Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein. (a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined). (b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof. (c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes. (d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 4 contracts
Samples: Auction Real Estate Purchase and Sale Contract, Auction Real Estate Purchase and Sale Contract, Auction Real Estate Purchase and Sale Contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. Except as set forth in Section 14(b) hereinbelow, all such prorations will be final and not adjustable. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the any prorations made at Closing under Section 14.(a), above, including, without limitation, as to (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 4 contracts
Samples: Auction Real Estate Purchase and Sale Contract, Auction Real Estate Purchase and Sale Contract, Auction Real Estate Purchase and Sale Contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Except for insurance premiums, at the Closing, all normal and customarily proratable items, prorated items including, without limitation, all maintenance fees and assessments, standby fees and ad valorem taxes and assessments assessed against for the current year (based on the most recent tax statement[s] for the Property, prepaid rents adjusted for the most current tax rates and other expenses appraised value), and fees payable under any Leases on utility services being continued to the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of 11:59 p.m. on the Closing Date (the “Cut-Off Time”). Seller shall be charged for and credited with all prorated items up to and including the Closing Date and Purchaser shall be charged for and credited with all of same after the Closing Date. In the event any amount to be prorated is unknown at the Closing, Seller being charged the Title Company’s best estimate of the amount therefor shall be used at the Closing, and credited thereafter, the Parties agree to adjust such prorations within ten (10) days after receipt of written notice, accompanied by copies of the statement(s) or invoice(s) therefor, from the Party receiving same. The Parties agree to undertake a final accounting for all prorated items (except ad valorem taxes, the proration of same up to such date and Purchaser being charged and credited for all which shall occur within ten (10) days after receipt of same on and after such date. If the assessments for any such proratable items tax statements for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of which the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date occurs) within forty-five (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (6045) days after the Closing Date.
(b) Standby fees, or such other date as may be agreed upon in writing by Seller ad valorem taxes, maintenance fees, and Purchaser in order assessments with respect to have in hand the tax or any other assessments for the Property for the year of in which the Closing or for any other reason (in any eventoccurs shall, the “Reconciliation Date”)if not paid at Closing, Seller hereby agrees to cause to be paid to Purchaser, or assumed by Purchaser and Purchaser hereby agrees to pay the same provided an applicable charge has been made against Seller on the closing statement at Closing.
(c) All base rent and additional rent actually received and other income actually received under the Lease in effect on the Closing Date shall be prorated as of the Cut-Off Time. Purchaser shall receive a credit (but without duplication) at Closing for any prepaid rents to the extent the same are applicable to the period following the Cut-Off Time. Non-delinquent rent collected by Seller after Closing attributable to periods from and after the Cut-Off Time shall be promptly remitted to Purchaser. Delinquent rent collected by Seller or Purchaser after the Cut-Off time shall be delivered by the recipient as follows: within fifteen (15) days after the receipt thereof, Seller and Purchaser agree that all rent received by Seller or Purchaser shall be applied first to then current rents, and then to delinquent rents for periods after the Cut-Off Time and then to delinquent rents for periods prior to the Cut-Off Time. Notwithstanding anything herein to the contrary, in no event shall Seller, after the Cut-Off Time, institute or commence collection actions or activities or any legal action against any tenant occupying space at the Property.
(d) All real estate taxes due and owing as of the Cut-Off Time, and all installments of assessments for public improvements or other matters or facilities which constitute a lien against the Property and are due and owing as of the Cut-Off Time, and all penalties and interest thereon, shall be paid by Seller on or before the Closing Date. Real estate taxes and assessments shall be prorated as of the Cut-Off Time. Purchaser shall receive a credit for any accrued but unpaid (and not yet due and payable) real estate taxes and assessments applicable to any period before the Cut-Off Time. If the amount of any such taxes and assessments has not been determined as of Closing, such credit shall be based on one hundred percent (100%) of the most recent ascertainable tax bills. Such taxes shall be re-prorated upon issuance of the final tax bxxx.
(e) Except for those utility charges payable by Tenant in accordance with the Lease, Seller shall pay all utility charges attributable to the Property until the Cut-Off Time and Purchaser shall pay all utility charges attributable to the Property from and after the Cut-Off Time. If final readings have not been taken, estimated charges shall be prorated between the parties and appropriate credits given. In the event such proration at Closing is based on estimated charges, after Closing, at such time as final bills for such water, sewer, and utility charges, common area maintenance charges, and other operating expenditures are available, the parties shall adjust the amounts apportioned at Closing based on the charges shown on the final bills, and Seller or Purchaser, as the case may be, a payment in an amount which reflects (i) net adjustments shall pay to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property other whatever amount shall be necessary to compensate for the year difference within fifteen (15) days after receipt of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofsuch final bills.
(cf) Notwithstanding anything else to the contrary in this Section 14Premiums for hazard, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e.liability, "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall any other insurance will not be prorated and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies terminate Seller’s insurance coverage with respect to the PropertyProperty immediately after the Closing Date. Purchaser is solely responsible for obtaining Purchaser’s own insurance coverage from and after the Closing Date.
(g) Any security deposit described by the Lease (and interest thereon if required by law or contract to be earned thereon) shall be transferred or credited to Purchaser at Closing. As of Closing, Purchaser shall assume Seller’s obligations related to Security Deposits which are actually transferred from Seller to Purchaser or for which Purchaser receives a credit.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Assisted 4 Living, Inc.), Purchase and Sale Agreement (Assisted 4 Living, Inc.), Purchase and Sale Agreement (Assisted 4 Living, Inc.)
Prorations. The provisions following items relating to the Assets, the ownership of this Section 14 shall survive the PSE Colstrip Interests, and the operation of the Colstrip Facilities will be allocated pro rata per diem for the tax year that includes the date of the Closing, with Seller liable for such items to the extent they are allocable to the period prior to the date of the Closing and not be merged therein.Purchaser liable for such items to the extent they are allocable to periods beginning with and subsequent to the date of the Closing:
(a) At ClosingProperty Taxes on or with respect to the Assets.
(b) Rents, all normal and customarily proratable itemsadditional rents, includingTaxes, without limitation, all ad valorem taxes and assessments assessed against to the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred extent normally adjusted in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Propertysimilar transactions, and any dues other items payable by Seller under the Real Property Leases and assessments the Business Contracts.
(c) The amount of home or condominium owners’ associationsrents, shall Taxes and charges for sewer, water, telephone, electricity and other utilities relating to 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 prorated between Purchaser settled and Seller paid as of the Closing Datedate of the Closing. At least ninety (90) days prior to the date of the Closing, Seller being charged and credited for all will provide Purchaser with a reasonably detailed schedule showing a calculation of same up to such date and Purchaser being charged and credited for all of same the estimated prorations as if the Closing were occurring on and after such date. If the assessments for any such proratable items for Closing shall occur before a real estate Tax rate is fixed, the year apportionment of Closing have not yet been made, then any such prorations Taxes shall be based upon the prior year’s assessments. No prorations Tax rate for the preceding year applied to the latest assessed valuation and such Taxes shall be made in relation to rents not collected as reprorated upon the request of the Closing DateSeller, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On one hand, or Purchaser, on the first business day immediately prior to the day which is other hand, made within sixty (60) days after the Closing Date, or date that the actual amounts become available. Seller and Purchaser agree to furnish each other with such documents and other date records as may be agreed upon in writing by Seller and Purchaser reasonably requested in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees confirm all adjustment and proration calculations made pursuant to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes1.06.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Pp&l Resources Inc), Asset Purchase Agreement (Puget Sound Energy Inc), Asset Purchase Agreement (Pp&l Inc)
Prorations. The provisions of this Section 14 Utility charges, rental payments and charges and similar ---------- proratable items which are attributable to the Inventory and the Acquired Assets shall survive Closing and not be merged therein.
(a) At Closingapportioned between the Buyer, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Propertyone hand, and any dues and assessments of home or condominium owners’ associationsthe Sellers, shall be prorated between Purchaser and Seller on the other hand, as of the Closing Date. Any item which relates to the period prior to or on the Closing Date shall be apportioned to the Sellers, Seller being charged and credited for all of same up any such item which relates to such date and Purchaser being charged and credited for all of same on and the period after such datethe Closing Date shall be apportioned to the Buyer. If Notwithstanding the assessments foregoing, the Sellers shall be responsible for any such proratable items property taxes on the Inventory and the Acquired Assets for the tax year of including the Closing have not yet been madeDate. The Sellers shall, then any such prorations shall be based upon the no later than five days prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser prepare a preliminary statement (the "Preliminary Statement") in writing of the amount of the adjustments to be made hereunder and to be included in the Purchase Price adjustment made pursuant to Section 3.7. The Preliminary Statement shall make a commercially reasonable attempt be certified by the Sellers' Chief Financial Officer as true and correct and as having been prepared in accordance with the Sellers' books and records. The Purchase Price to collect be paid at Closing shall be adjusted either upward or downward, as applicable, based on the same for Seller's benefit after Closingamount of such Preliminary Statement; provided, but however, that if any upward adjustment to the -------- ------- Purchase Price would be in excess of Twenty-Five Thousand Dollars ($25,000), the Buyer shall not be required pay such adjustment unless and until the Buyer shall have verified and agreed to initiate legal proceedings in the amount of such attemptupward adjustment, which verification and such collections, if any, agreement shall be accounted for between Purchaser made no later than five days prior to the Closing Date. If the Buyer fails to so agree with any item in the Preliminary Statement prepared by the Seller, then any items on which the Buyer has so failed to agree shall remain open and Seller on be determined in conjunction with the Reconciliation Date preparation of the Final Statement (as hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Cellstar Corp), Asset Purchase Agreement (Cellstar Corp), Asset Purchase Agreement (Cellstar Corp)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against All payments under or pursuant to the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Assigned Contracts or otherwisethe Assigned Facility Leases and utilities expenses for the Transferred Facilities relating to periods both before and after the Closing Date, including, without limitation, all utilities servicing whether payable before or after the Property, and any dues and assessments of home or condominium owners’ associationsClosing Date, shall be prorated between Purchaser the Buyers, on the one hand, and Seller the Sellers, on the other hand, on the basis of a 365-day year as of the Effective Time (collectively, the “Prorated Charges”). With respect to any products sold (or services rendered) to the Sellers pursuant to the Assigned Contracts or other obligations pursuant to which a Seller purchases products (for example, purchase orders), the Buyers and the Sellers shall use their respective reasonable best efforts to arrange for vendors to xxxx the appropriate Sellers directly on or prior to the Closing Date, Seller being charged Date and credited for all of same up to such date and Purchaser being charged and credited for all of same on and the appropriate Buyers directly after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date. Notwithstanding anything to the contrary contained in this Agreement, but Purchaser shall make a commercially reasonable attempt amounts due for supplies received from or services rendered by third-party vendors to collect the same for Seller's benefit after Closing, but shall not be required Sellers prior to initiate legal proceedings in such attempt, and such collections, if any, the Effective Time shall be accounted for between Purchaser the account of and Seller on paid by the Reconciliation Date (hereinafter defined)Sellers, except to the extent such amounts are Assumed Liabilities as contemplated in Section 1.03, which shall be the sole responsibility of the Buyers.
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing DateAny ad valorem, use, real and personal property and similar Taxes, installments or special assessments arising from, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any eventrelating to, the “Reconciliation Date”)Purchased Assets or the conduct of the Business, Seller hereby agrees to cause to be paid to Purchaser, which become due and payable on or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on after the Closing Date and subsequently collected by Purchaserrelate to a Straddle Tax Period (collectively, the “Apportioned Obligations”), shall be prorated and adjusted between the Buyers, on the one hand, and (b) any savings resulting from any tax abatements the Sellers, on the Property for other hand, as of the year of Closing resulting from Effective Time on a challenge brought by either party hereto per diem basis and the costs or expenses incurred Sellers shall be responsible for and, in any case where payment to the applicable taxing authority is to be made by the challenging party in that regardBuyers, shall pay to the Buyers, an amount equal to the Taxes allocable to the portion of such Straddle Tax Period ending as of the Effective Time at least ten (10) days prior to the date such Taxes become due and (ii) any costs payable. Subject to the foregoing, the Buyers shall prepare and expenses incurred by Purchaser under Section 32.(b)(ii) hereoffile all Tax Returns related to the Apportioned Obligations after providing BioScrip a reasonable opportunity to review and comment upon the same.
(c) Notwithstanding anything else The Buyers and the Sellers shall cooperate in good faith to resolve any dispute with respect to prorations. In the event the Buyers, on the one hand, and the Sellers, on the other hand, are unable to resolve such dispute within twenty (20) days after the date such dispute arose (the “Resolution Period”), the Buyers, on the one hand, and the Sellers, on the other hand, shall submit the items remaining for resolution in writing, together with written summaries prepared and submitted by the Sellers, on the one hand, and the Buyers, on the other hand, within thirty (30) days following the end of the Resolution Period, to an Independent Accounting Firm. The Independent Accounting Firm shall be instructed to, within 20 days of such submission, resolve any differences between the Buyers and the Sellers based solely upon the written summaries submitted to the contrary Independent Accounting Firm in accordance with the preceding sentence, and, in reaching a decision on each item of dispute, the Independent Accounting Firm’s position shall be limited to either the Sellers’ or the Buyers’ position set forth in such written summaries on each disputed item. Such resolution shall, in the absence of manifest error, be final, binding and conclusive upon each of the parties to this Agreement. The Buyers and the Sellers agree that the Independent Accounting Firm must agree to the time periods set forth in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.1.08
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (BioScrip, Inc.)
Prorations. The provisions Except as otherwise provided herein, the Buyer, by virtue of this Section 14 its obligation specified in the Time Brokerage Agreement executed even date herewith, shall survive be entitled to all income earned prior to and after the Closing Date and not shall similarly be merged thereinresponsible for reimbursement of all liabilities and obligations incurred or payable in connection with the operation of the station from the date of the Time Brokerage Agreement to the Closing Date and thereafter.
