objection then Seller and Purchaser shall work together in good faith to agree upon the Final Closing Rent Schedule (including, but not limited to, commissions for lease renewals the Rent Deficiency Sum) , at which time Seller and expansion options, Purchaser shall xxxxx x xxxnt letter of instruction to Escrow Agent setting forth the terms of the escrow disbursement. If Seller does not reply to the Final Closing Rent Schedule within ten (10) days then the Rent Deficiency Sum shall be paid by Seller, distributed to Purchaser and Seller the remaining Holdback Escrow Funds shall indemnify and hold Buyer harmless for lease commission claims brought against be distrubuted in accordance with the Real Property arising therefromterms of the Escrow Agreement. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.3 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to Deed.
12.4. If at any time within 120 days of the prior approval closing of said Leases as herein provided by Buyer the escrow account Purchaser receives any monies for which it has previously received payment from Seller pursuant to Paragraph 7.3.
6.7.312.3 above ("Post-Escrow Receipts"), then Purchaser shall be obligated to deliver any such Post-Escrow Receipts to Seller (along with a statement describing the same) within ten (10) days of Purchaser's receipt of the same. Seller agrees shall retain the right to indemnify and hold Buyer harmless conduct an audit of Purchaser's financial records, at no cost to Purchaser, for a period of five (5) months from any and all liabilities, claims, demands, suitsthe close of escrow in order to verify, and judgmentsonly to the extent necessary to so verify, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms information discussed in this Paragraph 12. Paragraph 12.4 of this Agreement specifically become shall survive the obligation Closing and the delivery and recording of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertyDeed.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Sale Agreement (Balcor Realty Investors 84 Series Ii)
Prorations. 6.7.1. Real All income (excluding cash on hand and accounts receivable, which shall be and remain the property of Sellers), current operating expenses, association or trade group dues, accounts payable, real estate taxes, other taxes and assessments, all utilities, water and sewer charges, transferable license or permit fees, real estate and personal property ad valorem taxes (provided that, personal property taxesad valorem taxes shall not be prorated to the extent that Purchaser provides to Sellers evidence prior to the expiration of the Feasibility Period that local law where any of the Hotels are located would require Purchaser to pay such taxes that have already been paid by or on behalf of the respective Seller), assessmentsphone bills, rentsoffice bills, prepayments made under the Contracts and CAM other income and expenses from or relating in each case to the Premises shall be adjusted and prorated as of the Closing, with Purchaser being entitled to all income and responsible for all expenses accruing after the Closing and Sellers being entitled to all income and responsible for all expenses accruing prior to the Closing. Sellers shall provide Purchaser with a list of all contracts subject to prorations for Purchaser's review at least two (2) weeks prior to Closing. Sellers and Purchaser agree that inventories at any of the Hotels shall not be prorated. If any items of income or expense are unascertainable on the Closing Date, a readjustment of such charges and expenses shall be prorated through Escrow between Buyer made within sixty (60) days after the Closing or, in the case of property taxes for which tax bills are not yet available, promptly after such tax bills become available. The parties agree to cooperate in good faith in effecting such a final reconciliation and Seller each party shall promptly pay (or reimburse the other party for) any expense item that is chargeable to the former party and shall promptly remit any income item to the other party if the other is entitled thereto. Sellers shall use reasonable efforts to arrange for the rendition of final bills by the utility companies involved as of Close the Closing Date. Sellers shall use reasonable efforts to provide Purchaser with accountings for vending machines and commissions as of Escrowthe Closing Date. All security deposits Sellers shall be paid over credit Purchaser with the cost of repairs that have not been completed as of Closing with respect to Buyerdamage caused by Hurricane Xxxx as set forth on the Xxxx Damage Schedule, as more fully set forth in Section 3.4. Rents Guest room revenues of the Premises, whether in cash or in accounts receivable, arising from occupancy for the night beginning on the day preceding the Closing Date, including any tax thereon, but exclusive of food, beverage, telephone and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and similar charges (which are collected by Buyer or Seller shall be retained by Sellers), shall be credited one-half to Purchaser and one-half to Sellers. Sellers shall collect all income and other sums payable by tenants or guests (or otherwise) and shall be responsible for the payment of all expenses on account of services and supplies furnished to and for the benefit of the Premises through the Closing. Purchaser shall purchase and Sellers shall be credited for guest ledger receivables and for any and all cash that is in the cash drawer of each of the Hotels on the Closing Date. On the Closing Date, Sellers will not remove any other house funds or xxxxx cash from the Premises until Purchaser is ready to start its operations. Purchaser shall be credited with all deposits from tenants or guests of the Premises (whether refundable or not) which relate to post-Closing services. Sellers shall remit to Purchaser at Closing all prepaid room charges for nights after the Closing Date. In addition, at Closing, Sellers shall deliver to Purchaser a schedule of all unpaid accounts receivable and other unpaid income items as of Closing. All such accounts receivable and other income items paid to Seller; providedand collected by Purchaser after Closing shall be promptly remitted to the order of Sellers. Except for sums actually received by Purchaser pursuant to the immediately preceding sentence, however, that Purchaser shall assume no obligation to collect or enforce the payment of any amounts collected by Buyer or Seller shall that may be first applied to any rents then due to Buyer andSellers, if collected by Sellerexcept that Purchaser shall render reasonable assistance, remitted at no expense to Buyer for such purposePurchaser, to Sellers after Closing in the event Sellers proceed against any third party to collect any accounts receivable or other income items due Sellers. Seller Purchaser shall have the right to pursue collection of such items after the Closing without Sellers' consent or involvement. In the event any Tenant for delinquent rentadjustments pursuant to this Section 9 are, but shall not within one (al) cause Tenant year subsequent to Closing, found to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow erroneous, then if either party receives any further or supplemental tax xxxx relating hereto is entitled to any period prior to Close of Escrow, the recipient additional monies and shall promptly deliver a copy of such tax xxxx to invoice the other partyparty for such additional amounts as may be owing, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, amounts shall be paid promptly by Seller, and Seller the other party upon receipt of the invoice. Such invoice shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrombe accompanied by reasonable substantiating evidence. All leasing commissions and tenant improvement costs for new Leases executed after the date The provisions of this Agreement Section 9 shall be prorated between Buyer and Seller as their respective periods of ownership bears to survive the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Closing.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Salomon Brothers Holding Co Inc Salomon Brothers Inc)
Prorations. 6.7.1. Real property taxesSubject to the other provisions of this Section, personal property taxes, assessments, rents, and CAM expenses the items pertaining to the Project that are identified in this Section shall be prorated through Escrow between Buyer the parties on a per diem basis (employing the actual number of calendar days in the period involved and Seller a 365-day year) so that credits and charges with respect to such items for all days preceding the Closing Date shall be allocated to Seller, and credits and charges with respect to such items for all days including and after the Closing Date shall be allocated to Purchaser. All prorations not specifically agreed to herein shall be made in accordance with customary practice in the county in which the Project is located. This Section 7.D. shall survive the Closing to the extent provided below. The Purchase Price for the Property shall be subject to prorations and credits as follows to be determined as of Close 12:01 A.M. on the Closing Date, the Closing Date being a day of Escrowincome and expense to Purchaser:
1. All security deposits Rents payable under Tenant Leases. Purchaser shall receive a credit at Closing for all rents collected by Seller prior to the Closing and allocable to the period from and after the Closing Date. No credit shall be paid over to Buyer. Rents given the Seller for accrued and CAM expenses shall be approved by Buyer prior to Close of Escrowunpaid Rent or any other non-current sums due from tenants until said sums are paid. Any delinquent portion of any rents attributable collected subsequent to the Closing Date and properly allocable to periods prior to the Close of Escrow and which are collected by Buyer or Seller Closing Date shall be retained by or paid, within thirty (30) days after receipt, to the Seller, but subject to all of the provisions of this Section hereof; and any portion thereof properly allocable to periods subsequent to the Closing Date, if any, shall be paid to SellerPurchaser. Purchaser shall use reasonable efforts for a period of six (6) months after the Closing Date to collect any rent under the Tenant Leases which is past due as of the Closing and remit such collections to Seller within thirty (30) days after receipt; provided, however, that Purchaser shall not be obligated to sue xxx tenants. Any rent collected from a tenant by Purchaser shall be applied first to any amounts past due rents owed to Purchaser and second to any past due rents owed to Seller; and any rent collected from a tenant by Buyer or Seller shall be promptly remitted to Purchaser to the extent there are any past due rents owed to Purchaser; provided, however, if Seller uses any special efforts to collect any rent, including filing a lawsuit, any collections by Seller resulting from such special efforts shall be applied first applied to any past due rents then due owed to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue sue xxxants for rent accrued for the period prior to Closing as long as Seller does not sue xx terminate any Tenant for delinquent rent, but Leases or evict any tenants.
2. Seller shall not (a) cause Tenant be entitled to be delinquent for their current retain all adjustment rent or become financially unstable escalation payments collected under the Tenant Leases and payable for the period prior to Closing for taxes, operating expenses and HVAC charges for the Project, and Purchaser shall retain all such rent or (b) have payments payable for the right to seek eviction period after Closing. Purchaser shall be responsible for adjusting with the tenants all such payments for the year in which the Closing occurs in accordance with the terms of the Tenant Leases. Upon any final adjustment for the year in which the Closing occurs, Seller shall remit to Purchaser for payment to the tenants any adjustment rent or escalation payments paid to Seller under the Tenant Leases in excess of the amounts due from the tenants for such taxes and expenses, and any amounts due Seller from the tenants shall be promptly remitted to Seller within thirty (30) days after collection from the tenants. Any collections of adjustment rent or escalation payments from tenants shall be applied in the same order as set forth above for base rent.
3. Percentage rents payable under any Tenant Leases shall be preliminarily allocated as of the Closing Date with Seller entitled to any such percentage rents payable for any period prior to the Closing Date and Purchaser entitled to any such percentage rents payable for any period after the Closing Date. Within one hundred twenty (120) days after the end of the fiscal year for each Tenant Lease, Seller and Purchaser shall reprorate such percentage rents based on the portion of the fiscal year for such Tenant Lease during which the Project was owned by unlawful detainer or other meansSeller and the portion during which the Project was owned by Purchaser, without regard to when during such fiscal year such percentage rents were payable.