(a) At ClosingFor reimbursement, all normal real and customarily proratable items, including, without limitation, all ad valorem personal property taxes and assessments assessed against utility charges relating to the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).Station; and
(b) On the first business day immediately prior to the day which is sixty For reimbursement, FCC annual regulatory fees payable in 2001. Within thirty (6030) days after the Closing DateClosing, or such other date as may be agreed upon Buyer shall deliver to Seller a statement setting forth in writing by Seller reasonable detail the basis for prorations pursuant to this Section, and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to Buyer shall pay to Seller, or Seller shall pay to Buyer, as the case may be, any net amount due as the result of the proration statement (or, if there is a payment dispute, the undisputed amount thereof. If Seller disputes Buyer's determinations, or, if at any time after delivery of Buyer's statement of determinations any party determines that any item included in the proration is inaccurate or that an amount which reflects (i) net adjustments additional item should be included in the prorations, the parties shall confer with regard to the prorations matter and an appropriate adjustment and payment shall be made at Closing under Section 14.(a)as agreed upon by them or, aboveif they are unable to resolve the matter, includingby a firm of independent certified public accountants mutually agreeable to the parties, without limitationwhose decision on the matter shall be binding and whose fees and expenses shall be borne equally by them. Under the supervision of Buyer, (a) any and Seller shall, in a manner consistent with past practices, collect all rents delinquent and unpaid on accounts receivable after the Closing Date and subsequently collected by Purchasershall promptly pay all commissions, bonuses and other sales related expenses, and (b) any savings resulting from any tax abatements on the Property for the year shall provide Buyer with an accounting of Closing resulting from a challenge brought by either party hereto all collected and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser uncollected accounts receivable. Buyer shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect obligation to the Propertypursue such collections.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Nassau Broadcasting Corp), Asset Purchase Agreement (Nassau Broadcasting Corp)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingFor purposes of determining the Purchase Price, all normal personal property and customarily proratable itemsreal property Taxes, includingfees with respect to any Transferable Permits, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on leases of real or personal property, or other similar expenses, that are not due or assessed until after the Property, prepaid and accrued Effective Time but unpaid expenses incurred which are attributable in connection with whole or in part to any period commencing prior to the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the PropertyEffective Time, and any dues and assessments other amounts that by the terms of home or condominium owners’ associationsthis Agreement are to be allocated between the Parties, shall will be prorated between Purchaser and Seller as of the Closing DateEffective Time, with Seller being charged liable to the extent such items relate to any period prior to the Effective Time, and credited for all of same up Buyer liable to the extent such date and Purchaser being charged and credited for all of same on items relate to any period from and after such datethe Effective Time. If the assessments for any such proratable items for actual amounts to be prorated are not known, Seller shall include an itemized estimate in the year of Closing have not yet been made, then any such prorations shall be Adjustment Statement based upon the prior year’s most recent available rates, assessments, valuations, or other data, and the Parties shall adjust the amounts paid at Closing to reflect such prorations. No Any prorations shall be made in relation so as to rents not collected as avoid duplication of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attemptany amounts, and such collections, if any, shall will be accounted for between Purchaser and Seller on adjusted to properly take into account any amounts thereof used in determining the Reconciliation Date (hereinafter defined)Purchase Price.
(b) On The proration of all items under this Section 3.4 will be recalculated by Buyer within a reasonable period of time following the first business day immediately prior date upon which the actual amounts become available to Buyer. Buyer will notify Seller of such recalculated amounts, and will provide Seller with all documentation relating to such recalculations, including tax statements and other notices from third parties. The Parties will make such payments to each other as are necessary to reconcile any estimated amounts prorated as of the day which is sixty (60) days after Effective Time with the Closing Date, or final amounts to be prorated. Seller and Buyer agree to furnish each other with such documents and other date records as may be agreed upon in writing by Seller and Purchaser reasonably requested in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees confirm all proration calculations made pursuant to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes3.4.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Algonquin Power & Utilities Corp.), Asset Purchase Agreement (Atmos Energy Corp)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAll payments under or pursuant to the Assigned Contracts relating to periods on or prior to the Closing Date, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against whether or not payable after the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associationsClosing Date, shall be prorated between Purchaser Buyer and Seller Sellers on a prorated basis, on the basis of a 365-day year and the number of days elapsed as of the Closing Date. With respect to any products sold (or services rendered) pursuant to the Assigned Contracts or other obligations pursuant to which Sellers purchase product (for example, Seller being charged purchase orders), Sellers and credited Buyer shall use reasonable best efforts to arrange for all of same up vendors to such date xxxx Xxxxxxx directly for periods on or prior to the Closing Date and Purchaser being charged and credited Buyer directly for all of same on and periods after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date. Notwithstanding anything to the contrary contained in this Agreement, but Purchaser shall make a commercially reasonable attempt amounts due for supplies received from or services rendered by third-party vendors to collect Sellers on or prior to the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, Closing Date shall be accounted for between Purchaser the account of and Seller on the Reconciliation Date (hereinafter defined)paid by Sellers.
(b) On After the first business day immediately prior Closing, any ad valorem, use, real and personal property and similar Taxes, installments or special assessments arising from, or relating to, the Purchased Assets or the conduct of the Business, which become due and payable on or after the Closing Date and relate to the day which is sixty (60) days periods both before and after the Closing Date, or such other date shall be prorated and adjusted between Sellers and Buyer as may of the Closing Date on a per diem basis and Sellers shall be agreed upon in writing by Seller responsible for and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as Buyer the case may be, a payment in an amount which reflects (i) net adjustments portion of such amounts allocable to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid period or portion thereof ending on the Closing Date and subsequently collected by Purchaser, and for which payment is due after the Closing Date at least ten (b10) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else business days prior to the contrary in this Section 14, if the Property has been assessed for property tax purposes at date such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes Taxes become due and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxespayable.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Seracare Life Sciences Inc), Asset Purchase Agreement (Seracare Life Sciences Inc)
Prorations. Except as may be otherwise expressly provided herein, all revenues, income and expenses (including utility expenses and credit card adjustments) of the Property with respect to the period prior to 12:01 a.m. on the Closing Date (but only including 50% of that 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 Property with respect to the 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 after the Closing Date) shall be for the account of Buyer. Seller shall deliver to Buyer the cash on hand at the Hotel on the Closing Date (except that cash which constitutes Seller’s 50% share of the room revenues). Only real property taxes and assessments and personal property taxes will be prorated inside of Escrow on the settlement statement; all other prorations shall be made outside of Escrow, in accordance with local custom in San Diego County, California, 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 or after the Closing Date and may include, but not be limited to, 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 the tax year in which Closing occurs, a re-adjustment shall occur, and the 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 the other party upon receipt of the invoice. Such invoice shall be accompanied by reasonable substantiating evidence. The provisions of this Section 14 5.3 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance delivery of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)Deed.
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Apple REIT Seven, Inc.), Purchase and Sale Agreement (Apple REIT Seven, Inc.)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingEach Purchaser and Seller agree that, except as otherwise specifically provided in this Agreement, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Propertyordinary, and any dues recurring items normally accrued or charged to the STP Owners or otherwise normally accrued or incurred by Seller, including those listed below (but excluding all Taxes), relating to the business and assessments operation of home or condominium owners’ associationsthe Generation Facility, shall be prorated between Purchaser and Seller charged as of the Closing Date, without any duplication of payment under the Generation Facility Contracts, with Seller being charged to be responsible for such items of operating expense and credited to receive the benefit of such items of operating revenue to the extent such items relate (or are apportionable) to any time periods prior to the Closing Date, and each Purchaser to be responsible for all its Proportionate Share of same up such items of operating expense and to receive the benefit of its Proportionate Share of such date and Purchaser being charged and credited for all items of same on operating revenue to the extent such items relate to periods from and after such date. If the assessments for Closing Date (measured in the same units used to compute the item in question and otherwise measured by calendar days); provided that notwithstanding anything to the contrary herein, no Purchaser shall pay any such proratable items amount under this Section 3.4 that constitutes an Excluded Liability:
(i) the fees assessed on electricity generated at the Generation Facility pursuant to the DOE Standard Contract, as provided in Section 302 of the Nuclear Waste Policy Act and 10 C.F.R. Part 961, as amended from time to time, for the year applicable period during which the Closing occurs;
(ii) subject to and without limiting the generality of Section 2.3(d) and Section 2.4(j), Department of Energy Decommissioning and Decontamination Fees for the applicable period during which the Closing occurs;
(iii) retrospective adjustments and policyholder distributions for the applicable period during which the Closing occurs with respect to any Generation Facility Insurance Policies to the extent such adjustments occur or distributions are made within twelve (12) months of Closing have or, if earlier, ninety (90) days after the end of the applicable policy year that includes the Closing Date; and
(iv) documented operating, maintenance and other expenses incurred or accrued in any period prior to the Closing Date (not yet been madeincluding Capital Expenditures or any Excluded Liabilities), then but only to the extent that the amount of such expenses is determined within twelve (12) months of Closing or, if earlier, ninety (90) days after the end of the calendar year during which the Closing occurs.
(b) Notwithstanding any other provision of this Agreement,
(i) Texas Genco and Seller agree that Property Taxes (excluding all other Taxes) assessed on Texas Genco's Purchased Interest for the calendar year in which the Closing occurs shall be prorated as between Texas Genco and Seller based upon the ratio of the number of days in the calendar year in which the Closing occurs beginning with January 1 through the day prior to the Closing Date divided by the total number of days in such prorations calendar year multiplied by the amount of Property Taxes paid (or to be paid) by Texas Genco for the calendar year in which Closing occurs. Property Taxes prorated under this Section shall be based upon the prior year’s assessmentsstatus of the property as used by Seller. No prorations If Texas Genco or any successor-in-interest to Texas Genco changes the usage of such property after Closing and such change in usage results in additional Property Tax liabilities attributable to such property (as described in Section 14.2 of this Agreement or otherwise), such additional Property Tax liabilities will not be subject to proration hereunder and Texas Genco (or its successor-in-interest) shall be made responsible for the payment thereof; and
(ii) CPS and Seller agree that Property Taxes (excluding all other Taxes) assessed on the Purchased Assets for the calendar year in relation which the Closing occurs shall be prorated to rents not collected as Seller based upon the ratio of the number of days in the calendar year in which the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect occurs beginning with January 1 through the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) Closing Date divided by the total number of days after in such calendar year multiplied by the Closing Date, or such other date as may be agreed upon in writing amount of Property Taxes required by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause applicable Law to be paid by either Party for the calendar year in which Closing occurs. Notwithstanding the previous sentence, if the provisions of Title 1, Texas Tax Code Section 26.11 apply to PurchaserCPS for the calendar year in which the Closing occurs, Property Taxes will be apportioned to Seller in accordance with Section 26.11(a) of this code. Property Taxes prorated under this section shall be based upon the status of the property as used by Seller. If CPS or Purchaser hereby agrees any successor-in-interest to pay CPS changes the usage of such property after Closing and such change in usage results in additional Property Tax liabilities attributable to Seller, such property (as the case may be, a payment described in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a14.2 of this Agreement or otherwise), above, including, without limitation, such additional Property Tax liabilities will not be subject to proration hereunder and CPS (aor its successor-in-interest) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property shall be responsible for the year of Closing resulting from a challenge brought by either party hereto payment thereof. Seller will cooperate with CPS in obtaining Tax treatment available to CPS under the applicable laws and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofregulations.
(c) Notwithstanding anything else In connection with the prorations referred to in Section 3.4(a) above as used in the determination of any amount pursuant to this Agreement (including any amounts determined pursuant to the contrary provisions of Section 3.5), in this Section 14the event that actual figures are not available on the Closing Date, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) proration shall be based upon a change in land usage the applicable amounts properly accrued or ownership would have been accrued as of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesbeginning of the Closing Date.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Aep Texas Central Co), Purchase and Sale Agreement (Texas Genco Holdings Inc)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAll items of revenue and expenses with respect to the Venture, all normal the Facility Owners, the Operating Tenant, the Operating Subtenants and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, Facilities shall be prorated between Purchaser and Seller as of 11:59 pm on the Closing Date (the “Apportionment Time”) to allocate between (x) the Joint Venture as it was constituted immediately prior to the Closing Date (collectively, the “Original Company”) and (y) Purchaser (as 100% owner of the Joint Venture immediately following the Closing Date, Seller being charged ). Original Company shall be entitled to all revenue and credited shall be responsible for all expenses for the period of same time up to such date the Apportionment Time, and Purchaser being charged shall be entitled to all revenue and credited shall be responsible for all of same on and after such date. If the assessments for any such proratable items expenses for the year period of Closing have not yet been made, then any such prorations time after the Apportionment Time. Such adjustments shall be based upon reflected on the prior year’s assessmentsClosing Statement (with such supporting documentation as the parties hereto may reasonably require being attached as exhibits to the Closing Statement) and shall increase or decrease (as the case may be) the Purchase Price taking into account the parties respective interests in the Original Company. No All prorations shall be made in relation to rents not collected as on the basis of the actual number of days in the year and month in which the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect occurs or in the same for Seller's benefit after Closing, but shall period of computation. Any item which cannot be required to initiate legal proceedings in such attempt, and such collections, if any, finally prorated on the Closing Date because of the unavailability of information shall be accounted for between Purchaser and Seller tentatively prorated on the Reconciliation Date (hereinafter defined)basis of the best data then available and reprorated when the information is available but in each case with the time frames set forth in Section 8.04(b) below.