4. Tax Real estate taxes imposed in respect of the Project for the current year and assessment prorations to the extent unpaid, for prior years shall be prorated as of the Closing Date. Such proration shall be based on the latest available tax xxxxamount of taxes which would be payable, after any applicable discounts, if the taxes are paid at the earliest possible date, regardless of when such taxes are actually paid. If after Close the amount of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and taxes have not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated been determined as of Close of Escrow. All prorations Closing, such credit shall be based on the most recent ascertainable taxes and shall be reprorated upon issuance of the final tax bill. Xeller shall also give Purchaser a 360-day yearcredit for any special assessments against the Project which are due and payable prior to Closing.
6.7.25. All leasing commissions owing Utilities and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement fuel, including, but not limited towithout limitation, commissions for lease renewals steam, water, electricity, gas and expansion options, shall be paid by Seller, and oil. The Seller shall indemnify cause the meters, if any, for utilities to be read the day on which the Closing Date occurs and hold Buyer harmless for lease commission claims brought against to pay the Real Property arising therefrombills rendered on the basis of such readings. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from If any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.such meter
Appears in 1 contract
Samples: Purchase and Sale Agreement (General Growth Properties Inc)
Prorations. 6.7.1. Real property taxes(a) The following shall all be prorated as of 12:01 a.m. on the date of Closing, personal property taxes, assessments, on the basis of a 365-day year: (i) rents, and CAM all other income from the Property, if any, including, without limitation, any additional charges and expenses payable under the Leases, if any, all as and when actually collected (whether such collection occurs prior to, on, or after the Closing Date); (ii) real property taxes and assessments for the year in which the Closing occurs, (iii) water, sewer and utility charges, (iv) amounts payable under any service contracts Buyer assumes at Closing for the month in which the Closing occurs and prior months, (v) annual permits (to the extent same are assigned to Buyer at Closing) and/or inspection fees (calculated on the basis of the period covered), and (vi) any other expenses relating to the operation and maintenance of the Property. Buyer shall be prorated through Escrow between Buyer include all rent arrearages, if any, on Buyer's monthly invoices or xxxxxxxx to tenants and promptly deliver to Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable any such rent arrearages that relate to periods prior to the Close of Escrow Closing if and which are when collected by Buyer or Seller shall be retained by or paid to SellerBuyer; provided, however, that any amounts collected by Buyer or Seller rents received from delinquent tenants after the Closing Date that are designated for periods after Closing shall be applied first applied against tenant's current rent due and then against any delinquent rents. The amount of any security or other deposits required to any rents then due be returned to Buyer and, if collected tenant's under the Leases by Seller, remitted to if any, shall be credited against the cash portion of the Purchase Price; accordingly, Seller shall retain the deposits and Buyer shall be responsible for handling such purposedeposits in accordance with the Leases and applicable law. Seller shall have the right to pursue retain all utility deposits, if any. Seller and Buyer hereby agree that if any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment aforesaid prorations cannot be calculated accurately on the Closing Date, then the same shall be calculated within thirty (30) days after the Closing Date, or as soon as sufficient information is available to permit the parties to accurately calculate such proration(s), and either party owing the other party a sum of money based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient such subsequent proration(s) shall promptly deliver a copy of such tax xxxx pay said sum to the other party, and not later than party within ten (10) days after such calculation is made; provided, however, that the tax proration referenced in Section (ii) herein shall be final as of the date of Closing. Seller shall be responsible for payment in full of all real estate taxes and assessments for years prior to the delinquency date shown on such tax xxxx Closing.
(b) Seller shall pay the premium for the Title Policy except for that portion to delete the so-called "survey exception." Buyer shall pay all expenses associated with the performance of Buyer's due diligence pursuant to Section 2.1 above. Escrow fees and recording charges and any other expenses of the escrow for the sale shall be split equally between Buyer and Seller Seller. Buyer shall deliver pay the costs of the execution and filing of the Deed. All costs and charges described in this paragraph shall be paid at Closing. Any bills received after the Closing and not previously prorated in escrow shall be divided as provided herein, and shall be paid promptly upon receipt of a xxxx therefor, and any and all other costs and expenses relating to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing purchase and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, sale transaction contemplated hereby shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3party incurring same.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Homes for America Holdings Inc)
Prorations. 6.7.1(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”):
(i) Rents, in accordance with Section 10.4(b) below.
(ii) Seller shall credit Purchaser at Closing with all cash Security Deposits and any prepaid rents, together with any interest to be paid to the Tenant thereon.
(iii) Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real property taxesProperty, Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem estimated adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Service Contracts.
(v) All real estate and personal property taxes, taxes and assessments, rentsprorated for the period for which such taxes and assessments are assessed, regardless of when payable, on the basis of the number of days in such period the Property will have been owned by Seller and CAM expenses Purchaser, respectively. If the current tax xxxx is not available at Closing, then the proration shall be made on the basis of the most recent ascertainable tax xxxx. Any taxes paid at or prior to Closing shall be prorated through Escrow between Buyer based upon the amounts actually paid. If taxes and assessments for the fiscal year in which Closing occurs have been determined but have not been paid before Closing, Seller shall be charged and Purchaser credited at Closing with an amount equal to that portion of such taxes and assessments which relates to the period before the date of Closing, and Purchaser shall pay the taxes and assessments prior to the same becoming delinquent. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Purchaser shall, at Closing, assume all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing. Notwithstanding anything to the contrary contained in this Agreement, Seller reserves the right to meet with governmental officials and to continue to contest any reassessment or assessment of the Property or any portion thereof as set forth on Exhibit P and to attempt to obtain a refund for any taxes previously paid. Seller shall retain all rights with respect to any refund of Close taxes applicable to any period prior to the Closing Date and Purchaser shall retain all rights with respect to any refund of Escrowtaxes applicable to any period on or after the Closing Date
(vi) [This section intentionally omitted.]
(vii) Seller shall be responsible for all salary, bonus (including any stock bonus) and benefits owed to the Company California Employees on account of employment prior to the Closing. All security deposits To the extent that any of Westcore Management’s employee benefits impose a waiting period on new employees before such benefit will be available, and Seller or MCRC has the ability to continue comparable benefits post-Closing in favor of the Company California Employees, during all or a portion of such waiting period, payment to Seller or MCRC of the costs of continuing such benefits for such period. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller’s insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Buyer. Rents Purchaser all Rental, if any, received by Seller after Closing and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. For purposes of this Agreement, rental is “Delinquent” when it was due prior to the Close Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of Escrow any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and which are collected will not be required to (i) pursue legal action to enforce collection of any such amounts owed to Seller by Buyer any Tenant, (ii) terminate the Lease with respect to any such Tenant, or (iii) terminate any Tenant’s right to possession under such Lease. After the Closing, if Purchaser declines to pursue a collection action against a Tenant for Delinquent Rental, then Seller shall be retained by or paid have the right to Sellerdo so; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (aA) cause Tenant terminate any Lease or terminate or disturb Tenant’s right to be delinquent for their current rent or become financially unstable possession thereunder, or (bB) have commence any lawsuit until the right to seek eviction earlier of one year after the Tenant by unlawful detainer Closing Date or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days one month prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to expiration of the taxing authority their respective shares statute of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements limitations with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromsuch claim. All leasing commissions sums collected by Purchaser from and after Closing from each Tenant (excluding tenant improvement costs specific xxxxxxxx for new Leases executed after the date of this Agreement shall tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be prorated between Buyer and Seller as their respective periods of ownership bears applied first to the primary term of month in which the new Lease subjectClosing occurs, in all events, then to the prior approval of said Leases as herein provided current amounts owned by Buyer pursuant such Tenant to Paragraph 7.3Purchaser and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 6%; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, assessmentsif any, rentsfor such items) and taking into account the full discount available for payment of real estate taxes which remain unpaid; 100% of operating expenses which are reimbursable by Eckards, Publix, Beall's Outlet, Fashion Bug, Clixx'x Xxlliards, Kimsworth Inc. and Ross Dress for Less and 75% of txx xperating expenses which are reimbursable by the balance of the tenants for the period prior to the Closing Date less any amount previously paid by the Tenants shall be credited to Seller; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited against the balance of Close of Escrowthe cash due at Closing. All security deposits Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to on the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction basis of the Tenant most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All basic rent paid following the Closing Date by unlawful detainer or other means. Tax and assessment prorations shall be based on any tenant of the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, the recipient all current basis rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder. Within 120 days after the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at reasonable times and expansion optionsupon reasonable notice, shall be paid by of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, and Purchaser shall pay to Seller shall indemnify and hold Buyer harmless said additional Post-Closing Receipts and, if the additional Post-Closing Receipts equal an amount greater than $5,000, the cost of performing Seller's audit. Seller retains the right to bring suit for lease commission claims brought collection of delinquent rent against the Real Property arising therefromany tenant owing more than $5,000 of delinquent rent to Seller. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall survive the Closing and the delivery and recording of the deed.
12.3. Percentage rent payable under the leases shall be prorated between Buyer and Seller as their respective periods of ownership bears the Closing Date as follows:
12.3.1. Any percentage rent attributable to a specified period ("Percentage Rent Period") ending prior to the primary term of the new Lease subject, in all events, Closing Date shall be promptly paid over to the Seller if and when collected. Seller shall be entitled to all percentage rent attributable to the period prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Closing Date for any Percentage Rent Period ending prior to Closing Date.
6.7.312.3.2. Seller agrees Percentage rent payable with respect to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, a Percentage Rent Period a portion of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related occurs prior to the Property.
6.7.4. Buyer agrees to indemnify Closing Date and hold Seller harmless a portion of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring which occurs subsequent to the Close Closing Date shall be apportioned between Purchaser and Seller on the basis of Escrow and their respective period of ownership during the applicable Percentage Rent Period. Seller shall be entitled to percentage rent determined by multiplying the total percentage rent for such Percentage Rent Period by a fraction, the numerator of which are shall be the total number of days in any way related such Percentage Rent Period prior to the PropertyClosing Date and the denominator of which shall be the total number of days in the Percentage Rent Period. Purchaser shall be entitled to the remainder of such percentage rent. The amount of such percentage rent allocated to Seller shall be adjusted by the parties and paid by Purchaser or Seller to the other, as appropriate, on the Closing Date based upon the most recently ascertainable financial data for calendar year 1996 and for calendar year 1997 (with percentage rent for calendar year 1997 being based on 75% of the percentage rent payable in calendar year 1996 with no other reproration). Seller shall have similar audit rights as contained in Paragraph 12.2 above.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and CAM expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. All security deposits The preliminary proration shall be paid over at Closing by Purchaser to BuyerSeller (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. Rents If the actual amounts of the Proration Items are not known as of the Closing Time, 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 CAM expenses a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be approved made by Buyer prior Purchaser and Seller on or before November 30, 2016 (herein, the “Final Proration Date”). The provisions of this Section 10.4 will survive the Closing until the Final Proration Date has occurred, and in the event any items subject to Close of Escrow. Any delinquent rents attributable to periods proration hereunder are discovered prior to the Close of Escrow and which are collected by Buyer or Seller Final Proration Date, the same shall be retained promptly prorated by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purposethe parties in accordance with the terms of this Section 10.4. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx Notwithstanding anything to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the contrary provided in this Agreement including, but not limited to, commissions this Section 10.4(a), Seller and Purchaser hereby agree to use the following, estimated 2016 real estate taxes and assessments for lease renewals purposes of the proration of same at Closing: (x) $1,452,200.00 for the Champions Village Real Property and expansion optionsthe Champions Village Improvements and (y) $178,200.00 for the Oak Park Real Property and the Oak Park Improvements.
(b) Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Closing Time) of all Rentals previously paid to and collected by Seller and attributable to any period following the Closing Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rentals, if any, received by Seller after Closing and properly attributable to any period following the Closing Time. “Rentals” includes fixed monthly rentals, parking rentals and charges, additional rentals, percentage rentals, escalation rentals (which include such Tenant’s proportionate share of building operation and maintenance costs and expenses as provided for under the applicable Tenant Lease, to the extent the same exceeds any expense stop specified in such Tenant Lease), retroactive rentals, administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable to the landlord under the Tenant Lease or from other occupants or users of the Property, excluding specific tenant xxxxxxxx which are governed by Section 10.4(d). Rentals are “Delinquent” if they were due prior to the Closing Time and payment thereof has not been made on or before the Closing Time. Delinquent Rentals will not be prorated. For a period of three (3) months after Closing, Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rentals, but Purchaser will have no liability for the failure to collect any such amounts and will not be required to incur legal fees or other out-of-pocket expenses, conduct lock-outs or take any other legal action to enforce collection of any such amounts owed to Seller by Tenants of the Property. Purchaser shall have the exclusive right to collect Delinquent Rentals from current Tenants of the Property and Seller hereby relinquishes its rights to pursue claims against any Tenant or guarantor under any Tenant Leases for same. Nothing herein shall prohibit Seller from pursuing Delinquent Rentals from former tenants of the Property. With respect to any Delinquent Rentals received by Purchaser within one (1) year after Closing (the “Delinquent Rental Proration Period”), Purchaser shall pay to Seller any rent or payment actually collected during the Delinquent Rental Proration Period properly attributable to the period prior to the Closing Time. All sums collected by Purchaser during the Delinquent Rental Proration Period, from such Tenant (excluding Tenant payments for Operating Expense Recoveries attributable to the period prior to the Closing Time and tenant specific xxxxxxxx for tenant work orders and other specific services as described in and governed by Section 10.4(d) below, all of which shall be paid by Seller, payable to and belong to Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, notwithstanding anything herein to the contrary) will be applied first to amounts currently owed by such Tenant to Purchaser (including 34 Delinquent Rentals attributable to the period after the Closing Time), then any collection costs of Purchaser related to such Tenant, and then to prior approval of said Leases as herein provided delinquencies owed by Buyer pursuant Tenant to Paragraph 7.3.
6.7.3Seller. Seller agrees shall not be entitled to indemnify institute legal actions to pursue Delinquent Rental after Closing. Any sums collected by Purchaser and hold Buyer harmless from any and all liabilities, claims, demands, suitsdue Seller will be promptly remitted to Seller, and judgments, of any kind or nature, including court costs sums collected by Seller and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related due Purchaser will be promptly remitted to the PropertyPurchaser.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Preferred Apartment Communities Inc)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses, such as trash removal, heating, ventilation and air conditioning service and maintenance contracts; real and personal property taxes, assessments, rents; and other similar items shall be adjusted ratably as of 11:59 p.m. on the Closing Date, and CAM expenses shall be prorated through Escrow between Buyer and Seller as credited or debited against the balance of Close of Escrowthe cash due at Closing. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior Assessments payable in installments which are due subsequent to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, Closing Date shall be paid by SellerPurchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data, other than real estate taxes, which shall be prorated on the basis of 105% of the aggregate 1995 real estate taxes. Additionally, Purchaser shall receive a credit of $35,000.00 as "rent concessions" at Closing. All prorations will be final except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. If, as of the Closing Date, any rent is in arrears for the period prior to the calendar month when the Closing occurs, then the first rent collected by Purchaser shall be applied to current rents and then towards subsequent delinquent rent. If on the Closing Date rent is in arrears only for the calendar month when the Closing occurs, then the first rent collected by Purchaser shall be apportioned between Seller and Purchaser. Any amounts due to Seller shall indemnify and hold Buyer harmless for lease commission claims brought against be paid by Purchaser to Seller within 10 days of receipt of such amounts. Any amounts collected by Purchaser pursuant to this Paragraph are hereinafter collectively referred to as the Real Property arising therefrom"Post Closing Receipts". All leasing commissions and tenant improvement costs for new Leases executed Within 120 days after the date Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 90 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes(a) As applicable, personal property general real estate taxes, assessments, rentshomeowner's association dues, condominium association dues, condominium fees, utility payments and CAM expenses other items that are customarily prorated shall be prorated through Escrow between Buyer with respect to the Properties at the Closing. In the event that final bills (including but not limited to real estate tax bills) are not available or cannot be issued prior to Closing for any item being prorated then Purchaser and Seller agree to allocate such items on a fair and equitable basis as of Close of Escrowsoon as such bills are available, final adjustment to be made as soon as reasonably possible after the Closing, but in no event later than three hundred sixty-five (365) days after Closing. All security deposits Payments in connection with final adjustment shall be paid over to Buyer. Rents due within thirty (30) days of written notice.
(b) All prorations are final unless otherwise indicated in this Agreement.
(c) If the amount of the current real estate taxes and CAM expenses assessments for the Properties is not ascertainable at the time of closing, said taxes and assessments shall be approved by Buyer prior to Close prorated on the basis of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow most recent ascertainable real estate taxes and which are collected by Buyer or Seller assessments, and the parties shall reprorate the taxes and assessments when the actual bills therefor shall be retained by or paid to Sellerissued; provided, however, that if any amounts collected by Buyer or Seller shall be first applied to any rents Property is not assessed as a separate parcel for tax purposes, then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant taxes and assessments attributable to Property shall be delinquent based upon an amount equal to the most recent ascertainable taxes and assessments for their current rent or become financially unstable or the tax parcel of which such Property is a part multiplied by a fraction the denominator of which shall be the total number of square feet in the tax parcel of which such Exercised Lot is a part and the numerator of which shall be the number of square feet in such Property, and (b) said taxes and assessments shall be reprorated when the actual separate bills for such Property shall be issued.
(d) If, at the time of Closing, the Property is not being treated as a separate tax parcel, then, within thirty days after Closing, the parties shall file the necessary petitions and applications to have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available Property assessed as a separate tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day yearparcel.
6.7.2. All leasing commissions owing and tenant improvements with respect to (e) The obligations set forth in this subparagraph (E) shall survive the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Closing.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Heartland Partners L P)
Prorations. 6.7.1. Real property taxesA. Xxxts (exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; accrued but unpaid interest on the Note; fuels; prepaid operating expenses; 1995 (if not paid) and 1996 real and personal property taxes, assessments, rents, ; accrued but unpaid interest on the Note and CAM expenses other similar items shall be prorated through Escrow between Buyer and Seller adjusted ratably as of Close 12:01 a.m. on the Closing Date. Assessments of Escrow. All security deposits record (other than ad valorem taxes) payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved on the basis of the most recent ascertainable data. The parties agree to re-prorate the proration items within forty-five (45) days after the date of Closing, except as to delinquent rent referred to in Paragraph 12B below. In addition, Purchaser shall give Seller a credit at Closing for all escrows, reserves and holdbacks held by Buyer prior the Lender under the Loan Documents, except for amounts, if any, of such escrows, reserves and holdbacks applicable to Close of Escrow. Any delinquent rents attributable expenses which relate to periods the period prior to the Close of Escrow and Closing Date for which are collected Purchaser has not been given a credit hereunder.