(b) On As soon as reasonably practicable after Closing, and in no event later than the first business day immediately prior to the day which is sixty six (606) days after the Closing Datemonth anniversary of Closing, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand shall agree on the tax or any other assessments for final determination of all prorations included on the Property for the year of Closing or for any other reason Statement (in any event, the “Reconciliation DateProration True-Up Statement”), provided that with respect to property tax prorations, Seller hereby agrees and Purchaser shall agree on the final determination of all such prorations within sixty days after Purchaser’s receipt of the final tax bills for all relevant periods with respect to cause to be paid to all of the Facilities. The net amount due Original Company or Purchaser, or Purchaser hereby agrees to pay to Sellerif any, as the case may be, a payment in an amount which reflects (i) net by reason of such adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid Statement as shown on the Closing Date and subsequently collected by PurchaserProration True-Up Statement, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred shall be paid in cash by the challenging party in that regard, and obligated therefore within ten (ii10) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to days following the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership date of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesProration True-Up Statement.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Sunrise Senior Living Inc), Purchase and Sale Agreement (Sunrise Senior Living Inc)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingIn addition to any other customary items agreed upon by the parties, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, following items shall be prorated separately apportioned and adjusted between Purchaser Kindred and Seller New Operator as of 11:59:59 p.m. in the time zone in which the Facility is located on the Closing Date, Seller being charged and credited for all of same up with the net amount (the “Net Adjustment Amount”) determined to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation payable to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing DateKindred, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to SellerNew Operator, as the case may be, a payment in an amount which reflects (i) net adjustments to be paid on the prorations made at Closing under Section 14.(a)Date, above, including, without limitation, by certified or bank cashiers’ check or wire transfer:
(a) Water, gas, electric, telephone and other utility charges, and sewer and waste water charges, shall be adjusted as of the Effective Time. If there are meters measuring the consumption of any utility or other service to the Facility, then Kindred and all rents delinquent New Operator shall each use their commercially reasonable efforts to cooperate to cause the meters to be read and unpaid on obtain final cut-off readings not more than one (1) day before the Closing Date and subsequently collected by Purchaserto establish the service account in New Operator’s name as soon as possible after the Effective Time. For metered service, Kindred shall pay the utility bills for services rendered prior to the readings. If for any reason any metered utility is read more than one (1) day before the Closing Date, Kindred and New Operator shall prorate such utility charges following the Closing Date as provided in Section 3.3(e).
(b) Kindred and New Operator shall prorate any savings resulting from any tax abatements on amounts paid by Kindred under the Property for Assumed Kindred Contracts through the year of Closing resulting from a challenge brought by either party hereto and Effective Time that related in whole or in part to periods after the costs or expenses incurred by the challenging party in that regardEffective Time, and all other Contracts to which Kindred is a party (ii“Kindred Contracts”) any costs shall otherwise be terminated or retained by Kindred as described in Section 5.1. For sake of clarity, Kindred shall be solely responsible for and expenses incurred by Purchaser shall pay all amounts under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else the Assumed Kindred Contracts for services or goods provided on or prior to the contrary Effective Time. For services or goods provided on and after the Effective Time, New Operator shall be solely responsible for and shall pay all amounts under the Assumed Kindred Contracts. For the avoidance of doubt, nothing contained in this Section 143.3(b) is intended to limit in any respect New Operator’s duty to assume, if perform and discharge the Property has been assessed for property tax purposes at such rates as would result Assumed Obligations. Kindred and New Operator shall prorate any amounts paid by New Operator under the Assumed Kindred Contracts after the Effective Time that relate in reassessment (i.e., "roll-back" taxes) based upon a change whole or in land usage part to periods on or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect prior to the PropertyEffective Time.
Appears in 2 contracts
Samples: Master Lease Agreement (Kindred Healthcare, Inc), Master Lease Agreement (Kindred Healthcare, Inc)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a1) At ClosingSubject to Subsection (2) below, all normal revenues and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against expenses of the Property, prepaid rents and other expenses and fees payable under any Leases on the Propertyincluding without limitation real property taxes, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwisespecial taxes, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, (if any) shall be prorated and apportioned between Purchaser BUYER and Seller SELLER as of the Closing Date, Seller being charged so that SELLER bears all expenses with respect to the Property, and credited for has the benefit of all of same up income with respect to such the Property, through and including the date and Purchaser being charged and credited for all of same on and after such dateimmediately preceding the Closing Date. If any portion of the assessments Property is affected by any assessment or other charge, whether for any taxes or bonds, or interest thereon, which is or may become payable in installments, and an installment payment of such proratable items assessment is then a lien due and payable as part of the annual ad valorem property tax xxxx received for the year of Closing have not yet been madeProperty, then any such prorations installment shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected prorated as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect ; and if any such assessment or other charge is not payable in installments or are not billed as part of the same annual ad valorem property tax xxxx for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if anythe Property, shall be accounted paid in full by SELLER at the Closing. Notwithstanding the foregoing, SELLER shall be solely responsible for between Purchaser and Seller clearing all possessory interest taxes from the Property not later than the Closing. Any necessary adjustment due either party on receipt of a supplemental tax xxxx will be made by the Reconciliation Date (hereinafter defined)parties outside of this Escrow within the time required by this Section 10 below, which obligation shall survive the Closing.
(b2) On Subject to Subsection (1) above, if any of the first business day immediately prior items to be prorated as of Closing cannot be finally determined as of Closing, the day which is sixty prorations shall be made at Closing based on the last available information, and post-closing adjustments between BUYER and SELLER shall be made within twenty (6020) days after the Closing Datedate that the actual amounts are determined, or and if payment is not made within this twenty (20) day period the party owing such other sums shall pay interest thereon, at the rate of ten percent (10%) per annum, from the date as may be agreed upon in writing by Seller and Purchaser in order to have in hand of delivery of the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments xxxx to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either non-paying party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if date of payment. This subsection shall survive the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesClosing.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 2 contracts
Samples: Real Property Purchase and Sale Agreement, Real Property Purchase and Sale Agreement
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Except as otherwise provided herein (for example, with respect to the determination of Acquired Net Working Capital) or as settled at the Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of within ninety (90) days after the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
, Sellers and Buyers shall prorate as of the Effective Time any amounts which (bi) On the first business day immediately are paid by Sellers prior to the day which is sixty (60) days Closing Date that are allocable to periods on or after the Closing Date, or such other date as may be agreed upon (ii) become due and payable on or after the Closing Date, in writing by Seller and Purchaser in order each case, with respect to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) the Contracts, (b) real and personal property taxes and assessments on the Assets (which shall be prorated as of the Closing), and (c) all utilities servicing any of the Assets, including water, sewer, telephone, electricity and gas service. Any such amounts which are not available within ninety (90) days after the Closing Date shall be similarly prorated as soon as practicable thereafter. Proration shall be calculated on a per diem basis, with Sellers responsible for taxes, payments and other assessments that relate to periods prior to the Effective Time, and Bxxxxx responsible for taxes, payments and other assessments that relate to periods after the Effective Time.
(b) Notwithstanding anything herein to the contrary, and without duplication of any amounts included in the determination of Acquired Net Working Capital, all rents delinquent real property taxes, if any, related to the Assets shall be prorated by Bxxxxx and unpaid Sellers on the Closing Date as of the Effective Time. All such amounts to be prorated will be reflected on a real property taxes proration statement (the “Property Tax Statement”) to be agreed upon by the parties prior to the Closing Date. If necessary for such proration, payments for real property taxes shall initially be determined based on the previous year’s real property taxes and subsequently collected by Purchasershall later be adjusted to reflect the current year’s real property taxes when the real property tax bills are finally rendered. Sellers shall be liable for (and shall reimburse Buyers to the extent that Buyers shall have paid) that portion of real property taxes relating to, or arising in respect of, periods (or portions thereof) ending prior to the Effective Time, and Buyers shall be liable for (band shall reimburse Sellers to the extent that Sellers shall have paid) that portion of real property taxes relating to, or arising in respect of, periods (or portions thereof) ending after the Effective Time, including, in each case, any savings resulting from any tax abatements adjustments made after the Closing Date to the amounts reflected on the Property Tax Statement for the year actual amount of Closing resulting from a challenge brought by either party hereto and real property taxes as finally determined for the costs or expenses incurred by applicable period. The parties shall cooperate to avoid, to the challenging party in that regardextent legally possible, the payment of duplicate real property taxes, and (ii) each party shall furnish, at the request of any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else other party, proof of payment of any real property taxes or other documentation that is a prerequisite to the contrary in this Section 14, if the Property has been assessed for avoid payment of a duplicate real property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Community Health Systems Inc), Asset Purchase Agreement (Community Health Systems Inc)
Prorations. The Contributor Parties shall be responsible for (or entitled to receive, as the case may be) all Taxes, prepaid items and other similar items (“Pro-Rated Items”) attributable to Xxxxxxxx South (for the avoidance of doubt, excluding insurance premiums) or the Xxxxxxxx Entities for periods prior to the Effective Time, and the Partnership Acquiring Entities shall be responsible for (or entitled to receive, as the case may be) all Pro-Rated Items for periods after the Effective Time. Pro-Rated Items for periods beginning before and ending after the Effective Time shall be allocated between the Partnership Acquiring Entities, on the one hand, and the Contributor Parties, on the other hand, in accordance with the provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against 2.8. The portion of each Pro-Rated Item allocated pursuant to this Section 2.8 to the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance portion of the Property under applicable period ending at or prior to the Effective Time shall (i) in the case of any Service Contracts franchise taxes, sales or otherwiseuse taxes, includingvalue-added taxes, without limitationemployment taxes, all utilities servicing the Propertywithholding taxes, and any dues tax based on or measured by income or receipts, be determined on a closing of the books basis, and assessments (ii) in the case of home or condominium owners’ associationsany other Pro-Rated Item, be determined on the basis of the proportional number of days in the relevant determination period for all days through but not including the Closing Date. The prorations shall be paid at Closing by the Partnership Acquiring Entities to the Contributor Parties (if the prorations result in a net credit to the Contributor Parties) or by the Contributor Parties to the Partnership Acquiring Entities (if the prorations result in a net credit to Partnership Acquiring Entities) by increasing or reducing the funds to be delivered by the Partnership Acquiring Entities in payment of the Cash Consideration at Closing. If the actual amounts of any items to be prorated between Purchaser and Seller are not known as of the Closing Date, Seller being charged and credited for all of same up to then such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall proration will be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date basis of the best evidence then available; as soon as practicable after actual amounts are available, but in no event later than 90 days thereafter, re-prorations will be made on the basis of the actual amounts and subsequently collected by Purchasera final cash settlement will be made between the Contributor Parties, on the one hand, and (b) any savings resulting from any tax abatements the Partnership Acquiring Entities, on the Property for other hand (which obligation will survive the year of Closing resulting from a challenge brought by either party hereto transfer and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership conveyance of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesXxxxxxxx Interests).
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Contribution, Conveyance and Assumption Agreement (USD Partners LP)
Prorations. The provisions Prorations between Seller and the Purchaser shall be made outside of this Section 14 shall survive the Escrow at the Closing and not be merged therein.as follows:
(a) At All taxes and assessments on the Company Assets for all prior years and all current year taxes and assessments that are due and payable on or before the Closing shall have been paid in full by the Company on or before the Closing. All general real estate, all normal personal property and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against for the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, current year only shall be prorated between Purchaser and Seller as on the basis of the most recent available information, as adjusted by any known changes relating to the period during which the Closing Dateoccurs, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If but without any adjustment resulting from the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as sale of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)Interests under this Agreement.
(b) On All charges for gas, electricity, water, telephone, sewer and other utilities shall be prorated on the first business day immediately prior basis of the most recent available information, as reasonably adjusted to account for known variances from usage that would not otherwise be reflected in such information. For purposes of calculating prorations, Purchaser shall be entitled to the income accruing to the Company and responsible for the Losses and expenses accruing to the Company for the entire day upon which is the Closing occurs. All such prorations shall be made on the basis of the actual number of days of the month which shall have elapsed as of the day of the Closing and based upon a 365-day year. The amount of such proration shall be subject to adjustment in cash after the Closing outside of Escrow, as and when more complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use commercially reasonable efforts to make such adjustments not later than sixty (60) days after the Closing Date (which cooperation may include any reasonable inspection of the Company’s books and records). At least three (3) business days prior to the Closing Date, or such other date as may be agreed upon in writing by Seller and shall deliver to Purchaser in order to have in hand a tentative statement of prorations setting forth the tax or any other assessments for the Property for the year preliminary determination of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause all items to be paid prorated pursuant to Purchaser, or Purchaser hereby agrees this Section 2.9 and supported by all detail reasonably necessary to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments make such determination. Prior to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the PropertyClosing, Purchaser hereby agrees and Seller shall use commercially reasonable efforts to pay all agree on such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesstatement of prorations.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingThe following items (whether paid or accrued but not yet paid) shall be prorated between Seller and Purchaser as of 11:59 p.m. on the date immediately preceding the Closing Date (the “Proration Date”); prorations credited to Purchaser shall reduce the Purchase Price and prorations credited to Seller shall increase the Purchase Price at Closing as follows:
(i) city, all normal state, and customarily proratable items, including, without limitation, all county ad valorem taxes for the year in which the Closing occurs based on the ad valorem tax bills for the Real Property that is owned by the Companies or for which a Company is responsible under the terms of a ground lease with respect to the Real Property that is leased by the Companies, if then available for such year, or if not, then on the basis of the ad valorem tax bxxx for the Real Property for the immediately preceding year, excluding taxes for any Real Property where the Tenant pays taxes directly to the taxing authority. (If such proration is based on an ad valorem tax bxxx for the immediately preceding year and assessments assessed against should such proration prove to be inaccurate on receipt of the Propertyad valorem tax bxxx for the Real Property for the year of Closing, prepaid rents then either Seller or Purchaser, as applicable, may demand at any time after Closing a payment from the other party in an amount sufficient to correct such malapportionment);
(ii) operating expenses (including amounts payable to Cedarhurst Operator or Cedarhurst Manager under the Cedarhurst Management Agreement), sanitary sewer taxes, and other expenses utility charges, if any, that are the obligation of any Company; provided, however, that Seller or Purchaser may elect, prior to Closing, to require that the meters for all utility charges be read and fees terminated as of the end of the last business day preceding the Closing Date, in which case Seller shall be responsible for and shall pay for all such charges accruing during or relating to the period prior to the Closing Date; and provided, further, that Seller shall pay any and all amounts payable under any Leases on reciprocal easement agreement or other title documents (which payments shall be prorated if paid for a year, a month, or other period extending in part beyond the PropertyClosing);
(iii) Rents paid (or accrued and not yet paid) under any Lease, prepaid and revenues received (or accrued but unpaid expenses incurred not yet received) by Cedarhurst TRS Facility Master Tenant accruing to such Company from the operation of the Cedarhurst Facility, and other revenues (including Prepaids and Deposits, if any);
(iv) all rent and other charges payable to the lessors under the Ground Leases;
(v) all interest, fees and other charges payable in connection with the operation Pxxxxx Center Loan (except as set forth in Section 4.12); and
(vi) unless otherwise transferred by Seller to Purchaser (or maintenance otherwise paid at the direction of Purchaser) in accordance with Section 2.2, Purchaser shall receive a credit for (A) the Property under any Service Contracts or otherwisePrepaids and Deposits, including(B) subject to Section 3.3(b) and Section 3.3(c), without limitation, all utilities servicing the PropertyOP-held Operating Cash, and any dues and assessments (C) the Funded Maintenance Account reserve held by ARHC PPLVLGA01, LLC in respect to a lease with the United States of home or condominium owners’ associations, shall be prorated between America for the Pxxxxx Professional Center. Purchaser and Seller as of shall prepare a proposed schedule in the Closing Dateform set forth on Schedule 3.3(a) (the “Proration Schedule”) prior to Closing, including the items listed above and any other items the parties determine necessary. Such Proration Schedule shall include all applicable income and expenses with regard to each Real Property and each Company. Seller being charged and credited for all of same up to such date and Purchaser being charged will use all reasonable efforts to finalize and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based agree upon the Proration Schedule at least two (2) business days prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On Seller shall receive all income from each Company attributable to the first business day immediately period prior to the day which is Proration Date and shall, unless otherwise provided for in this Agreement, be responsible for all expenses of each Company attributable to the period prior to the Proration Date. In the event that Purchaser receives any payment from a Tenant for rent due for any period prior to the Proration Date or payment of any other receivable of Seller (and such rent or receivable had not already been credited in accordance with Section 3.3(a) to Seller), Purchaser shall forward such payment to Seller. Payments received from a resident, to the extent such payments were previously made directly to Seller or any of its Affiliates, shall be allocated first to any current balances due from such resident that have accrued since the Proration Date and any costs of collection of such amounts incurred by Purchaser.