B. All sums paid following the Closing Date by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction tenant of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, the recipient all then current basic rent shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days prior following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. For a period of sixty days following Closing, Purchaser shall send monthly collection notices to tenants residing at the delinquency date shown on such tax xxxx Buyer Property owing Post-Closing Receipts. Within 90 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the first 60 days after the Closing Date. Upon the delivery of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not previously delivered to Seller in accordance with the terms hereof. At Seller's expense, Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts. Seller shall deliver to Purchaser any sums received by Seller after the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect Closing Date which relate to the Real Property entered into prior to execution period of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed time after the date Closing Date, along with an accounting identifying any such sums. Paragraph 12B of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1. Real property Notwithstanding anything to the contrary contained in this Agreement, all rent, additional rent, real estate taxes, personal property taxescommon area maintenance and other charges, assessments, rents, insurance obligations and CAM expenses utility charges payable under the Acquired Leases shall be prorated through Escrow between Buyer and Seller as of Close of Escrowthe Final Closing Date for each Acquired Lease. Sellers agree to prorate real estate taxes and assessments based on when such taxes and assessments accrue, notwithstanding when such taxes and assessments become a lien on the premises leased by an Acquired Leases. All security deposits percentage rent based on sales payable under an Acquired Lease for the fiscal period in which the Final Closing Date for such Acquired Lease occurs shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close the responsibility of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; Sellers, provided, however, that any amounts collected by if Buyer or Seller opens for business from the applicable Store in the fiscal period in which the percentage rent is calculated, then percentage rent based on sales shall be first applied to any prorated based upon the ratio that sales made at such Store for which percentage rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days are calculated prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership applicable Final Closing Date bears to the primary term of aggregate sales made for the new Lease subjectrelevant fiscal period for which percentage rents are computed. The Sellers shall reasonably cooperate with Buyer in providing documents required under the Acquired Leases in order to comply with percentage rent reporting requirements. The Sellers and Buyer agree to adjust between themselves after the applicable Final Closing any errors, reconciliations, or omissions in all events, the prorations or adjustment set forth in the closing statements and any other prorations or adjustment made pursuant to this Agreement. Notwithstanding anything contained herein to the prior approval contrary, such apportionments shall be deemed final and not subject to further post-closing adjustments if no such adjustments have been requested within ninety (90) days after such time as all necessary information is available to make a complete and accurate determination of said Leases as herein provided by Buyer pursuant to Paragraph 7.3such apportionments.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fao Inc)
Prorations. 6.7.1. Real property taxesSeller and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and CAM expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller as and delivered to the Title Company for purposes of Close of Escrowmaking the preliminary proration adjustment at Closing subject to the final cash settlement provided for below. All security deposits The preliminary proration shall be paid over at Closing by Purchaser to BuyerSeller (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. Rents If the actual amounts of the Proration Items are not known as of the Closing Time, 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 CAM expenses a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Seller’s insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be approved made by Buyer prior Purchaser and Seller on or before November 30, 2016 (herein, the “Final Proration Date”). The provisions of this Section 10.4 will survive the Closing until the Final Proration Date has occurred, and in the event any items subject to Close of Escrow. Any delinquent rents attributable to periods proration hereunder are discovered prior to the Close of Escrow and which are collected by Buyer or Seller Final Proration Date, the same shall be retained promptly prorated by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purposethe parties in accordance with the terms of this Section 10.4. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx Notwithstanding anything to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the contrary provided in this Agreement including, but not limited to, commissions this Section 10.4(a), Seller and Purchaser hereby agree to use the following, estimated 2016 real estate taxes and assessments for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term purposes of the new Lease subject, in all events, to the prior approval proration of said Leases as herein provided by Buyer pursuant to Paragraph 7.3same at Closing: $110,000.00.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Preferred Apartment Communities Inc)
Prorations. 6.7.1. (a) Real property taxestaxes and assessments; water, personal property taxessewer and utility charges; amounts payable under any Service Contracts or other agreements or documents assumed by Buyer in accordance with the terms and conditions of Section 7.2; annual permits and/or inspection fees (calculated on the basis of the period covered); and any other expenses of the maintenance of the Property (including, assessmentswithout limitation, rentsexpenses prepaid by Seller and expenses already paid by Seller but which are being amortized over time by Seller and with respect to which Seller shall receive a credit at Closing in the amount of the prepaid or unamortized portion thereof), and CAM expenses shall all be prorated through Escrow between Buyer and Seller as of Close 11:59 p.m. on the day immediately prior to Closing (i.e., Buyer is entitled to the income and responsible for the expenses of Escrowthe day of Closing), on the basis of a 365-day year. All security Seller shall receive credits at Closing for the amount of any utility or other deposits with respect to the Property if the utility companies agree, in writing, that such deposits shall be paid over transferred to Buyer for its account. Buyer shall cause all utilities to be transferred into Buyer’s name and account at the time of Closing. Rents To the extent Seller does not receive a credit for a deposit, Seller hereby retains the rights to such deposit and CAM expenses to pursue such amounts. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, then the same shall be approved by Buyer prior calculated as soon as reasonably practicable after the Closing Date, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to Close of Escrowthe other party within thirty (30) days thereafter. Any delinquent rents attributable amounts not paid within such thirty (30) day period shall bear interest from the date actually received by the payor until paid at the greater of (i) the rate of ten percent (10%) per annum or (ii) the prime rate (or base rate) reported from time to time in the “Money Rates” column or section of The Wall Street Journal as being the base rate on corporate loans at larger United States money center commercial banks plus two (2) percent. Seller retains the right to pursue and control any pending tax appeals applicable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction tax year of the Tenant by unlawful detainer Closing, and Buyer shall cooperate with Seller with respect to such appeals at no material cost or other meansexpense to Buyer. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close Any refund of Escrow either party receives any further real property taxes or supplemental tax xxxx special assessments relating to any the period prior to Close Closing shall be for the account of EscrowSeller. To the extent Buyer receives any such refund, Buyer shall remit such refund to Seller within five (5) business days of receipt thereof. Notwithstanding the recipient shall promptly deliver a copy of such tax xxxx to the other partyforegoing, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver reasonably and jointly pursue and control any tax appeals applicable to the taxing authority their current tax year, and the parties shall prorate all costs incurred and recovered in connection therewith based on the portion of the proceeds of any tax appeal recovery allocable to each party’s respective shares period of such tax xxxxownership of the Property.
(b) Except as provided in Article IV, prorated as Section 6.2 and Section 9.5 of Close of Escrow. All prorations this Agreement, (i) Buyer shall be based on a 360-day year.
6.7.2. All leasing commissions owing responsible for all survey costs, the cost of any ALTA policy, title endorsements and tenant improvements with respect to other title fees, and all escrow or closing fees, (ii) Seller will be responsible for the Real Property entered into prior to execution of the Agreement includingCounty documentary transfer tax, but and (iii) all other costs and expenses not limited to, commissions for lease renewals listed in subclauses (i) and expansion options(ii) above, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears at Closing in accordance with prevailing local custom in the city, county and state in which the Property is located. The parties will execute and deliver any required transfer or other similar tax declarations to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3appropriate governmental entity at Closing.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms c) The provisions of this Agreement specifically become Section 8.5 shall survive the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the PropertyClosing.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.14.2.1 No later than three (3) Business Days prior to the Scheduled Closing Date, Seller shall prepare a closing statement (the “Closing Statement”) of the prorations required by this Agreement. The following items, as to each Property, are to be prorated and adjusted between Purchaser and Seller, it being understood that the intent is to credit or charge, as the case maybe, Seller with all revenues and expenses respecting the Properties which are attributable to operations before the Closing Date for which Seller is obligated to provide a credit to the SUSP I PSA Sellers pursuant to the SUSP I PSA and to credit or charge as the case may be, Purchaser with all such revenues and expenses attributable to operations on and after the Closing Date to which Seller is entitled under the SUSP I PSA:
4.2.1.1 Real property taxes, estate and personal property taxes, taxes and assessments, in each case, with Seller responsible for taxes attributable to the portion of the current tax year which is prior to the Closing Date and for all prior years and Purchaser responsible for taxes attributable to the remainder of the current tax year and for all future years (which prorations shall be calculated on the basis of the most recent available xxxx if the current xxxx is not available);
4.2.1.2 All rents and other payments under the licenses, occupancy agreements and other agreements demising space in or providing for the use of occupancy of the Properties or any part thereof (the “Leases”), including but not limited to monthly rents, fixed periodic payments, additional rent payments, utility charges, rent escalations, operating expenses, tax and CAM expenses insurances charges payable by Tenant, cost-of-living adjustments and other forms of rent (collectively, “Rent”); provided that no proration shall be made of any Rent which is overdue as of the Closing Date until such Rent or other revenue item is actually received, at which time it shall be prorated through Escrow between Buyer and paid to Purchaser or Seller as in accordance with the terms of Close this Agreement. To the extent Purchaser receives Rents on or after the Closing Date, such payments shall be
(i) first toward the payment in full of Escrow. All security deposits shall be paid over any Rents due to Buyer. any SUSP I PSA Sellers pursuant to the SUSP I PSA solely for Rents that were, on the Closing Date both (a) due and payable to any SUSP I PSA Sellers pursuant to the SUSP I PSA with respect to any Property, and (b) less than thirty (30) days delinquent, (ii) second, toward the payment in full of all Rents and CAM expenses shall be approved by Buyer prior other amounts due to Close of Escrow. Any delinquent rents attributable Purchaser, with respect to any Property, with respect to periods after Closing, and (iii) thereafter, the balance applied to delinquent Rents or other amounts due to Seller with respect to periods before Closing;
4.2.1.3 Water, electric, telephone and all other utility and fuel charges (on the basis of the number of days in each applicable xxxx occurring prior to to, and on or after, the Close of Escrow Closing Date) and which are collected by Buyer or Seller shall be retained by or paid to Sellerfuel on hand (at cost plus sales tax); provided, however, that any amounts collected by Buyer or deposits with utility companies shall remain the property of Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but and shall not be prorated or credited. Notwithstanding the foregoing, at Purchaser’s sole option, Purchaser may elect in writing at least five (a5) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days Business Days prior to the delinquency date shown on such tax xxxx Buyer and Closing Date to assume any deposits with utilities companies in which event Seller shall deliver receive a credit for such deposits at Closing;
4.2.1.4 Amounts due and payable by any SUSP I PSA Sellers pursuant to the taxing authority their respective shares of such tax xxxxSUSP I PSA under all maintenance, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing service, advertising, utility, television, internet and tenant improvements other like contracts and agreements with respect to the Real Property entered into prior to execution ownership and operation of the Agreement includingProperties (the “Assumed Service Contracts”; provided that the term Assumed Service Contracts shall not include any brokerage leasing agreements or any property management agreements or Construction Contracts), but not limited and any unamortized portion of any lump sum or up-front payments paid by any SUSP I PSA Sellers under Assumed Service Contracts; and
4.2.1.5 Fees, costs and expenses payable to the Additional Estoppel Parties.
4.2.2 Except with respect to, commissions for lease renewals : (i) general real estate and expansion options, personal property taxes (which shall be paid by Seller, reprorated as soon as practicable and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed in any event no later than three (3) Business Days after the date issuance of this Agreement the actual bills) and (ii) reconciliations for common area maintenance and similar charges pursuant to Leases (which shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring reprorated on or before April 23, 2015), any proration in the Close of Escrow Closing Statement prepared pursuant to Section 4.2.1 shall (i) be paid on the Closing Date pursuant to Section 2.1.2 and (ii) be reprorated and finally adjusted on February 20, 2015 (or the earliest date subsequent to which are in any way related dispute is resolved pursuant to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless provisions of and from any and this Section 4.2.2); otherwise, all liabilitiesprorations shall be final, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent subject to the Close provisions governing the payment of Escrow and which are in any way related to the Propertydelinquent Rent under Section 4.2.1.