(c) Purchaser shall receive all income from each Company attributable to the period from and after the Proration Date and shall, except as otherwise provided for in this Agreement, be responsible for all expenses of each Company attributable to the period from and after the Proration Date. In the event Seller or its Affiliates receive any payment from a Tenant for rent due for any period from and after the Proration Date, Seller shall forward such payment to Purchaser.
(d) Purchaser shall be entitled to all insurance and casualty proceeds payable to any of the Companies with respect to any casualty or condemnation prior to the Closing Date, except (i) as set forth in Section 10.11 or in Section 10.12 or (ii) such amounts as have previously been paid to repair or restore such casualty or condemnation or for Seller’s costs in addressing same.
(e) The parties agree that any amounts that may become due under this Section 3.3 shall be paid at Closing as can best be determined. A post-Closing reconciliation of prorated items shall be made by the parties within sixty (60) days after the Closing Date, or such other date as may Date and any amounts due at that time shall be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments promptly forwarded to the prorations made respective party to whom such amounts are due in a lump sum payment. Any additional amounts that may become due after such determination shall be forwarded at Closing the time they are received. Any amounts due under this Section 14.(a), above, including, without limitation, 3.3 which cannot be determined within sixty (a60) any and all rents delinquent and unpaid on days after the Closing Date (such as, for example, fiscal year-end real estate taxes) shall be reconciled as soon thereafter as such amounts can be determined. Purchaser and subsequently collected by Purchaser, and (b) Seller agree that each shall have the right to audit the records of the other in connection with any savings resulting from any tax abatements on the Property for the year of such post-Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else reconciliation. Any payments made pursuant to the contrary in this Section 14, if the Property has been assessed 3.3 shall be treated as a purchase price adjustment for property income tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxespurposes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase Agreement (American Realty Capital Healthcare Trust III, Inc.)
Prorations. The provisions At the Closing, prorations between the Operator or applicable Seller, on the one hand, and Buyer (on behalf of this Section 14 itself and EAGL), on the other hand, shall survive Closing and not be merged therein.made for each Golf Course Property as follows:
(a) At Closing, all normal and customarily proratable items, including, without limitation, all All general ad valorem taxes, special assessments and other taxes and assessments assessed or charges of a similar nature imposed by any Governmental Authority against the Property, prepaid rents or by any applicable property owners association, utility district or any other body (collectively, the “Impositions” ) against the Golf Course Properties for all prior years and all current year Impositions that are due and payable on or before the Closing Date shall have been paid by the applicable Owner or, to the extent required under the applicable Lease, by the Tenant under such Lease, on or before the Closing Date, subject to proration as follows: Buyer shall be responsible for the payment to each applicable Seller of the amount of Impositions that relate to the period on and after the Closing Date (and the Sellers shall be responsible for the payment of such Impositions relating to the period prior to the Closing Date). To the extent that Impositions for the current year have accrued but are not yet due and payable, such amounts shall be paid by Buyer (or EAGL, as applicable) following the Closing Date, and Buyer shall receive a credit against the Purchase Price for the amount thereof that is attributable to the period prior to Closing, such pro ration to be based on the most recent available information, as adjusted by any known changes relating to the period during which the Closing occurs, and shall be subject to true-up pursuant to Section 6.6(j).
(b) All charges for gas, electricity, water, telephone, sewer and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser on the basis of the most recent available information, as reasonably adjusted to account for known variances from usage that would not otherwise be reflected in such information; Sellers shall request that the companies and Seller municipalities furnishing utility services to the Properties make termination readings on the morning of the Closing Date, or on a date as soon thereafter as practicable, and submit final statements for utility services, which shall be reconciled pursuant to the Statement of Adjustments.
(c) All membership dues for the month in which the Closing occurs or for any subsequent period after Closing, all items of expense under Approved Contracts, and all membership fees, charges, handicap fees, driving range fees, golf club storage fees, locker fees, trail fees and other income items that have accrued to the accounts of members or customers of the Golf Course Properties but that have not been invoiced as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected prorated as of the Closing Date, but Purchaser except that liability in respect of Refundable Membership Deposits shall make a commercially reasonable attempt to collect be treated in the same for Seller's benefit after Closing, but manner addressed in Section 5.3 and shall not be required prorated.
(d) All prepaid membership dues, fees or charges, handicap fees, driving range fees, golf club storage fees, locker fees, trail fees and other charges collected by Seller or the Operator, as applicable, with respect to initiate legal proceedings in such attempt, and such collections, if any, the Golf Club Properties shall be accounted prorated as of the Closing Date.
(e) Buyer shall receive a credit in the amount of all deposits received by Sellers or the Operator, as applicable, for between Purchaser Bookings to take place after the Closing (and Seller on the Reconciliation Date (hereinafter definedshall assume all liability arising after Closing with respect thereto).
(bf) On Buyer shall receive a credit for all gift certificates, rain checks, or other instruments redeemable for goods or services at the first business day immediately Golf Course Properties and sold or issued on or after the date that is twelve (12) months prior to the day Closing Date, to the extent they have neither been redeemed nor expired as of the Closing Date; provided, however, that the Buyer will not receive a credit for the redemption value of any electronic gift cards which will not be capable of being redeemed at the Golf Course Properties following termination of the existing point of sale software; Buyer agrees that all customers who present such cards for redemption at the Golf Course Properties will be referred to AGC’s website (xxx.xxxxxxxxxxxx.xxx), where they can redeem the cards on line, or to AGC’s customer service line (888-426-4653), where they can request a refund.
(g) Except as provided in Sections 5.2(b) and 6.6(k), all other items of income or expense with respect to the Property shall be prorated as of the Closing Date, with all such items of income and expense that relate to the Closing Date and the period after the Closing Date being credited and/or charged, as applicable, to the Buyer’s account. Without limiting the generality of the preceding sentence, (i) income received by Sellers and accounts receivable that represent xxxxxxxx for goods and services to be rendered on or after the Closing Date shall be for the account of Buyers, (ii) pre paid expenses which relate to goods or services to be provided to the Golf Course Properties in the ordinary course of business (or for other purposes approved by Buyer, which approval shall not be unreasonably withheld, conditioned or delayed) on or after the Closing Date shall be borne by Buyers, and (iii) refunds, to the extent relating to the period prior to the Closing, shall be for the account of Sellers or the Operator, as applicable.
(h) For all items of income or expense that relate to a period in which the Closing Date (or, as applicable, the Follow-on Closing Date) occurs, all prorations shall be made on the basis of a fraction, the denominator of which is sixty the actual number of days in such period and the numerator of which is (60a) for purposes of determining the Sellers’ share of such items of income or expense, the number of days in such period that precede the Closing Date and (b) for purposes of determining the Buyer’s share of such items of income or expense, the number of days in such period that fall on or after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects .
(i) net adjustments Seller shall be responsible for (i) any Income Tax (as hereinafter defined) allocated to the prorations made at Closing under Section 14.(a), above, including, without limitation, Las Vegas Seller (aor any previous direct or indirect holder of the Las Vegas Interest) any pursuant to the Joint Venture Agreement and all rents delinquent and unpaid on relating to the period prior to the Closing Date and subsequently collected by Purchaser, and (bthe “Sellers’ Tax Liability Period”) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs Income Tax liability resulting from the receipt of any portion of the Purchase Price by Las Vegas Seller for the sale of the Las Vegas Interest pursuant to this Agreement (collectively, “Sellers’ Ownership Income Tax Liability”), and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else Buyer shall be responsible for any Income Tax allocated to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership owner of the Property, Purchaser Las Vegas Interest pursuant to the Joint Venture Agreement and relating to the period on and after the Closing Date (except for any Sellers’ Ownership Income Tax Liability described in clause (ii) of this sentence). Seller hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller hold harmless Buyer from and against all claims any Claim that may be incurred by Buyer by reason of Seller’s breach of its obligation to pay any Sellers’ Ownership Income Tax Liability. “Income Tax” shall mean any federal or state income tax, along with interest and liability for such taxes.
(d) At Closingpenalties assessed thereon, Seller will, at its election due and payable by the owner of the Las Vegas Interest in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing connection with the amount ownership or operation of the Property (as that term is defined in the Joint Venture Agreement) (but specifically excluding any state or local transfer or excise tax due in connection with the sale of the Las Vegas Interest pursuant to this Agreement, which shall be shared equally by the parties consistent with clause (ii) of Sections 6.5(a) and all deposits held on behalf of Seller by utility companies with respect to the Property6.5(b))).
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Income Properties Inc)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, following items shall be prorated between Purchaser Buyer and Seller Sellers as of and through the Closing DateDate and shall constitute an adjustment to the Purchase Price:
(i) All ad valorem, Seller being charged real and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for personal property Taxes (including without limitation any such proratable items Taxes paid indirectly through the lessors under or relating to the Leases), general and special assessments (solely with respect to installments due in the current Tax year), and any other property Taxes relating to the Acquired Assets for the current tax year; however, if the amount of such Tax for the current Tax year of Closing have is not yet been madedeterminable, then any such prorations it shall be based upon initially be prorated on the prior year’s assessments. No prorations basis of the Tax for the immediately preceding Tax year or, if greater, the amounts billed by the landlords for the current period and finally adjusted after the amount of Tax for the current Tax year becomes determinable,
(ii) All payments to the lessors under or relating to the Leases, including unpaid or prepaid rent, security deposits (which shall be made in relation returned to rents not collected as the Sellers to the extent released by the lessors), and common area maintenance charges; and
(iii) Any prepaid expenses associated with the operation of the Closing DateAcquired Locations which were paid by Sellers in the Ordinary Course of Business, including without limitation telephone expenses and utility charges, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)excluding advertising expenses.
(b) On Sellers shall bear the first business day immediately cost and expense of all prorated items set forth in this §2.10 applicable to periods prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on including the Closing Date and subsequently collected by Purchasershall receive the benefits thereof, Buyer shall bear the cost and expense of payment of all prorated items set forth in this §2.10 applicable to periods from and after the Closing Date and shall receive the benefits thereof, and (b) any savings resulting from any tax abatements on the Property Purchase Price shall be adjusted, if necessary, to account for such division of the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofof prorated items.
(c) Notwithstanding anything else to At the contrary in this Section 14Closing, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser amounts shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At be estimated by the Parties in the manner set forth above or otherwise in good faith, with final adjusting payments due once the actual amounts are determined. After Closing, Seller willeither Party, at its election and in its sole discretionoption, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering may give the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with other Party written notice of the correct amount of any and all deposits held on behalf of Seller by utility companies with respect payment any necessary adjustment to the Propertyprorations due under this §2.10 (accompanied by documentation substantiating such amount) and (B) the Party from whom additional payment is required will pay the applicable amount within ten Business Days after such notice.
Appears in 1 contract
Prorations. The following shall be prorated between Buyer and Seller as of 12:01 A.M. on the Date of Occupancy, on the basis of the actual number of days during the month in which the Date of Occupancy occurs: utility charges, and rents. Delinquent rent shall not be prorated by Escrow Agent unless collected prior to Closing. In addition to the foregoing apportionments, Seller shall receive all other income accrued (including without limitation delinquent rent collected after Closing), and shall pay all other expenses accrued or incurred in connection with the ownership or operation of the Property before the Date of Occupancy, and Buyer shall receive all other income accruing, and shall pay all other expenses accrued or incurred in connection with the ownership or operation of the Property on or after the Date of Occupancy. Notwithstanding anything to the contrary in this paragraph, there shall be no proration of any amount received by Seller before the Date of Occupancy in connection with service contracts. With respect to the proration of real property taxes and special assessments (“Taxes”), the parties acknowledge and agree that (a) if the Closing occurs prior to the date that 2006 taxes are paid, then the proration of Taxes shall be based on the 2006 tax bxxx and shall be prorated as of the Closing Date taking into account the maximum allowable discount for early payment and all amounts paid under paragraph 6(b) of the Occupancy Agreement, and (b) if the Closing occurs following the date that 2006 taxes are paid, then there shall be no proration of Taxes. Buyer and Seller shall use their best efforts to complete all income and expense reconciliation to be performed outside of Escrow as soon as possible after Closing; provided, however that the parties agree that they shall reprorate Taxes and all items of income and expense within thirty (30) days following written demand by the other party. The provisions of this Section 14 10 shall survive Closing and not be merged thereinthe Closing.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Spanish Broadcasting System Inc)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, All prepaid rents and other expenses and fees payable under any Leases on with respect to the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, Premises shall be prorated between Seller and Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior Notwithstanding anything to the day contrary set forth in the Facility Lease, at the Closing, Lessee shall also pay to Seller an amount equal to Seller's reasonable estimate of the Additional Rent (as defined in the Facility Lease) due for the quarter in which is sixty the Closing occurs (60the "Closing Quarter"). Within ninety (90) days after the Closing Date, or such other date as may be agreed upon in writing by Lessee shall deliver to Seller a certificate reasonably acceptable to Seller and Purchaser certified by the chief financial officer of Lessee, setting forth the Gross Revenues (as defined in order to have in hand the tax or any other assessments Facility Lease) for the Property period from the commencement of the Closing Quarter through the Closing Date. A final reconciliation of the Additional Rent due for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to Quarter shall be paid to Purchaser, or Purchaser hereby agrees to pay to Sellermade based upon such certificate. If, as the case may bea result of such reconciliation, a payment in an amount which reflects (i) net adjustments the Additional Rent determined to be due for the Closing Quarter exceeds the amount paid by Lessee at the Closing, Lessee will pay such difference to Seller within ten (10) days after such final reconciliation or (ii) the Additional Rent determined to be due for the Closing Quarter is less than the amount paid by Lessee at the Closing, Seller agrees to refund such overpayment to Lessee within ten (10) days after such final reconciliation.
(c) All items that are required to be prorated as of the Closing Date and that are not subject to an exact determination shall be estimated by the parties. When any item so estimated is capable of exact determination after the Closing, the party in possession of the facts necessary to make the determination shall send the other party a detailed statement of the exact determination so made, and the parties shall adjust the prior estimate within ten (10) days after both parties have received said statement. Either party will be entitled, at its own expense, to audit the records supporting the determination made. All prorations shall be made at as of the Closing under Section 14.(a)Date, above, including, without limitation, (a) any and with Seller entitled to all rents delinquent and unpaid other income on the Closing Date and subsequently collected by Purchaserto have responsibility for all expenses through 11:59 p.m. on the Closing Date, and (b) any savings resulting from any tax abatements on the Property Purchaser entitled to all rents and income and to be responsible for the year of all expenses thereafter. The cash payment due to Seller at Closing resulting from a challenge brought shall be increased or decreased by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership proration of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesforegoing items.
(d) At The provisions of this Section 17 shall survive the Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Iasis Healthcare Corp)
Prorations. As soon as practicable after the Applicable Site Transfer Date, real estate and personal property taxes ("Taxes") attributable to those BTS Sites being transferred shall be apportioned as of the Applicable Site Transfer Date for each. Such apportionments shall be made pro rata on a per diem basis as of the Effective Date so that all such Taxes attributable to the period prior to the Applicable Site Transfer Date are for the account of Assignor; and all such Taxes attributable to the period on and after the Applicable Site Transfer Date are for the account of SBCW or applicable Cingular Group Member. Taxes shall initially be determined based on the previous year's taxes and shall later be adjusted to reflect the current year's Taxes when the tax bills are finally rendered. The provisions parties shall fully cooperate to avoid, to the extent legally possible, the payment of duplicate Taxes, and each party shall furnish, at the request of the other, proof of payment of any Taxes or other documentation which is a prerequisite to avoiding payment of a duplicate tax. In the event that either party (the "Payor") pays a Tax for which the other party (the "Payee") is obligated in whole or in part under this Section, the Payor shall present to the Payee evidence of payment and a statement setting forth the Payee's proportionate share of such Tax, and the Payee shall promptly pay such share to the Payor. In the event either Party (the "Recipient") receives refunds of a Tax to which the other Party (the "Beneficiary") is entitled in whole or in part under this Agreement, the Recipient shall promptly pay such share to the Beneficiary. In the event there exists as of the Applicable Site Transfer Date any pending appeals of ad valorem tax assessments with regard to any of the BTS Sites being transferred, the continued prosecution and/or settlement of such appeals shall be subject to the direction and control of Assignee with respect to assessments for the year within which the Assignment occurs. The parties agree that the following items shall be also apportioned between Vendor and SBCW, as of the Applicable Site Transfer Date, as to the Completed CA/NV Sites and Construction Sites: (a) rents and revenues under all Third Party Collocation Agreements; (b) base rent, license fees, revenue sharing payments or other charges due to landlords, lessors or licensors under the Ground Lease and (c) utility charges relating to Tower lighting. Such apportionments shall be made pro rata on a per diem basis as of the Applicable Site Transfer Date so that all such rents, revenues, charges and payments attributable to the period prior to the Applicable Site Transfer Date are for the account of Vendor; and all such rents, revenues, charges and payments attributable to the period from and after the Applicable Site Transfer Date are for the account of SBCW with such adjustments (and adjustments pursuant to the first paragraph of this Section 14 shall survive Closing and not 4(d)) to be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller made as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same Applicable Site Transfer Date by the party that on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior net basis owes money to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing party under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
paragraph (d) At Closingby wire transfer of immediately available funds to such accounts as such other party shall direct in writing. The parties shall fully cooperate to avoid, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Propertyextent legally possible, making duplicate payments to ground lessors or other counter-parties under the Ground Leases and to other third parties.
Appears in 1 contract
Samples: Agreement to Build to Suit (Spectrasite Holdings Inc)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAll rent, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents utilities and other expenses and fees payable under any lease charges with respect to Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, assumed by Buyer shall be prorated between Purchaser Buyer and Seller as of June 30, 2000. Such prorations shall, insofar as feasible, be determined and paid at the Closing DateClosing, Seller being charged and credited for all with best efforts to achieve final settlement of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) within 30 days after the Closing DateClosing. Seller shall be responsible for payment of all unpaid rent, common area maintenance expenses and real property taxes through June 30, 2000."
8. The third sentence of Section 6.1 shall be revised to state in its entirety as follows: "As soon as practical after the execution and delivery of this Agreement, but no later than June 13, 2000, Buyer and Seller shall make all filings required under the HSR Act, and Buyer and Seller will promptly file any supplemental or additional information which may reasonably be requested in connection therewith pursuant to the HSR Act, and will comply in all material respects with the requirements of the HSR Act."
9. Sections 6.11, 8.6 and 10.7 of the Agreement shall be deleted in their entirety.
10. Clause (vi) of Section 11.1(a) of the Agreement shall be deleted in its entirety.
11. The effectiveness of this Amendment is subject to the approval of the boards of directors of Seller and Parent on or before June 9, 2000. Prior to such other date as approvals, this Amendment shall have no force or effect. Seller and Parent will deliver certified copies of their board resolutions to Buyer on or prior to June 13, 2000.
12. This Amendment may be agreed upon executed in writing one or more counterparts, and by Seller different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, including counterparts transmitted by facsimile, but all of which taken together shall constitute one and Purchaser the same agreement.
13. On and after the date hereof, each reference in order the Agreement to have in hand the tax or any other assessments for "Agreement" shall mean the Property for the year of Closing or for any other reason (in any eventAgreement as amended hereby. Except as specifically amended above, the “Reconciliation Date”)Agreement shall remain in full force and effect and is hereby ratified and confirmed. The execution, Seller hereby agrees to cause to be paid to Purchaserdelivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or Purchaser hereby agrees to pay to Sellerremedy of any party hereto, as the case may be, nor constitute a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) waiver of any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership provision of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesAgreement.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions of Purchaser and Seller agree that, except as otherwise specifically provided in this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAgreement, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the ordinary and recurring items normally incurred by Seller (but excluding all Taxes other than Property under any Service Contracts or otherwiseTaxes) relating to the Business and operation of the Project, including, without limitation, all utilities servicing in each case as related to the Property, and any dues and assessments of home or condominium owners’ associationsPurchased Assets, shall be prorated between Purchaser and Seller charged as of the Closing Date, without any duplication of payment under the Project Contracts, with Seller being charged and credited liable to the extent such items relate to any time periods (tax year periods for all of same up Property Tax) ending on or prior to such date the Closing Date, and Purchaser being charged liable to the extent such items relate to periods (tax year periods for Property Tax) after the Closing (measured in the same units used to compute the item in question and credited for all of same on and after such dateotherwise measured by calendar days); provided that notwithstanding anything to the contrary herein, Purchaser shall not pay any amount under this Section 3.4 that constitutes an Excluded Liability. If In connection with the assessments for any such proratable items for prorations referred to in Section 3.4(a) above, in the year of event that actual figures are not available at the Closing have not yet been madeDate, then any such prorations the proration shall be based upon the prior year’s assessmentsapplicable amounts accrued through the Closing Date or paid for the most recent year or other appropriate period for which such amounts paid are available. No prorations All prorated amounts shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, recalculated and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior paid to the day which is sixty appropriate Party within thirty (6030) days after the Closing Date, or date that the previously unavailable actual figures become available. Seller and Purchaser shall furnish each other with such documents and other date records as may be agreed upon in writing by Seller and Purchaser reasonably requested in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees confirm all proration calculations made pursuant to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes3.4.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Entergy Gulf States Inc)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all All normal and customarily proratable items, including, without limitation, all ad valorem taxes prepaid rents, operating expenses and assessments assessed against the Propertyleasing commissions, prepaid rents and other expenses and fees payable under any Leases on the Propertyfees, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under payments relating to any Service Contracts or otherwise, including, without limitation, all utilities servicing other agreements affecting the Property, and any dues and assessments of home or condominium owners’ associationsProperty which survive the Closing, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same attributable to the period up to such date and Purchaser being charged the Closing Date (and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and amounts paid by Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior attributable to the day which is sixty (60) days period on or after the Closing Date, or such other date as may be agreed upon in writing by Seller ) and Purchaser in order to have in hand the tax being responsible for, and credited or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Sellercharged, as the case may be, a payment in an amount which reflects (i) net adjustments for all of same attributable to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any period on and all rents delinquent and unpaid on after the Closing Date Date; provided, that pass-on or pass-through charges which are payable under the Tenant Leases but are unpaid as of the Closing shall be assigned to Purchaser without any representation, warranty or recourse whatsoever. All unapplied Deposits under Tenant Leases, if any, shall be transferred by Seller to Purchaser at the Closing. Any real estate ad valorem, personal property taxes or similar taxes for the Property, or any installment of assessments payable in installments which installment is payable in the year of Closing, shall be prorated to the Closing Date, based upon actual days involved. In connection with the proration of real property taxes or installments of assessments, such proration shall be based upon the assessed valuation and subsequently collected by Purchasertax rate figures for the year in which the Closing occurs to the extent the same are available; provide , and that in the event that actual figures (b) any savings resulting from any tax abatements on whether for the assessed value of the Property or for the tax rate) for the year of Closing resulting are not available at the Closing Date, the proration shall be made using figures from the preceding year for the figures which are unavailable for the year of Closing. The proration shall be final and unadjustable except as provided in the following paragraph. - The provisions of this Section 8.4 shall survive the Closing. If any of the items subject to proration under the foregoing provisions of this Section 8.4 cannot be prorated at the Closing because of the unavailability of the information necessary to compute such proration, or if any errors or omissions in computing prorations at the Closing are discovered subsequent to the Closing, then such item shall be reapportioned and such errors and omissions corrected as soon as practicable after the Closing Date and the proper party reimbursed, which obligation shall survive the Closing for a challenge brought by either period (the "Proration Period") from the Closing Date until one hundred twenty (120) days after the Closing Date; provided, that with respect to ad valorem real and personal property taxes, the Proration Period shall be from the Closing Date until the earlier of (i) thirty (30) days after delivery of the respective tax bill, or (ii) December 31, 1998. Neither party hereto and shall haxx xhe right to require a recomputation of a Closing proration or a correction of an error or omission in a Closing proration unless within the costs Proration Period one of the parties hereto (i) has obtained the previously unavailable information or expenses incurred by has discovered the challenging party in that regarderror or omission, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else has given notice thereof to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon other party together with a change in land usage or ownership copy of its good faith recomputation of the Property, Purchaser hereby agrees proration and copies of all substantiating information used in such recomputation. The failure of a party to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver obtain any previously unavailable information or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies discover an error or omission with respect to an item subject to proration hereunder and to give notice thereof as provided above within the PropertyProration Period shall be deemed a waiver of its right to cause a recomputation or a correction of an error or omission with respect to such item after the Closing Date.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(ai) At ClosingExcept as otherwise provided below, all normal and customarily proratable itemsfor each item prorated hereunder, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller portion thereof allocable to periods beginning as of the Closing DateProration Time (as hereinafter defined) shall be credited to Buyer, Seller being or charged to Buyer, as applicable, and the portion thereof allocable to periods ending as of the Closing Proration Time shall be credited for to Seller, or charged to Seller, as applicable, all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No which prorations shall be made with respect to applicable Properties at Closing or, in relation the case of allocations to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit be made after Closing, but shall not be required to initiate legal proceedings in upon receipt of such attempt, and payments or payment of such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Sellerexpenses, as the case may be. As used herein, a payment in an amount which reflects “Closing Proration Time” means (ix) net adjustments if the Purchase Price (or allocated portion thereof) is received by Seller prior to 5:00 p.m. local New York, New York time on the Closing Date, as of 11:59 p.m. local New York, New York time on the day prior to the prorations made at Closing under Section 14.(a)Date, above, including, without limitation, (a) any and all rents delinquent and unpaid in which event Buyer shall be deemed owner of the applicable Properties on the Closing Date and subsequently collected by Purchaserfor the purposes of prorations hereunder, and (by) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment Purchase Price (i.e., "roll-back" taxesor allocated portion thereof) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held is received by Seller at Closingor after 5:00 p.m. local New York, New York time on the Closing Date, 11:59 p.m. local New York, New York time on the Closing Date in which event Seller shall be deemed owner of the applicable Properties on the Closing Date for the purposes of prorations hereunder. FurtherIf the Closing Statement reflects prorations calculated based on an incorrect Closing Proration Time, Seller will be credited then either at Closing with or upon reproration after Closing, Buyer and Seller shall reprorate as of the amount of any and all deposits held on behalf of Seller by utility companies with respect correct Closing Proration Time. Subject to the Property.foregoing, prorations at Closing shall be calculated as follows:
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingThe items described below with respect to each Property shall be apportioned between Transferor and Transferee and shall be prorated on a per diem basis as of 11:59 p.m. of the day before the Closing Date:
(i) annual rents, all normal other fixed charges (including prepaid rents), unfixed charges and customarily proratable items, additional rents (including, without limitation, all ad valorem taxes on account of taxes, porter's wage, electricity and assessments assessed against percentage rent), in each case paid xxxxx xxe Leases (it being agreed that any such amounts not paid prior to the PropertyClosing Date shall not be apportioned but shall be dealt with in accordance with the provisions of Section 5.2);
(ii) amounts payable under the Contracts to be assigned to Transferee;
(iii) real estate taxes, prepaid rents vault taxes, water charges and sewer rents, if any, on the basis of the fiscal year for which assessed;
(iv) fuel; electric and other expenses utility costs;
(v) assessments, if any, provided that any remaining installments with respect to any assessment or improvement lien for water, sewer or other utilities or public improvements shall be paid by Transferor if due and fees payable prior to the Closing and by Transferee if due and payable subsequent to the Closing;
(vi) rents payable under any Leases the Ground Lease;
(vii) dues to owner and marketing organizations;
(viii) amounts payable under reciprocal operating agreements, easements and similar instruments; and
(ix) other items customarily apportioned in sales or transfers of real property in the jurisdiction in which the applicable Property is located.