Appears in 1 contract
Samples: Purchase and Sale of Membership Interests Agreement (Parkway Properties Inc)
Prorations. 6.7.1. Real property taxes(a) Seller and Purchaser agree to adjust, personal property taxesas of 11:59 p.m. on the day preceding the Closing Date (the "PRORATION TIME"), assessmentsthe following (collectively, the "PRORATION ITEMS"):
(i) Rentals, in accordance with Section 10.4(b) below.
(ii) Cash Security Deposits (to the extent such Security Deposits have not yet been applied toward the obligations of any Tenant under the Leases) and any prepaid rents, together with interest required to be paid to Tenants thereon.
(iii) Utility charges payable by Seller, including, without limit.ation, electricity, water charges and CAM sewer charges. If there are meters on the Real Property, Seller will cause readings of all said meters to be performed not more than three (3) Business Days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading.
(iv) Amounts payable under the Construction Contracts.
(v) Amounts payable under the Spectrasite Agreements (unless Purchaser complies with the requirements in Section 3.2).
(vi) Ad valorem taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of ad valorem taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, ad valorem taxes (by reason of change in either assessment or rate or for any other reason) for the Real Property and Improvements should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa. Any and all expenses incurred or to be incurred in connection with any real estate tax appeals that are pending at the time of Closing shall be prorated through Escrow between Buyer in the same manner as ad valorem taxes set forth above. Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller as of Close of Escrowand submitted to Purchaser prior to the Closing Date (the "CLOSING STATEMENT"). All security deposits The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. If the actual amounts of the Proration Items are not known as of the Closing Date, the prorations will be made at Closing on the basis of the best evidence then available; thereafter, when actual figures are received, re-prorations will be made on the basis of the actual figures, and a final cash settlement will be made between Seller and Purchaser. No prorations will be made in relation to insurance premiums, and Seller's insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. Seller will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for any deposits with the utility providers. The provisions of this Section 10.4(a) will survive the Closing for twelve (12) months.
(b) Purchaser will receive a credit on the Closing Statement for all unpaid amounts under the Construction Contracts assumed by Purchaser hereunder to the extent such amounts relate to incomplete tenant improvements contemplated by the relevant Lease. Purchaser will also receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Buyer. Rents Purchaser all Rental, if any, received by Seller after Closing and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods any period following the Proration Time. "RENTAL" as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant's proportionate share of building operation and maintenance costs and expenses as provided for under its Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. Rental is "DELINQUENT" when it was due prior to the Close Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. With respect to Tenants still in occupancy, Purchaser agrees to use commercially reasonable efforts with respect to the collection of Escrow any Delinquent Rental, but Purchaser will have no liability for the failure to collect any such amounts and which are collected will not be required to pursue legal action to enforce collection of any such amounts owed to Seller by Buyer or any Tenant. With respect to Tenants no longer in occupancy, Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have reserves the right to pursue any the collection of Delinquent Rental. All sums collected by Purchaser from and after Closing from each Tenant (excluding tenant specific xxxxxxxx for delinquent rent, but shall not tenant work orders and other specific services as described in and governed by Section 10.4(d) below) will be applied first to current Rental (awhich may include delinquencies owed to Seller for the calendar month of Closing) cause and then to delinquencies owed by such Tenant to Seller. Any sums due Seller will be delinquent for their current rent or become financially unstable or (b) have the right promptly remitted to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day yearSeller.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Prorations. 6.7.1. Real property taxes, personal property taxes, assessments, rents, and CAM expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant Subject to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction provisions of Exhibit E hereto the Tenant by unlawful detainer or other means. Tax and assessment prorations following shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements apportioned with respect to the Real Property entered into prior to execution Property:
(i) real property taxes affecting the Realty and personal property taxes affecting the Personalty for the then current year, as of the Agreement includingdate of Closing, but any apportionment of such taxes with respect to a tax year for which either the tax rate or assessed valuation or both have not limited toyet been fixed to be made upon the basis of the tax rate and/or assessed valuation last fixed; provided that Seller and Purchaser agree that to the extent the actual taxes for the current year differ from the amount so apportioned at Closing, commissions for lease renewals Seller and expansion optionsPurchaser will make all necessary adjustments by appropriate payments between themselves following Closing, such obligation to survive Closing;
(ii) current expenses under the Operating Agreements; and
(iii) gas, electricity, water, trash disposal and other utility charges.
(b) In making such apportionments, Purchaser shall be paid by Seller, responsible for real property taxes and Seller shall indemnify other expenses accrued or incurred from and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement Closing. All such apportionments shall be prorated between Buyer subject to post-Closing adjustments as necessary to reflect later relevant information not available at Closing and to correct any errors made at Closing with respect to such apportionments and the party receiving more than it was entitled to hereunder shall reimburse the other party hereto in the amount of such overpayment within thirty (30) days after receiving written demand therefor; provided that the party hereto receiving such notice has received sufficient evidence to verify the amount of such overpayment. In the event such party has not received sufficient evidence to verify the amount of overpayment, such party shall be afforded additional time to verify and/or dispute the amount of overpayment, but in no event longer than thirty (30) days after the notice. Notwithstanding the foregoing, such apportionments shall be deemed final and not subject to further post-Closing adjustments if no such adjustments have been requested after a period of sixty (60) days after the Closing Date. All other matters with respect to apportionments shall be governed by the Closing Memorandum. The provisions of this Section 4.4(b) shall survive Closing.
(c) Governmental assessments against the Realty shall not be prorated, but such assessments shall be paid in full by Seller as their respective periods of ownership bears at or prior to the primary term of Closing Date if the new Lease subjectwork for which assessment was made has been fully performed, in all events, to or assumed and paid by Purchaser if such work has not been fully performed by the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3Closing Date.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Dendrite International Inc)
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents [i.e. unpaid on the Closing Date], but including prepaid rents); prepaid associations dues, refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; real and personal property taxes, assessments, rents; and other similar items shall be adjusted ratably as of 11:59 p.m. on the date prior to the Closing Date, and CAM expenses credited against the balance of the cash due at Closing. Seller shall be prorated through Escrow between Buyer and Seller as of Close of Escrowreceive a credit for the compensation payable to its manager on the Closing Date. All security deposits Assessments payable in installments which are due subsequent to the Closing Date shall be paid over by Purchaser. If the amount of any of the items to Buyer. Rents and CAM expenses be prorated is not then ascertainable, the adjustments thereof shall be approved by Buyer prior on the basis of the most recent ascertainable data. All prorations will be final except as to Close delinquent rent referred to in Paragraph 12.2 below, and except as provided in the last sentence of Escrowthis section. Any delinquent rents attributable The parties agree to periods prior to the Close of Escrow make such post-closing and which are collected by Buyer or Seller shall readjustments as may be retained by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then required due to Buyer and, if collected errors and omissions in the prorations or due to obtaining actual amounts for items which were prorated based on estimates within thirty (30) days after the Closing Date.
12.2. All rent paid following the Closing Date by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction tenant of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to Property who is indebted under a lease for basic rent for any period prior to Close and including the Closing Date after the payment to Purchaser of Escrow, the recipient all current rent and any past due rent owed to Purchaser shall promptly deliver be deemed a copy of "Post-Closing Receipt" until such tax xxxx to the other party, and not later than time as all such indebtedness is paid in full. Within ten (10) days following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such Post-Closing Receipt to Seller. Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Post-Closing Receipts hereunder but shall have no obligation to bring legal action. If Purchaser expends funds to collect rent due prior to the delinquency date shown on such tax xxxx Buyer and Seller Closing Date, Purchaser shall be reimbursed its collection expenses from any delinquent rent collected. Within 120 days after the Closing Date, Purchaser shall deliver to Seller a reconciliation statement of Post-Closing Receipts through the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrowfirst 90 days after the Closing Date. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to Upon the Real Property entered into prior to execution delivery of the Agreement includingPost-Closing Receipts reconciliation, but Purchaser shall deliver to Seller any Post-Closing Receipts owing to Seller and not limited topreviously delivered to Seller in accordance with the terms hereof. Seller retains the right to conduct an audit, commissions for lease renewals at reasonable times and expansion optionsupon reasonable notice, shall be paid by of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromcost of performing Seller's audit. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale (Balcor Equity Pension Investors Ii)
Prorations. 6.7.1The Purchase Price for the Property shall be subject to prorations and credits as follows to be determined as of 12:01 A.M. on the Closing Date, the Closing Date being a day of income and expense to Purchaser:
1. Real property taxesHotel Revenues. Except as set forth below, personal property taxesSeller shall be entitled to all hotel room, assessmentsfood service, rentsbar, beverage and liquor revenues and charges and all revenues and charges from hotel room operations, restaurant operations, hotel banquet and conference facility operations, and CAM expenses other revenue of any kind attributable to the same for the period prior to 12:01 a.m. on the Closing Date. Purchaser shall be prorated through Escrow between Buyer entitled to all hotel room, food service, bar, beverage and liquor revenues and charges and all revenues and charges from restaurant operations, hotel banquet and conference facility operations, and all other revenue of any kind attributable to any of the same for the period on and after 12:01 a.m. on the Closing Date. Notwithstanding the foregoing, Purchaser shall be entitled to one-half (1/2) of the revenue from hotel rooms at the Project for the night preceding the Closing. Purchaser shall not give Seller a credit at Closing for any accounts receivable in connection with the Project as of Close Closing; but Purchaser shall use reasonable efforts to collect such accounts receivable and shall remit them to Seller within fifteen (15) days of Escrow. All security deposits collection, less all reasonable costs of collection; provided, however, any collection of account receivables shall be applied to those accounts designated by the payor, and, if there is no such designation, first to undisputed accounts receivable accruing prior to Closing but less than ninety (90) days old and then to undisputed accounts receivable accruing after Closing and lastly to undisputed accounts receivable accruing prior to Closing which are more than ninety (90) days old. Seller shall deliver to Purchaser or provide Purchaser a credit against the Purchase Price for the Project in an amount equal to all guest reservation deposits held by the hotel for hotel guests arriving or staying after check out time for the Project on the Closing Date. If any account receivable accruing prior to the Closing is not paid over within forty-five (45) days of the due date, Seller may elect to Buyerpursue the party obligated on the account receivable; and Purchaser shall cooperate in such pursuit provided Purchaser shall not be obligated to become a party to any lawsuit and provided Purchaser shall not incur any expense as a result thereof
2. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrowpayable under Tenant Leases. Any delinquent rents attributable portion of any Rents collected subsequent to the Closing Date and properly allocable to periods prior to the Close Closing Date, net of Escrow and which are collected by Buyer or Seller Purchaser's costs of collection, if any, shall be retained by or paid paid, promptly after receipt, to the Seller, but subject to all of the provisions of this Section hereof; provided, however, that and any amounts collected by Buyer or Seller shall be first applied portion thereof properly allocable to any rents then due periods subsequent to Buyer andthe Closing Date, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion optionsany, shall be paid to Purchaser. Any amount collected from a tenant shall first be applied to such tenant's current monthly rental and then to past due amounts in the reverse order in which they were due. Any advance rental payments or deposits paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears tenants prior to the primary term of the new Lease subject, in all events, Closing Date and applicable to the prior approval period of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring time subsequent to the Close of Escrow Closing Date and which are in any way related security deposits or other amounts paid by tenants, together with any interest on both thereof to the Propertyextent such interest is due to tenants, shall be credited to Purchaser on the Closing Date. No credit shall be given the Seller for accrued and unpaid Rent or any other non-current sums due from tenants until said sums are paid.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Lasalle Hotel Properties)
Prorations. 6.7.1. Real property taxesFor the purpose of this Section 7.5, personal property all references to Transferor shall mean collectively Transferor and each of the Record Title Holders.