(b) If the Closing Date shall occur before the tax rate or assessment is fixed for the tax year in which the Closing Date occurs, the apportionment of taxes shall be upon the basis of the tax rate or assessment for the next preceding year applied to the latest assessed valuation and Transferor and Transferee shall readjust real estate taxes promptly upon the fixing of the tax rate or assessment for the tax year in which the Closing Date occurs.
(c) If there is a water or other utility meter(s) on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, Transferor shall be prorated between Purchaser and Seller as of furnish a reading to a date not more than thirty (30) days prior to the Closing Date, Seller being charged and credited the unfixed meter charge and the unfixed sewer rent, if any, based thereon for all the intervening time shall be apportioned on the basis of same up to such date and Purchaser being charged and credited for all of same on and after such datelast reading. If Transferor cannot readily obtain such a current reading, the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations apportionment shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesmost recent reading.
(d) At the Closing, Seller willif Transferee elects to take an assignment of any utility deposit made by Transferor with any utility company, at then Transferee shall reimburse Transferor for such utility deposit and Transferor shall execute such documents as may be required to assign its election rights in such deposits to Transferee and provide such utility companies with notice of such assignment, if necessary (in its sole discretion, either deliver or credit each case in form and substance reasonably satisfactory to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the PropertyTransferee). Seller will have no responsibility for security Any utility deposits not held so assigned to Transferee shall be refunded to Transferor.
(e) At the Closing, (i) the cost of tenant improvements actually paid for by Seller at Closing. Further, Seller will be credited at Closing with Transferor and the amount of any allowance in respect of tenant improvements actually paid by the Transferor during the period of time from and all deposits held on behalf after the date hereof until the date of Seller the Closing (such period, the "Executory Period") and (ii) any leasing commissions actually paid by utility companies with respect the Transferor during the Executory Period shall be apportioned as follows:
(A) Transferee shall receive a credit to the Propertyextent the amounts for such tenant improvement costs, allowances or leasing commissions shown on the business plan attached as Exhibit M (the "Business Plan") exceed the amounts actually expended by Transferor for such costs, allowances or commissions during the Executory Period.
(B) Transferor shall receive a credit to the extent the amounts actually expended by Transferor for such costs, allowances or commissions during the Executory Period exceed the amounts for such costs, allowances or commissions shown on the Business Plan.
Appears in 1 contract
Samples: Redemption Agreement (Reckson Operating Partnership Lp)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closingthe Closing and for the billing period in which the Effective Time occurs, all normal expenses and customarily proratable itemsincome arising from the conduct of the business of the Facility in the ordinary course, including, without limitation, all ad valorem taxes and assessments assessed against the Propertypatient care revenue, prepaid rents and other trade payables, telephone expenses and fees payable under utility charges, real and personal property Taxes attributable to the Facility, including any Leases on such items held in escrow (all such income and expenses to be referred to herein as the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations“Prorated Items”), shall be prorated apportioned between Seller and Purchaser and Seller as of the Closing DateEffective Time, it being the agreement of the Parties that Seller being charged shall be entitled to and credited responsible for all revenue, expenses and similar obligations arising from the operation of same up the Facility on or prior to such date the Effective Time and Purchaser being charged shall be entitled to and credited responsible for all revenue, expenses and similar obligations arising from the operation of same on the Facility after the Effective Time, except, in each case, as otherwise expressly set forth herein. This provision shall be implemented by Purchaser or Seller, as the case may be, remitting to the other any invoices for Prorated Items that it receives that reflect a service date for which the other Party is responsible and after such date. If the assessments for any such proratable items by Seller or Purchaser, as applicable, assuming responsibility for the year payment of Closing have not yet been made, then any such prorations shall invoices for Prorated Items that reflect a service date for which it is responsible with any overage or shortage in payments by either Party to be based upon the prior year’s assessments. No prorations shall be made adjusted and paid as provided in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, Sections 10(b) and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter definedc).
(b) On All such prorations shall be made on the first business day immediately basis of actual days elapsed in the relevant accounting, billing or revenue period and shall be based on the most recent information available to Seller. Utility charges which are not metered and read for the Closing shall be estimated based on prior charges, and shall be re-prorated upon receipt of statements therefor.
(c) To the extent possible and based on reasonable estimates, the Parties shall make all prorations at the Closing. All amounts owing from one Party hereto to the day which is other Party hereto that require adjustment after the Closing shall be settled within sixty (60) days after the Closing DateDate or, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for event the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability information necessary for such taxesadjustment is not available within said sixty (60) day period, then as soon thereafter as practicable.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit All prorations to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited made at Closing with shall be effected through adjustment of the amount of any and all deposits held on behalf of Seller by utility companies with respect to the PropertyPurchase Price.
Appears in 1 contract
Samples: Asset Purchase Agreement
Prorations. The provisions 8.5.1 Rentals (including all pre-paid rent), revenues, and other income, if any, from the Property; taxes, assessments and improvement bonds (on the basis of this Section 14 each such item's current tax fiscal year of closing); service or other contract fees; interest due and payable under any Loan Obligations assumed by Buyer; an amount to Seller equal to the balance of any escrow, impound or reserve accounts held by the holder of any Loan Obligations assumed by Buyer which will inure to the benefit of Buyer; all utility deposits, if any; and other expenses affecting the Property shall survive be prorated between Buyer and Seller as of the Closing Date; provided, however, that Seller 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 not owing from Tenants occupying a portion of the Property on the Closing Date; and provided further, that Buyer shall be merged therein.
(a) At entitled to any and all payments subsequently received in satisfaction of such delinquent rentals, notwithstanding the fact that such rentals are attributable to a period prior to Closing. For purposes of calculating prorations, Buyer shall be deemed to be title holder of the Property, and therefore entitled to the income and responsible for the expenses, after 12:01 a.m. on the Closing Date. After the Closing, Seller shall have no right to proceed in any manner or make any claim against 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 Seller by the Closing Date or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Seller shall have borne all normal and customarily proratable itemsreal property taxes, including, without limitation, all ad valorem taxes supplemental taxes, allocable to the period prior to the Closing and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwiseBuyer shall bear all real property taxes, including, without limitation, all utilities servicing supplemental taxes, allocable to the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on period from and after such datethe Closing. If any expenses attributable to the assessments for any such proratable items for Property and allocable to the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately period prior to the day which is sixty (60) days Closing are discovered or billed after the Closing, the parties shall make any necessary adjustment after the Closing Dateby 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. The provisions of this Section 8.5 shall survive the Closing for a period of one (1) year.
8.5.2 Fifteen (15) days prior to the Closing, or such other date as may be agreed upon in writing by Seller Escrow Agent shall deliver to each of the parties for their review and Purchaser in order to have in hand approval a preliminary closing statement (the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects "PRELIMINARY CLOSING STATEMENT") setting forth (i) net adjustments the proration amounts allocable to each of the prorations made at Closing under parties pursuant to this Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard8.5, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14Closing Costs. Based on each of the party's comments, if any, regarding the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e.Preliminary Closing Statement, "roll-back" taxes) based upon a change in land usage or ownership of Escrow Agent shall revise the Property, Purchaser hereby agrees to pay all such taxes Preliminary Closing Statement and Purchaser shall and does hereby indemnify and save Seller harmless obtain from and against all claims deliver to Seller and liability for such taxes.
(d) At Buyer, at the Closing, Seller willa final, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering signed version of a closing statement (the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property"CLOSING STATEMENT").
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apartment Investment & Management Co)
Prorations. The (a) Purchaser and Seller agree that, except as otherwise specifically provided in this Agreement, all of the prepaid items (excluding all Taxes other than Property Taxes) incurred by Seller prior to the Closing Date but on account of periods both prior to and following the Closing Date, that were incurred in the ordinary course of the conduct of the Business and operation of the Project consistent with past practice and the provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associationsAgreement, shall be prorated between Purchaser and Seller charged as of the Closing Date, without any duplication of payment under the Project Contracts or this Agreement, with Seller being charged and credited liable to the extent such items relate to any time periods (Tax year periods for all of same up Property Tax) ending on or prior to such date the Closing Date, and Purchaser being charged liable to the extent such items relate to periods (Tax year periods for Property Tax) after the Closing (measured in the same units used to compute the item in question and credited for all of same on and after such date. If otherwise measured by calendar days), provided that, notwithstanding anything to the assessments for contrary herein, Purchaser shall not pay any such proratable items for amount under this Section 3.4 that constitutes an Excluded Liability.
(b) In connection with the year of prorations referred to in Section 3.4(a), in the event that actual figures are not available at the Closing have not yet been madeDate, then any such prorations the proration shall be based upon the prior year’s assessmentsapplicable amounts accrued through the Closing Date or paid for the most recent year or other appropriate period for which such amounts paid are available. No prorations All prorated amounts shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, recalculated and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior paid to the day which is sixty appropriate Party within thirty (6030) days after the Closing Date, or date that the previously unavailable actual figures become available. Seller and Purchaser shall furnish each other with such documents and other date records as may be agreed upon in writing by Seller and Purchaser reasonably requested in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees confirm all proration calculations made pursuant to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes3.4.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Asset Purchase Agreement (Dynegy Acquisition, Inc.)
Prorations. The provisions of this Except as otherwise set forth in Section 14 shall survive Closing 2.3, prorations ---------- relating to the Transferred Assets (including, but not limited to, personal property, real estate, occupancy and not other similar property taxes, and utilities and related matters) will be merged therein.
(a) At made as agreed by the parties to the extent possible at the Closing, all normal with the Companies liable to the extent such items relate to any time period on or prior to the Closing Date and customarily proratable itemsPurchasers shall be liable to the extent any such item relates to periods from and after the Closing Date. In the event that the amount of any of such items is not known at the Closing, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on proration shall be made as soon as possible after the Property, prepaid and accrued but unpaid expenses incurred in Closing by settlement payments between the parties. In connection with the operation or maintenance proration of the Property under any Service Contracts or otherwiseboth real and personal property ad valorem taxes, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items if actual tax figures for the year of Closing have are not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of available at the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, an estimated proration of taxes shall be accounted for between Purchaser and Seller on made using tax figures from the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Datepreceding year; however, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property when actual taxes for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may beare available, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property corrected proration of taxes shall be made. If such taxes for the year of Closing resulting increase over those for the preceding year, the Companies or Parent shall pay to Purchaser a prorata portion of such increase, computed to the Closing Date, and conversely, if such taxes for the year of Closing decrease from those of the preceding year, Purchaser shall pay to Seller a challenge brought prorata portion of such decrease, computed to the Closing Date, any such payment to be made within ten (10) days after notification by either party hereto that such adjustment is necessary. The Companies shall, on or before the Closing Date, furnish to Purchaser and the costs or expenses incurred by Title Company all information necessary to compute the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary prorations provided for in this Section 14, if the Property has been assessed section. In no event shall Purchaser assume any liability with respect to any subsequent assessment of ad valorem taxes for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a years prior to Closing due to any change in land the usage or ownership of the any Real Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to any such assessment, such assessment shall be the Propertysole responsibility of the Companies from which the Companies shall indemnify, defend and hold Purchaser fully harmless. This covenant shall not merge with the special warranty deeds to be delivered at Closing but shall survive the Closing.
Appears in 1 contract
Samples: Purchase Agreement (Medpartners Inc)
Prorations. The provisions (i) All Taxes, operating expenses pertaining to the operation of this Section 14 the Premises and any Additional Equipment incurred by Tenant, utility expenses, water and sewer rents and charges, front-foot benefit charges (if applicable), or similar charges or fees shall survive Closing and not be merged thereinprorated as of the Expiration Date.
(aii) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any All Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, to be assigned to Landlord shall be prorated between Purchaser and Seller the parties as of the Closing Expiration Date, Seller being charged and credited for all the costs of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for terminating any such proratable items for the year of Closing have contracts or agreements that are not yet been made, then any such prorations assumed by Landlord shall be based upon borne by Tenant.
(iii) Tenant shall pay for, and shall indemnify Landlord against any liability for, services performed or for work on the Premises or any Additional Equipment undertaken by or at the direction of Tenant prior year’s assessments. No to the expiration of the Term.