7.5.1 Rentals, revenues, and other income, if any, from the Property, taxes, assessments, rentsimprovement bonds, service or other contract fees, utility costs, and CAM other expenses affecting the Property shall be prorated through Escrow between Buyer Transferee and Seller Transferor as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods prior to the Close of Escrow and which are collected by Buyer or Seller shall be retained by or paid to SellerClosing Date; provided, however, that any amounts collected by Buyer or Seller Transferor shall receive a credit at the Closing in an amount equal to the rentals that are delinquent as of the Closing Date, but only to the extent that such delinquent rentals are due and owing from Tenants occupying a portion of the Property on the Closing Date; and provided further, that Transferee shall be first applied entitled to any rents then due and all payments subsequently received in satisfaction of such delinquent rentals, notwithstanding the fact that such rentals are attributable to Buyer anda period prior to Closing. For purposes of calculating prorations, if collected by SellerTransferee shall be deemed to be title holder of the Property, remitted and therefore entitled to Buyer the income and responsible for such purposethe expenses, after 12:01 a.m. on the Closing Date. Seller After the Closing, Transferor shall have the no right to pursue proceed in any Tenant manner or make any claim against Tenants for rents that were delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction as of the Tenant by unlawful detainer Closing Date, except to the extent that any such person no longer occupies any portion of the Property. All non-delinquent real estate taxes or other means. Tax and assessment prorations assessments on the Property shall be prorated based on the latest available actual current tax xxxx. If after Close of Escrow either party receives any further or supplemental , but if such tax xxxx relating to any has not yet been received by Transferor by the Closing Date or if supplemental taxes are assessed after the Closing for the period prior to Close of Escrowthe Closing, the recipient parties shall promptly deliver a copy of such tax xxxx make any necessary adjustment after the Closing by cash payment to the other partyparty entitled thereto so that Transferor shall have borne all real property taxes, and not later than ten (10) days including all supplemental taxes, allocable to the period prior to the delinquency date shown on such tax xxxx Buyer Closing and Seller Transferee shall bear all real property taxes, including all supplemental taxes, allocable to the period from and after the Closing. If any expenses attributable to the Property and allocable to the period prior to the Closing are discovered or billed after the Closing, the parties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Transferor shall have borne all expenses allocable to the period prior to the Closing and Transferee shall bear all expenses allocable to the period from and after the Closing. The provisions of this Section 7.5 shall survive the Closing.
7.5.2 Fifteen (15) Business Days prior to the Closing, Escrow Agent shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution each of the Agreement including, but not limited to, commissions parties for lease renewals their review and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against approval a preliminary closing statement (the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after "PRELIMINARY CLOSING STATEMENT") setting forth (i) the date of this Agreement shall be prorated between Buyer and Seller as their respective periods of ownership bears proration amounts allocable to the primary term each of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer parties pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.Section
Appears in 1 contract
Samples: Acquisition and Contribution Agreement (Apartment Investment & Management Co)
Prorations. 6.7.1. Real property taxesThe following items shall be prorated between Seller and Purchaser as of midnight of the day immediately preceding the Closing Date (as defined below) (with Purchaser being charged or credited for the Closing Date, as applicable):
(i) Seller shall be responsible for the payment of all general real estate, personal property taxesand ad valorem taxes due and payable prior to Closing. general real estate, assessments, rents, personal property and CAM expenses ad valorem taxes shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits the Closing Date on an accrual basis such that Seller shall be paid over to Buyer. Rents pay for all such taxes that become due and CAM expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods payable prior to the Close Closing Date, and shall provide a credit to Purchaser (based on One Hundred Five percent (105%) of Escrow the total of the taxes calculated using the most recent available assessed value, tax rate and equalization factor) for all such taxes that are attributable to the period prior to the Closing Date but which are collected by Buyer not yet due or payable, and Purchaser shall pay all such taxes that become due and payable from and after the Closing Date. Tax prorations shall be final as of Closing.
(ii) All charges for gas, electricity, sewer, trash, telephone, water and other utilities serving the Property shall be read and terminated as of midnight of the day prior to Closing whereupon Seller shall be retained by responsible for and shall pay for all such charges first accruing or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purpose. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any the period prior to Close the Closing Date.
(iii) Both paid and unpaid charges under the Surviving Service Contracts (if any), including any one-time or bonus payments under any cable or telecommunications contracts.
(iv) Unless expressly provided otherwise herein, such other items that are customary prorated in a purchase and sale of Escrowthe type contemplated hereunder shall be prorated as of midnight of the day immediately preceding the Closing.
(v) All amounts payable, owing or incurred in connection with the recipient Property shall promptly deliver a copy be prorated as of the Closing Date. All sums due for such tax xxxx accounts payable which are attributable to the other party, and not later than ten (10) days period prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, shall Closing Date will be paid by Seller, or if Seller has not received the bill or invoice therefor, or has received but not paid such bill or invoice, prior to the Closing Date, at Purchaser’s election, Purchaser will either (i) furnish to Seller such bills or invoices received after the Closing Date for payment by Seller (and Seller shall indemnify pay all other such bills or invoices received but not paid prior to Closing) and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. Purchaser will have no further obligation with respect thereto, or (ii) pay such bill or invoice on behalf of Seller and be entitled to reimbursement thereof by Seller on demand.
(vi) All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement prorations shall be prorated between Buyer and Seller final, except as their respective periods of ownership bears to the primary term of the new Lease subject, otherwise expressly provided in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3this Section 10(a) above.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Zoned Properties, Inc.)
Prorations. 6.7.1. Real property taxes(a) Rents, personal property taxesincluding, assessmentswithout limitation, percentage rents, and CAM all other income from the operation of the Property, if any, and any additional charges and expenses payable by tenants under Leases, and assessments and charges payable to and collectable by the owner of the Property under the Property Declarations, all as and when actually collected; real property taxes (based on Title Company estimates, in the event that real property taxes for the year of Closing are not fully ascertained as of the Closing Date) and assessments (on a cash basis); water, sewer and utility charges; and amounts payable under any Service Contracts to be assumed by Buyer at Closing; and any other ordinary and recurring expenses of the operation and maintenance of the Property and with respect to which Seller shall receive a credit at Closing in the amount of the prepaid or unamortized portion thereof), shall all be prorated through Escrow between as of 12:01 a.m. on the date of Closing (i.e., Buyer is entitled to the income and responsible for the expenses of the entire day of Closing and all subsequent periods, and Seller as of Close of Escrow. All security deposits shall be paid over is entitled to Buyer. Rents the income and CAM responsible for expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents attributable to all periods prior to the Close day of Escrow Closing), on the basis of a 365-day year. Buyer shall reimburse Seller for the tenant improvement costs, leasing commissions, legal fees and other expenses, and free rent and other concessions for which are Buyer is responsible, as provided in Section 7.2. All rents and income collected by Buyer or Seller after the Closing shall be retained applied and paid as provided in this Section 8.5(a). Buyer shall have no obligation to Seller to collect any such unpaid rents or other charges (but agrees to invoice same to the applicable tenant as otherwise provided below), and all rents and other charges collected shall be first applied to current rents and charges due, next to rents and charges past due (in reverse order to which they become past due) for the period after the Closing Date through the then current rent period, and lastly to rents and charges past due for the period prior to the Closing Date. If a tenant shall specifically designate a payment as being attributable to, or if it is readily ascertainable that a payment received from a tenant is attributable to a specific period of time or for a specific purpose, including, without limitation, for operating expenses or real estate tax payments which were not paid or were underpaid by such tenant or for reimbursement for work performed by Seller on the tenant’s premises, such payment shall be so applied provided no other amounts payable for the period from and after Closing are past-due. If there is no such designation or if not so readily ascertainable, any payment received from a tenant after Closing shall be deemed a payment of rent due after the Closing until the tenant is current on rents and sums due under the applicable Lease on or after the Closing, and then such payments shall be paid to Seller to the extent of any rent or other sums owing to Seller for periods prior to Closing. For a period of up to ninety (90) days after Closing, Buyer agrees to remit invoices prepared by Seller (in the name of Buyer) in order to xxxx items payable by tenant’s under Leases, but Buyer shall not be required to take any other action to collect such amounts due unless it chooses to take such action and Buyer may deduct the reasonable apportioned third-party costs of collection from any such amounts collected before remitting the balance due Seller. Seller retains the right to collect any such rents and other sums from tenants after Closing; provided, however, that Seller shall have no right to cause any such tenant to be evicted, to execute against the assets of such tenant required for operation in the Property, or to exercise any other landlord remedy against such tenant other than to xxx for collection. To the extent Seller collects rents and charges for Leases after the Closing Date, Seller agrees to hold all collections in trust, and to promptly turn over such collections to Buyer, and Buyer shall apply such funds between Buyer and Seller in the manner provided herein. Reconciliations of taxes, insurance charges and other expenses owed by tenants under Leases for the calendar year (or fiscal year if different from the calendar year) in which the Closing occurs shall be prepared by Buyer with the cooperation of Seller within 180 days following the end of such year in accordance with the requirements set forth in the Leases and as provided in this Section 8.5(a). For those Leases in which tenants pay a proportionate share of taxes, insurance charges or other expenses over a base year amount or expense stop or up to an expense cap, the proration between the parties of the income received from tenants over such base year amount or expense stop or up to an expense cap shall be calculated by multiplying the total reimbursement payable by the applicable tenant (after taking into account the applicable base year, expense stop or expense cap) for such applicable billing period by a fraction the numerator of which is the total expenses incurred by the applicable party (i.e. Seller or Buyer, as applicable) with respect to its applicable period of ownership with respect to such applicable billing items (to which such base year, expense stop or expense cap apply, but without regard to the amount of any base year, expense stop or expense cap amounts), and the denominator of which is the total amount of such expenses for the Property incurred by both Seller and Buyer combined for the entire calendar (or, if applicable, fiscal) year within such billing period and billing items and otherwise in accordance with this Section 8.5(a) (and after taking into account any estimated payments of rent actually collected by Seller and Buyer respectively for their respective period of ownership). By way of illustration but without limiting the foregoing, if: (i) the Closing occurs on June 1, 2016, (ii) during Seller’s period of ownership of the Property during the year 2016 (151 days), Seller incurred expenses of $450,000, (iii) during Buyer’s period of ownership of the Property during the year 2016 (214 days), Buyer incurred expenses of $500,000, (iv) total expenses for such year recovered from tenants under Leases is 33 $400,000 (e.g., $950,000 total expenses minus a total base year amount of $550,000), then Seller would be entitled to $165,479.45 of such income ($400,000/365 days = $1,095.89 per diem multiplied by 151 days) and Buyer would be entitled to $234,520.55 of such income ($1,095.89 per diem multiplied by 214 days), regardless of the actual amount of expenses actually incurred by each party (which would have instead resulted in Seller receiving $189,473.68 of such income and Buyer receiving $210,526.32 of such income). For Leases which do not have a base year amount or expense stop or expense cap on expense reimbursements, the proration between the parties of income received from tenants from reconciliations of expenses under the Leases shall be calculated by multiplying the total reimbursable expenses for each tenant by a fraction the numerator of which is the total expenses incurred by the applicable party (i.e. Seller or Buyer, as applicable) with respect to its applicable period of ownership with respect to such applicable billing items, and the denominator of which is the total amount of such expenses for the Property incurred by both Seller and Buyer combined for the entire calendar (or, if applicable, fiscal) year within such billing period and billing items and otherwise in accordance with this Section 8.5(a) (and after taking into account any estimated payments of rent actually collected by Seller and Buyer respectively for their respective period of ownership). If any Lease is in effect for less than an entire year, then such proration and calculation of expense shall only be with respect to the applicable billing period under the applicable Lease. Notwithstanding the above, (i) any amounts collected of rent or additional rent due to or from tenants with respect to Leases terminated before the Date of Closing shall be the sole obligation/benefit of Seller, and (ii) any amounts of rent or additional rent due to or from tenants with respect to Leases for which rent first commences on or after the date of Closing shall be the sole obligation/benefit of Buyer and shall not be subject to proration or adjustment under the above provisions. All adjustments set forth above shall be calculated on a tenant by Buyer tenant basis. In calculating prorations, no expenses shall be included within the numerator or denominator unless such expenses are reimbursable under the applicable Lease without giving effect to any lease provisions creating a base year, expense stop or expense cap with respect to the total amount of such expenses that are reimbursable to landlord. Notwithstanding anything herein to the contrary, except as provided in the second sentence of this paragraph, Seller shall be first applied solely responsible, at Seller's sole cost and expense, for all tenant reimbursements, payments, credits and reconciliations due tenants for the period prior to Closing based on funds collected by Seller prior to Closing (and for all reconciliation periods prior to the current reconciliation period in which the Closing Date occurs, as applicable), whether such amounts are determined to be due as a result of an audit exercisable by a tenant under a Lease that is exercised after Closing or otherwise, and Seller shall indemnify and defend and hold Buyer harmless from and against all costs, expenses, liabilities and credits that may be due or become due to tenants attributable to any rents then such prior periods (and for all reconciliation periods which ended prior to the Closing Date). In the event any tenants are due reimbursements, payments, credits or reconciliations attributable to Buyer and, if collected such prior periods prior to Closing and such credits are known to and not disputed at Closing by Seller, remitted Buyer shall receive a credit at Closing against the Purchase Price in the amount of such outstanding reimbursements, payments, credits or reconciliations due tenants and Buyer shall be responsible for paying same due tenants to the extent, but only to the extent, of the credit given Buyer for by Seller hereunder at Closing. This provision shall survive Closing without limitation as to time. The amount of any cash security deposits and pre-paid rents attributable to periods following the Closing, if any, held by Seller under Leases shall be credited against the Purchase Price (and Seller shall be entitled to retain such purposecash security deposits and such pre-paid rent). Seller will use commercially reasonable efforts (including payment of any reasonable issuer fees not otherwise payable by the applicable tenant) to cause any letters of credit held as security deposits to be transferred to, or reissued in, the name of Buyer at Closing. With respect to any such letters of credit held as security deposits that are not so transferred or reissued into the name of Buyer as of Closing, Seller shall continue to hold such letters of credit on behalf of Buyer and shall act as lawfully directed by Buyer following Closing with respect to any such letters of credit; provided, however, that Buyer shall defend, indemnify and hold harmless Seller from and against any and all claims, losses, damages, costs, expenses, obligations and liabilities (including, without limitation, court costs and reasonable attorneys’ fees and disbursements) incurred by Seller arising out of any action taken by Seller with respect to any such letter of credit in accordance with instructions as Buyer may direct. Seller shall have receive credits at Closing for the right to pursue amount of any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer utility or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx deposits with respect to the other party, and not later than ten (10) days prior Property to the delinquency date shown on extent such tax xxxx accounts are transferred to Buyer and Buyer receives the benefit of same. Buyer and Seller shall deliver cooperate to cause all utilities to be transferred into Buyer’s name and account, or, at the option of either party, to cause Seller’s existing accounts to be closed and to cause a new account to be opened in Buyer’s name, at the time of or immediately upon Closing in which event Seller shall be entitled to any refunds of any such utility or other deposits. Notwithstanding any provision above to the taxing authority their respective shares of such tax xxxxcontrary, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement utility charges (including, but not limited to, commissions water rates and sewer charges or rentals), if metered shall not be apportioned at Closing, but Seller shall cause all utility meters to be read not more than two (2) days before Closing Date, and Seller agrees to pay promptly after receipt all utility bills and charges accruing up to and including the day preceding the Closing Date and Buyer agrees to pay all charges from and after Closing. Seller and Buyer hereby agree that if any of the aforesaid prorations and credits are based on estimates, or cannot be calculated accurately on the Closing Date, or in the case of rents or other charges received from tenants or other assessments due to or payable by the owner of the Property under the Property Declarations, such amount have not been collected, then the same shall be calculated as soon as reasonably practicable after the Closing Date, or the date actual amounts or known, or the date such amounts have been collected, as applicable, and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall pay said sum to the other party within thirty (30) days thereafter. Any amounts not paid within such thirty (30) days after written demand by the other party (or any other amount due by one party to the other for lease renewals the period after Closing under this Agreement not paid within thirty (30) days after demand by the party to who payment is owed) shall bear interest from the date actually received by the payor until paid at the greater of (i) the rate of ten percent (10%) per annum or (ii) the prime rate (or base rate) reported from time to time in the “Money Rates” column or section of The Wall Street Journal as being the base rate on corporate loans at larger United States money center commercial banks plus two (2) percent. Upon request of either party, the parties shall provide a detailed and expansion optionsaccurate written statement signed by such party certifying as to the payments received by such party from tenants or third parties under the Property Declarations (but subject to proration hereunder) prior to or from and after Closing and to the manner in which such payments were applied, and shall make their books and records available for inspection by the other party during ordinary business hours upon reasonable advance notice.
(b) All title charges (including survey coverage and other endorsements and reinsurance charges to the Title Policy and the lender’s title policy, but excluding the basic premium for the Title Policy), survey costs and recording fees shall be paid by Seller, and Buyer at Closing. Seller shall indemnify be responsible for the basic premium for the Title Policy. Any escrow or closing fees shall be split equally between Seller and hold Buyer harmless for lease commission claims brought against Buyer. The parties will execute and deliver any required transfer or other similar tax declarations to the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after appropriate governmental entity at Closing.
(c) Any percentage rent received in the date of this Agreement year in which Closing occurs shall be prorated between Buyer based upon the number of days of Seller’s and Seller as their Buyer’s respective periods of ownership bears to the primary term of the new Lease subjectProperty, in all events, regardless of whether such sales occur during the portion of the lease year allocable to the prior approval Seller’s and Buyer’s respective ownership of said Leases as herein provided by Buyer pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless (d) The provisions of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to this Section 8.5 shall survive the Close of Escrow and which are in any way related to the PropertyClosing.