(iv) On the expiration of the Term, (A) all prorations between Landlord and Tenant provided for pursuant to the terms of this Lease shall be made in relation to rents not collected on the basis of estimates using the most current information available as of the Closing Dateexpiration of the Term; and (B) a suitable escrow (the "Escrow"), but Purchaser the amount and terms of which shall make a commercially reasonable attempt be satisfactory to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, Landlord and such collections, if anyTenant, shall be accounted established by Landlord and held by an independent escrow agent selected by Landlord and Tenant to provide for between Purchaser and Seller payment of utility charges, operating expenses, contract liabilities accrued, and/or work on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior Premises contracted for by Tenant, that are due and payable by Tenant pursuant to the day terms of this Lease, but for which is sixty final bills are not available on the expiration of the Term. Within forty-five (6045) days after the Closing Date, expiration of the Term or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any eventsoon thereafter as is reasonably possible, the “Reconciliation Date”), Seller hereby agrees to cause parties shall make a final settlement of all prorations to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments made pursuant to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaserterms of this Lease, and (b) following such final settlement, any savings resulting from any tax abatements on sums remaining in the Property for the year of Closing resulting from a challenge brought Escrow shall be paid by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else escrow agent to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesapplicable party.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions 6.7.1. Real property taxes, assessments, rents, security deposits, and cam expenses shall be prorated through Escrow between Buyer and Seller as of Close of Escrow. Rents, security deposits and "CAM" expenses shall be approved by Buyer prior to Close of Escrow. Any delinquent rents collected by Buyer shall be paid to Seller. Seller shall have the right to pursue any Tenant for delinquent rent, but shall not cause a Tenant to be delinquent for their current rent or become financially unstable or commence eviction proceedings against any such Tenant. Tax and assessment prorations shall be based on the latest available tax xxxx. If, after Close of 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.
6.7.2. All leasing commissions owing and tenant improvements with respect to the Property transactions entered into prior to execution of this Section 14 Agreement shall survive Closing be paid by Seller, and not Seller shall indemnify and hold Buyer harmless for Lease commission claims brought against the Property arising therefrom. All leasing commissions for new Leases and for Lease renewals executed and expansion options exercised after the date of this Agreement shall be merged thereinprorated between Buyer and Seller as their respective periods of ownership bear to the primary term of the new Lease.
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 attorneys' fees (a) At Closingexcept those items which under the terms of this Agreement specifically become the obligation of Buyer), all normal brought by third parties and customarily proratable items, including, without limitation, all ad valorem taxes based on events occurring on or before the date of closing and assessments assessed against the Property, prepaid rents and other expenses and fees payable under which are in any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing 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 dues and assessments all liabilities, claims, demands, suits and judgments, of home any kind or condominium owners’ associationsnature, shall be prorated between Purchaser including court costs and Seller as reasonable attorneys' fees, brought by third parties and based on events occurring subsequent to the date of closing and which are in any way related to the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attemptProperty, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), aboveall expenses related thereto, including, without limitationbut not limited to, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any court costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofattorneys' fees.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAll non-delinquent rents, all normal and customarily proratable items, including, without limitation, all ad valorem taxes real property taxes, general and special assessments, water use fees, irrigation project assessments, non-separately billed utilities and other services (if Buyer continues such services), will be prorated as of the Closing. In making all prorations, Buyer will be credited or debited with all matters for the day on which the Closing occurs. Seller will pay to Buyer all unearned advances. All existing improvement liens or special assessments assessed against affecting the Property, prepaid rents the installments under which are not yet due, will become Buyer's obligation upon the Closing and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall may be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)conveyed subject thereto.
(b) On All items to be prorated between Seller and Buyer, as well as other charges and credits reflected on the first business day immediately prior closing statement(s), will be based upon the best information available to the day which is sixty parties at the time of Closing. If ad valorem real property taxes have not been assessed for the current year, or the tax rate has not been established by the relevant taxing authority, then ad valorem taxes will be prorated based upon the tax rate for the preceding year applied to the latest assessed valuation. If, following the Closing, any party discovers that any item prorated, charged or credited pursuant to the provisions of this subparagraph was erroneous, or was based upon an inaccurate estimate, then such party will notify the other party of such error and an appropriate adjustment will be made between the parties so that any item will have been correctly and accurately prorated, charged or credited between the parties. The amount of any adjustment will be due and payable by the appropriate party ten (6010) days after the Closing Date, or following demand for payment thereof accompanied by such other date documents as may be agreed upon in writing by Seller and Purchaser in order reasonably required to have in hand establish the tax or any other assessments for accuracy of such adjustment. The provisions of this subparagraph will survive the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofClosing.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Blackwater Midstream Corp.)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAll income, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on deposits for services or advertising to be rendered arising from the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance conduct of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, Business shall be prorated between Purchaser Buyer and Seller as of 12:01 a.m. (pacific standard time) on the date immediately after the Closing (the "Adjustment Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date"). If the assessments for any such proratable items for the year of Closing have not yet been made, then any such Such prorations shall be based upon the prior year’s principle that Seller shall be entitled to all income earned and shall be responsible for all Liabilities incurred or accruing in connection with the Business to the Adjustment Date and Buyer shall be entitled to all such income earned and shall be responsible for all such Liabilities in connection with the Business from and after the Adjustment Date. All program Contracts shall be prorated in accordance with the rules of the Financial Accounting Standards Board.
(b) Such prorations shall include, without limitation, all expenses for goods or services received both before and after the Adjustment Date, prepaid cash time sales agreements, ad valorem, real estate and other property taxes, regulatory, business and license fees, music and other license fees, commissions, wages, payroll taxes, and other fringe benefits of employees of Seller who enter the employment of Buyer (including accrued vacation pay), power and utility expenses, commissions, rents and similar prepaid and deferred items deposits, reserves and all other expenses attributable to the Business. All special assessments and similar charges or liens imposed against the Real Property and Tangible Personal Property in respect of any period of time through the Adjustment Date, whether payable in installments or otherwise, shall be the responsibility of Seller, and amounts payable with respect to such special assessments, charges or liens in respect of any period of time after the Adjustment Date shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. No Schedule 1.4 contains a full and complete list ------------ of all known Liabilities to be prorated in accordance with the provisions of this Section 1.4.
(c) To the extent that any of the foregoing prorations and adjustments cannot be determined as of the Adjustment Date, Buyer and Seller shall conduct a final accounting and make any further payments, as required, within 60 days after the Closing. The prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collectionsaccordance with generally accepted accounting principles or, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or no such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies principles exist with respect to the Propertyproration of any item, the proration shall be made in accordance with industry practice.
Appears in 1 contract
Samples: Asset Purchase Agreement (Entravision Communications Corp)
Prorations. The provisions Except as otherwise provided in this Agreement with respect to items allocable exclusively to Seller or Purchaser, to the extent that any of the items listed below in this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and 3.4 are paid by Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days Closing or are payable by Purchaser or the Seller after the Closing Date, such items shall be apportioned as of the Closing Date such that Seller shall be liable for (and shall reimburse Purchaser, including without limitation by offset to the General Balance held in escrow to the extent that Purchaser shall pay) that portion of such of the foregoing relating or attributable to periods prior to the Closing Date and Purchaser shall be liable for (and shall reimburse Seller to the extent Seller shall have paid) that portion of the foregoing relating or attributable to, periods on or after the Closing Date. Should any amounts to be prorated not have been finally determined on the Closing Date, a mutually satisfactory estimate of such amounts made on the basis of Seller's records shall be used as a basis for settlement at Closing, and the amount finally determined will be prorated as of the Closing Date and appropriate settlement made as soon as practicable after such final determination, with final settlement to be made no later than The Settlement Date. If as a result of any such settlement in accordance with the preceding sentence Purchaser is owed an amount from Seller, Purchaser shall have the right in its sole discretion to be reimbursed for such amount out of the Escrow Amount. Such prorated items shall include: (a) personal property, real estate, retail sales, occupancy and water Taxes, if any, on or with respect to the Business, the Acquired Assets and/or the Assumed Obligations notwithstanding the date of the assessment of such Taxes; (b) insurance premiums of any policies acquired by Purchaser at Closing; and (c) any and all other date as may be agreed upon expenses customarily subject to proration in writing by connection with the sale and purchase of assets and not otherwise provided for herein. Seller and Purchaser agree to furnish each other with such documents and other records as each party reasonably requests in order to have confirm all adjustment and proration calculations made pursuant to this Section 3.4. The proration and adjustment process provided in hand the tax this Section 3.4 shall also include an adjustment of cash received by Purchaser or any other assessments for the Property for the year of Closing or for any other reason Seller (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount ) to which reflects (i) net adjustments the other is entitled pursuant to the prorations made at Closing under Section 14.(a), provisions of Sections 2.1 and 2.3 above, including, without limitation, (a) any but shall not include an adjustment for security and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security other deposits then actually held heretofore paid by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Propertythird parties.
Appears in 1 contract
Prorations. The provisions of this Section 14 following adjustments to the Purchase Price paid hereunder shall survive be made between Seller and Purchaser and shall be prorated (as applicable) on a per diem basis as if Purchaser owned the Property for the entire day on the Closing and not be merged therein.Date:
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem All real estate taxes and installments of special assessments due and payable with respect to the calendar year of Closing. All other installments of special assessments not yet due and payable shall be paid by Purchaser. If at the time of Closing the tax rate or the assessed against valuation for the Propertycurrent year has not yet been fixed, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, taxes shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior tax rate and the assessed valuation established for the previous tax year’s assessments. No prorations shall be made in relation ; provided, however, that Seller and Purchaser agree that to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect extent the same actual taxes for Seller's benefit after the current year differ from the amount so apportioned at Closing, but shall not be required to initiate legal proceedings in such attemptthe parties hereto will make all necessary adjustments by appropriate payments between themselves following the Closing, and such collections, if any, this provision shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)survive Closing.
(b) On Charges under service agreements, utility charges for which Seller is liable, and other operating expenses of the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may Property shall be agreed upon in writing by prorated between Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofClosing.
(c) Notwithstanding anything else to the contrary Refundable cash or other refundable deposits posted with utility companies or other entities in this Section 14, if connection with the Property has been assessed for property tax purposes shall, at Sellers’ option, either be assigned to Purchaser and credited to Seller at Closing, or Seller shall be entitled to receive and retain such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes refundable cash and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesdeposits.
(d) At ClosingThe Personal Property is included in this sale, without further charge, except that Purchaser shall pay to Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf sales or similar taxes payable in connection with the Personal Property which is to be transferred to Purchaser under this Agreement and Purchaser shall execute and deliver any tax returns required of it in connection therewith, said obligations of Purchaser to survive Closing.
(e) All prorations described in this Section 4.4 shall be effected by increasing or decreasing, as appropriate, the amount of cash to be paid by Purchaser to Seller by utility companies with respect to at Closing. Except for the Propertyproration of taxes described in Section 4.4(a) above, all prorations provided for herein shall be final. The proration of taxes described in Section 4.4(a) above shall be deemed final if no adjustment thereto is requested within one (1) year after Closing.
Appears in 1 contract
Samples: Purchase Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of least five (5) Business Days prior to the Closing Date, Seller being charged and credited for all of same up shall provide to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year Seller’s estimate of Closing have not yet been madeDate Net Working Capital (the “Estimated Closing Date Net Working Capital”), then any such prorations including the calculation thereof. Such estimate shall be made by Seller in good faith and in accordance with GAAP and shall be based upon the prior year’s assessments. No prorations on information which shall be made in relation disclosed to rents not collected as of Purchaser when the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)Adjustment Estimate is delivered.
(b) On After the first business day immediately prior Closing Date, Seller and Purchaser shall cooperate and provide each other access to their respective books, records and employees as are reasonably requested in connection with the day which is sixty matters addressed in this Section 2.06. Within 60 days after the Closing Date, Purchaser shall determine the Closing Date Net Working Capital and shall provide Seller with written notice of such determination, along with reasonable supporting information and calculations (60the “Purchaser’s Determination”).
(c) If Seller objects to Purchaser’s Determination, then it shall provide Purchaser written notice thereof within thirty (30) days after receiving Purchaser’s Determination; provided, that Seller and Purchaser shall be deemed to have agreed upon all items and amounts that are not disputed by Seller in such written notice. If the Parties are unable to agree on the Closing Date Net Working Capital within one hundred twenty (120) days after the Closing Date, or the Parties shall refer such other date as may be agreed upon in writing by dispute to a firm of nationally recognized independent public accountants mutually acceptable to Purchaser and Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation DateIndependent Accountant”), which firm shall make a final and binding determination as to only those matters in dispute with respect to this Section 2.06(c) on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountant shall not have the power to modify or amend any term or provision of this Agreement and the determination of the Independent Accountant, if not in accordance with the position of either Seller hereby agrees or Purchaser, shall not be in excess of the higher, nor less than the lower, of the amounts presented in Purchaser’s Determination or in Seller’s written disagreement of such calculation. The fees, expenses and costs of the Independent Accountant in connection with such determination shall be borne by Seller, on the one hand, and by Purchaser, on the other hand, based upon the percentage that the amount not awarded to cause such Party bears to be paid the amount actually contested by such Party. If Seller does not object to Purchaser’s Determination within the time period and in the manner set forth in the first sentence of this Section 2.06(c) or if Seller accepts Purchaser’s Determination, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date Net Working Capital set forth in Purchaser’s Determination shall become final and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on binding upon the Property Parties hereto for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax all purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxeshereunder.
(d) At Closing, If (i) the Closing Date Net Working Capital (as finally agreed upon between Purchaser and Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held as finally determined by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.Independent Accountants) minus
Appears in 1 contract
Samples: Asset Purchase Agreement
Prorations. The provisions 2.6.1 On the Closing Date, or as promptly as practicable following the Closing Date, but in no event later than sixty (60) days thereafter, to the extent not included in the calculation of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingNet Working Capital, all normal and customarily proratable itemsthe water, includinggas, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents electricity and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid utility expenses incurred in connection with operating the operation or maintenance of Business and other similar periodic charges incurred in operating the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing Business in the Property, and any dues and assessments of home or condominium owners’ associations, ordinary course shall be prorated for 1997 between Purchaser Buyer and Seller effective as of the Closing Date. To the extent practicable, Seller being charged and credited for all to the extent not included in the calculation of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items Net Working Capital, utility meter readings for the year of Closing have not yet been made, then any such prorations Fee Property shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected determined as of the Closing Date.