Appears in 1 contract
Prorations. 6.7.112.1. Real property taxesRents (exclusive of delinquent rents, but including prepaid rents); refundable security deposits (which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing); water and other utility charges; fuels; prepaid operating expenses; management fees in the amount of 5%; real and personal property taxestaxes prorated on a "net" basis (i.e. adjusted for all tenants' liability, assessmentsif any, rents, and CAM for such items); operating expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. All security deposits shall be paid over to Buyer. Rents and CAM expenses shall be approved which are reimbursable by Buyer prior to Close of Escrow. Any delinquent rents attributable to periods the tenants for the period prior to the Close of Escrow and which are collected Closing Date less any amount previously paid by Buyer or Seller the Tenants shall be retained by or paid credited to Seller; provided, however, that any amounts collected by Buyer or Seller and other similar items shall be first applied to any rents then due to Buyer andadjusted ratably as of 11:59 p.m. on the Closing Date, if collected by Seller, remitted to Buyer for such purpose. Seller shall have and credited against the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction balance of the Tenant by unlawful detainer or other meanscash due at Closing. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx Assessments payable in installments which are due subsequent to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion options, Closing Date shall be paid by Purchaser. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. If the amount of current real estate or personal property taxes is not then ascertainable, the adjustment thereof shall be on the basis of 105% of the most recent ascertainable tax bill(s). All prorations will be xxxal except as to delinquent rent referred to in Paragraph 12.2 below.
12.2. All rents collected by Purchaser shall first be applied to current rent due from the applicable tenant and then to any rent in arrears for said tenant at Closing ("Delinquent Rent"). Purchaser shall use its best efforts to collect all amounts which, upon collection, would constitute Delinquent Rents hereunder to Seller. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, of Purchaser's books and records to verify the accuracy of the Delinquent Rents reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Delinquent Rents and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefromcost of performing Seller's audit. All leasing commissions and tenant improvement costs for new Leases executed after the date Paragraph 12.2 of this Agreement shall be prorated between Buyer survive the Closing and Seller as their respective periods of ownership bears to the primary term delivery and recording of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3deed.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale (Balcor Equity Properties LTD-Viii)
Prorations. 6.7.1. Real property taxesSellers and Purchaser agree to adjust, as of 11:59 p.m. on the day immediately preceding the Closing Date (the “Closing Time”), the following (collectively, the “Proration Items”) real estate and personal property taxestaxes and assessments for the year in which Closing occurs, assessmentsutility bills (except as hereinafter provided), rentscollected Rentals (subject to the terms of (b) below), expenses under the Permitted Exceptions, and CAM expenses under Service Contracts assumed by Purchaser at Closing payable by the owner of the Property (on the basis of a 365 day year, actual days elapsed). Sellers will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Closing Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Closing Time. Such preliminary estimated Closing prorations shall be prorated through Escrow between Buyer set forth on a preliminary closing statement to be prepared by Sellers and Seller as submitted to Purchaser for Purchaser’s approval (which approval shall not be unreasonably withheld) two (2) Business Days prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Sellers and delivered to the Title Company for purposes of Close of Escrowmaking the -33- preliminary proration adjustment at Closing subject to the final cash settlement provided for below. All security deposits The preliminary proration shall be paid over at Closing by Purchaser to BuyerSellers (if the preliminary prorations result in a net credit to Sellers) or by Sellers to Purchaser (if the preliminary prorations result in a net credit to Purchaser) by increasing or reducing the cash to be delivered by Purchaser in payment of the Purchase Price at the Closing. Rents If the actual amounts of the Proration Items are not known as of the Closing Time, 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 CAM expenses a final cash settlement will be made between Sellers and Purchaser. No prorations will be made in relation to insurance premiums (except to the extent covered by the proration of Operating Expense Recoveries), and Sellers’ insurance policies will not be assigned to Purchaser. Final readings and final xxxxxxxx for utilities will be made if possible as of the Closing Time, in which event no proration will be made at the Closing with respect to utility bills (except to the extent covered by the proration of Operating Expense Recoveries). Sellers will be entitled to all deposits presently in effect with the utility providers, and Purchaser will be obligated to make its own arrangements for deposits with the utility providers. Seller shall cooperate in good faith with Purchaser to facilitate the transfer of all utilities to Purchaser at and/or immediately following the Closing. A final reconciliation of Proration Items shall be approved made by Buyer prior Purchaser and Sellers on or before November 30, 2016 (herein, the “Final Proration Date”). The provisions of this Section 10.4 will survive the Closing until the Final Proration Date has occurred, and in the event any items subject to Close of Escrow. Any delinquent rents attributable to periods proration hereunder are discovered prior to the Close of Escrow and which are collected by Buyer or Seller Final Proration Date, the same shall be retained promptly prorated by or paid to Seller; provided, however, that any amounts collected by Buyer or Seller shall be first applied to any rents then due to Buyer and, if collected by Seller, remitted to Buyer for such purposethe parties in accordance with the terms of this Section 10.4. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx Notwithstanding anything to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the contrary provided in this Agreement including, but not limited to, commissions this Section 10.4(a), Sellers and Purchaser hereby agree to use the following, estimated 2016 real estate taxes and assessments for lease renewals and expansion options, shall be paid by Seller, and Seller shall indemnify and hold Buyer harmless purposes of the proration of same at Closing: (x) $470,000.00 for lease commission claims brought against the Shoppes at Parkland Real Property arising therefrom. All leasing commissions and tenant improvement costs the Shoppes at Parkland Improvements and (y) $180,000.00 for new Leases executed after the date of this Agreement shall be prorated between Buyer University Palms Real Property and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer pursuant to Paragraph 7.3University Palms Improvements.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of this Agreement specifically become the obligation of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Property.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Preferred Apartment Communities Inc)
Prorations. 6.7.1. Real Except as otherwise provided herein, rent, receivables, other amounts due KEM, and all amounts payable by KEM such as property taxes, personal property taxes, assessments, rents, accounts payable and CAM other expenses shall be prorated as of the Closing Date. Seller and/or KEM, as applicable, shall pay or cause to be paid such amounts or an appropriate adjustment shall be made in the cash received by Seller at Closing or Seller and/or KEM shall cause sufficient working capital to remain in the accounts of KEM to pay such items when due. Any monies held in bank accounts of the KEM as of the Closing Date in excess of the amounts needed to satisfy Seller’s or KEM’s obligations under the preceding sentence, will be distributed by KEM to Seller through Escrow between on the Closing Date. Prorations and adjustments contemplated under this Section 21.2 shall be subject to post-Closing adjustments as necessary to reflect later relevant material information not available at Closing (including any material liabilities which were to be prorated hereunder discovered after Closing but relating to the period prior to or including the Closing and any material adjustments required pursuant to Section 21.4(f), below) and to correct any material errors made at Closing with respect to such apportionments, and the Party receiving more than it was entitled to hereunder (the “Reimbursing Party”) shall reimburse the other Party (the “Reimbursed Party”) in the amount of such over payment within thirty (30) days after receiving written demand thereof from the Reimbursed Party. Such written demand by the Reimbursed Party shall be accompanied by reasonable proof of the Reimbursed Party’s right to payment. Both the Reimbursed Party and Reimbursing Party agree to cooperate in good faith to resolve any disputes regarding such adjustments. Notwithstanding the foregoing, such apportionments shall be deemed final and not subject to further post-Closing adjustment if no adjustments have been requested within six months (6) months after the Closing Date. Buyer and Seller as further agree that (a) all rent prepaid by the County of Close of Escrow. All security deposits Riverside under that certain Communications Tower Site Lease Agreement shall be paid over transferred by KEM to Buyer. Rents Seller prior to Closing and CAM expenses will be retained by Seller, (b) the Settlement Agreement among KEM, Edison Construction, Inc. and Xxxxxxxx Corporation, dated January 15, 2015, and the rights thereunder are expressly excluded from the KEM Assets and shall be approved by Buyer prior assigned and transferred to Close of Escrow. Any delinquent rents attributable to periods prior Seller or EMMR at Closing pursuant to the Close Assignment of Escrow Contracts, and which are collected (c) all rent paid to KEM by Buyer or Seller FPN under the FPN Lease shall be retained by or paid KEM at Closing without proration and not distributed to Seller; provided. For the purposes of Sections 21.2 and 2.4, howeverany information, that any amounts collected by Buyer adjustment, error or Seller shall be first applied to any rents then due to Buyer andliability resulting in an expenditure or change of more than five thousand dollars ($5,000), if collected by Seller, remitted to Buyer for such purpose. Seller shall have individually or in the right to pursue any Tenant for delinquent rent, but shall not (a) cause Tenant to be delinquent for their current rent or become financially unstable or (b) have the right to seek eviction of the Tenant by unlawful detainer or other means. Tax and assessment prorations shall be based on the latest available tax xxxx. If after Close of Escrow either party receives any further or supplemental tax xxxx relating to any period prior to Close of Escrow, the recipient shall promptly deliver a copy of such tax xxxx to the other party, and not later than ten (10) days prior to the delinquency date shown on such tax xxxx Buyer and Seller shall deliver to the taxing authority their respective shares of such tax xxxx, prorated as of Close of Escrow. All prorations shall be based on a 360-day year.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Real Property entered into prior to execution of the Agreement including, but not limited to, commissions for lease renewals and expansion optionsaggregate, shall be paid by Sellerdeemed “material”. Furthermore, the Burn Pit Holdback and Seller shall indemnify and hold Buyer harmless for lease commission claims brought against the Real Property arising therefrom. All leasing commissions and tenant improvement costs for new Leases executed after the date of this Agreement Transformer Holdback shall be prorated between Buyer retained in Escrow at Closing and Seller as their respective periods of ownership bears to the primary term of the new Lease subject, in all events, to the prior approval of said Leases as herein provided by Buyer distributed pursuant to Paragraph 7.3.
6.7.3. Seller agrees to indemnify and hold Buyer harmless from any and all liabilities, claims, demands, suits, and judgments, of any kind or nature, including court costs and reasonable attorney fees (except those items which under the terms of Section 21.11 below. The provisions of this Agreement specifically become Section 21.2 shall expressly survive the obligation Closing for a period of Buyer), brought by third parties and based on events occurring on or before the Close of Escrow and which are in any way related to the Propertyeighteen (18) months.
6.7.4. Buyer agrees to indemnify and hold Seller harmless of and from any and all liabilities, claims, demands, suits and judgments, of any kind or nature, including court costs and reasonable attorneys fees, brought by third parties and based on events occurring subsequent to the Close of Escrow and which are in any way related to the Property.
Appears in 1 contract