2.6.2 Notwithstanding anything herein to the contrary but subject to Section 2.6.3, any taxes not measured or measurable, in whole or in part, by net or gross income or receipts (including, but Purchaser shall make not limited to, real or personal property or ad valorem taxes) imposed on the Purchased Assets that relate to a commercially reasonable attempt to collect tax period beginning before the same for Seller's benefit Closing Date and ending after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, the Closing Date (an "Overlap Period") shall be accounted apportioned as of the Closing Date such that Seller shall be liable for between Purchaser (and Seller shall reimburse Buyer to the extent that Buyer shall have paid) that portion of such taxes relating to, or arising in respect to, periods on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately or prior to the day which is sixty Closing Date and Buyer shall be liable for (60and shall reimburse Seller to the extent Seller shall have paid) days that portion of such taxes relating to, or arising in respect to, periods after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or . Should any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause amounts to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as prorated not have been finally determined on the case may beClosing Date, a payment in an mutually satisfactory estimate of such amounts made on the basis of the Seller's records shall be used as a basis for settlement at Closing, and the amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on finally determined will be prorated as of the Closing Date and subsequently collected appropriate settlement made as soon as practicable after such final determination; provided, however, that proration for ad valorem taxes for 1997 will be made after Buyer is invoiced by Purchaser, the taxing authorities and Seller will pay to Buyer Seller's prorated share of such tax payment ten days prior to the date such tax payment is due.
2.6.3 Seller and Parent shall pay and be responsible for 50% and Buyer shall pay and be responsible for 50% of (bi) any savings resulting from any tax abatements all motor vehicle taxes on the Property for transfer of titled motor vehicles included in the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regardPurchased Assets, and (ii) all other sales, transfer or similar state or local taxes and all recording Fees imposed as a result of the sale of the Purchased Assets. Seller and Parent shall pay and remain responsible for all income taxes, sales or use tax, franchise taxes, payroll taxes and any other taxes which may be due in respect of operation of the Business before the Closing Date.
2.6.4 Seller and Parent shall pay and be responsible for all salaries, wages, federal withholding and social security taxes, employee benefit plans, workers' compensation, and unemployment compensation taxes and other costs and expenses relating to employees employed in connection with the Business or Purchased Assets in respect of periods on or before the Closing Date and thereafter with respect to such employees which are not Transferred Employees. Buyer shall pay and be responsible for all such costs and expenses associated with any Transferred Employees that are incurred by Purchaser under Section 32.(b)(ii) hereofin respect of periods after the Closing Date. If Buyer, on the one hand, or Seller or Parent, on the other hand, receives an invoice for any tax or other expense which is allocable to the other party in part or in full hereunder, the recipient shall forward a copy of the invoice promptly to the other party.
(c) Notwithstanding anything else 2.6.5 Seller and Parent shall be entitled to all revenues attributable to the contrary Purchased Assets before the Closing Date, to the extent that such revenues are not Purchased Assets or proceeds thereof. Buyer shall be entitled to all revenues which are (i) Purchased Assets or proceeds thereof, or (ii) attributable to the Purchased Assets after the Closing Date. If Buyer, on the one hand, or Seller or Parent, on the other hand, receives a payment from a third party due in this Section 14whole or in part to the other party, if it shall pay over such portion to the Property has been assessed other party as soon as practicable, but in any event within 10 days after receipt thereof.
2.6.6 Seller and Parent shall pay and be responsible for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership 50% and Buyer shall pay and be responsible for 50% of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and cost of an Owner Policy of Title Insurance in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any $14,000,000 issued by Partners Title Company ("Title Company") as agent for Commonwealth Land Title Insurance Company (with such reinsurance as Buyer may require), insuring that Buyer is the owner of the Fee Property and all deposits held on behalf improvements thereon subject only to Permitted Exceptions and the standard printed exceptions included in a Texas standard form owner policy of Seller by utility companies with respect to title insurance; provided, however, that (i) the Property.standard exception for discrepancies, conflicts or shortages in area shall be deleted except for "shortages in area,"
Appears in 1 contract
Prorations. The provisions following shall be apportioned between Seller and Purchaser at the Closing as of this Section 14 shall survive 11:59 p.m. of the day preceding the Closing and not be merged therein.Date:
(a) At Rents and other income (including real estate tax, insurance and common area maintenance reimbursements) derived from the operation the Property that have been collected for the calendar month in which the Closing occurs (if any) shall be prorated as of the Closing Date. Any amounts received from Tenants after the Closing shall be applied on a Tenant by Tenant basis as follows: The rents shall be prorated as if the current month were paid. No "Delinquent Rents" (i.e., rents or other charges that are due for the periods prior to the month of the Closing) shall be prorated in favor of Seller. All rents and other charges received by (or for the benefit of) Purchaser from any Tenants after the Closing shall be first applied against current and past due obligations owed to, or for the benefit of, Purchaser, and any excess shall be delivered to Seller, but only to the extent of amounts in default and owed to, and for the benefit of, Seller for the period prior to the Closing Date. In no event, however, shall any sums be paid to Seller to the extent Seller has been previously reimbursed for such default out of any security deposit and security deposits have been appropriately prorated hereunder. Seller shall have the right to collect delinquent rents directly from Tenants after the Closing, and in connection therewith, Purchaser agrees to reasonably cooperate with Seller, at no expense to Purchaser and short of litigation, but in no event shall Seller disturb a Tenant's occupancy or commence litigation against any Tenant after the Closing. Seller agrees that it will not unreasonably interfere with Purchaser's relationship with its Tenants generally in collecting delinquent rents hereunder. Purchaser will furnish to Seller upon the expiration of three (3) months following the Closing and each three (3) month period thereafter until the first anniversary of the Closing Date, an accounting setting forth in reasonable detail the amounts owed and the amounts collected from delinquent Tenants which are payable to Seller under the provisions of this Paragraph 4.5(a). Upon receipt of delinquent rents from Tenants that are owed to Seller hereunder, Purchaser shall promptly pay such amounts to Seller. Upon receipt of any amount directly from Tenants after the Closing due to Purchaser, Seller shall promptly pay over such amount to Purchaser.
(b) Real estate taxes, water charges and sewer rents, on the basis of the fiscal or tax years, respectively, for which same have been assessed, regardless of whether or not then due and payable or a lien. Seller shall pay at or prior to the Closing (or Purchaser shall receive a credit for) any unpaid taxes attributable to periods prior to the Closing Date, (whether or not then due and payable or a lien as aforesaid), and Seller shall receive a credit for any previously paid taxes attributable to periods from and after the Closing Date. Notwithstanding the foregoing, Section 4.6 shall govern with respect to all normal general, special and/or betterment assessments on the Property at the Closing Date. Any assessments after the Closing Date, including any assessments for prior years due to a change in land, usage or ownership, shall be paid solely by Purchaser, without any adjustment.
(c) Personal property taxes, if any, on the basis of the fiscal year for which assessed.
(d) Fees for inspections, permits or licenses which are transferred to Purchaser at the Closing.
(e) In the event that final meter readings are not available, utilities (including telephone, steam, electricity and customarily proratable itemsgas) shall be adjusted on the basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available. Seller shall use good faith efforts to arrange for final meter readings for all utilities serving the Property on the day prior to the Closing. If final meter readings are available, Seller shall pay all charges based upon the metered usage prior to the Closing.
(f) All ordinary operating expenses of the Property including, without limitation, all maintenance, service charges (including ad valorem taxes tax appeal contracts), expenses and assessments assessed against charges under those Service Contracts being assumed by Purchaser, and all other normal operating charges with respect to the Property.
(g) Permitted administrative charges, prepaid rents if any, on those security deposits transferred by Seller pursuant to Section 4.2(f).
(h) Interest accruing under the Notes.
(i) Such other items as are customarily apportioned between sellers and purchasers of real property of a type similar to the Property and located in the city or town and state where the Property is located. Notwithstanding anything to the contrary contained herein, all brokerage and leasing commissions or other expenses and fees payable under compensation due or accrued to any Leases on the Propertybroker, prepaid and accrued but unpaid expenses incurred agent or other person in connection with the Property for brokerage or other services rendered to Seller or any predecessor of Seller in connection with or on account of the Tenant Leases shall (A) be paid by Seller in connection with any Tenant Lease (or extension or modification option with respect thereto) which has been executed and delivered (or exercised) by the parties thereto prior to the execution and delivery of this Agreement; (B) provided such commission or compensation has been disclosed to Purchaser, be paid by Purchaser in connection with any Tenant Lease (or extension or modification option with respect thereto) which has been executed and delivered (or exercised) by the parties thereto after the Closing Date; (C) provided such commission or compensation has been disclosed to Purchaser, be paid by Purchaser in connection with any Tenant Lease (or extension or modification option with respect thereto) which has been approved by Purchaser and executed and delivered (or exercised) by the parties thereto after the execution and delivery of this Agreement and prior to the Closing, but for which the payment of Rent shall have commenced after the Closing Date; and (D) be adjusted as of 11:59 p.m. of the day preceding the Closing Date in connection with any Tenant Lease (or extension or modification option with respect thereto) which has been executed and delivered (or exercised) by the parties thereto, and for which the payment of Rent shall have commenced after the execution and delivery of this Agreement and prior to the Closing Date. Notwithstanding anything to the contrary contained herein, all prepaid rentals, other prepaid payments, security deposits, electric, gas, sewer and water deposits deposited with Seller by Tenants (including all accrued interest on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Tenant Leases, license agreements or concession agreements relating to the Property, shall all belong to Purchaser. Notwithstanding the foregoing, Purchaser shall receive at the Closing a cash credit in the amount of all such deposits, prepaid rentals and other prepaid payments, which shall all be retained by Seller unless otherwise required by law, any lender or any Tenant Leases. Notwithstanding anything to the contrary contained herein, percentage rent (i.e., that portion of the rent payable to the landlord by a Tenant under a Tenant Lease which is a percentage of the amount of sales or of the dollar amount of sales), if any, payable under each Tenant Lease shall be prorated with respect to the lease year thereunder in which the Closing occurs on a per diem basis as and when collected, and paid to the parties in the same priority as set forth in Section 4.5(a). Any percentage rent collected by Purchaser, including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a Tenant under a Tenant Lease which ends on a date prior to the Closing Date, and (ii) that portion of a lease year or accounting period of such Tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter, shall in both cases be paid to Seller within ten (10) days of receipt by Purchaser. Purchaser shall not be required to institute any action or proceeding to collect any delinquent percentage rent. Notwithstanding anything to the contrary contained herein, Seller shall be paid Seller's share, if any, of all revenues from the operation or maintenance of the Property under prior to the Closing Date other than rent, real estate tax, insurance and common area reimbursements (including parking charges and telephone booth and vending machine revenues), if, as and when received by Purchaser. Except as expressly set forth in this Section 4.5, if the exact amount of any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall item to be prorated between Purchaser and Seller is not known as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations proration shall be based upon the prior year’s assessments. No prorations shall be a reasonable estimate thereof made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand and as soon after the tax or any other assessments for Closing as the Property for exact amount of the year of Closing or for any other reason (in any eventitem is known, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability adjustment for such taxesitem shall be re-prorated pursuant to Section 4.6.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The parties acknowledge that XXX Oil, Inc. ("XXX") is currently a party to a certain agreement with WorldCom, Inc. ("WorldCom") concerning the provision of long distance telephone services to XXX, to entities related to XXX (the "XXX Entities"), and to other entities which have contracted with XXX, for the provision of such services (the "Other Entities"). The parties further acknowledge that Buyer shall be assuming certain of PAM's rights, duties and obligations under the terms of such agreement with WorldCom (the "WorldCom Agreement") as set forth hereinabove. The parties acknowledge that WorldCom provides XXX with a "Master Xxxx" for all charges for long distance telephone services (including any applicable taxes thereon) which are provided to XXX, the XXX Entities and the Other Entities. The parties agree that XXX shall continue to receive the "Master Xxxx" from WorldCom after the closing of this Agreement, and shall continue to pay to WorldCom the total amount designated on the "Master Xxxx" on a monthly basis. The parties further agree that Buyer shall reimburse to XXX, within ten (10) days of receiving an invoice therefor, for all charges, taxes and itemized expenses on the "Master Xxxx", after determining that the requested reimbursement is correct. The XXX Entities shall be billed by Firstel in the same manner as customers of Firstel. The parties agree that the provisions of this Section 14 Subsection 9(c) shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance apply as of the Property under any Service Contracts or otherwisedate of closing of this Agreement and shall expire on upon the expiration of the WorldCom Agreement, includingwhich shall be June 30, without limitation1999. Notwithstanding anything else contained herein to the contrary, all utilities servicing it is agreed that the Propertyamounts to be received from customers, and any dues and assessments of home or condominium owners’ associations, the amount owed by the Business with regard to the WorldCom Service Agreement shall be prorated between Purchaser and Seller as of the Closing Datedate of closing. All statements to be forwarded to customers subsequent to the date of closing shall be forwarded by Firstel and amounts received by Firstel attributable to calls made prior to the date of closing shall be paid to Seller less sales and excise taxes related thereto which shall be paid by Firstel. Similarly, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, reimburse Firstel for any and such collections, if any, shall be accounted all amounts owed to WorldCom for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately calls made prior to the day which is sixty (60) days date of closing, but billed after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofclosing.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Asset Purchase Agreement (Advanced Communications Group Inc/De/)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing6.7.1. Rents, all normal and customarily proratable itemscommon area charges, includingescalations, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees tenant reimbursements (other than security deposits) payable under any the Tenant Leases on (collectively, the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of "Rents") for the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, portions thereof shall be prorated between Purchaser and as of the Close of Escrow, except that no proration shall be made for Rents not received by Seller as of the Closing Date, Close of Escrow (hereinafter called the "Delinquent Rents"). Buyer shall have no liability to Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year Delinquent Rents, but Buyer agrees to use "commercially reasonable efforts" (as hereinafter defined) for a period of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of six months after the Closing Date, but Purchaser shall make a commercially reasonable attempt Date to collect the same Delinquent Rents. For purposes of this Paragraph, the phrase "commercially reasonable efforts" shall mean that Buyer, through its collection department, shall periodically send written invoices to the tenants who owe the Delinquent Rents with a request for Seller's benefit after Closing, but payment and shall periodically call such tenants to request payment of the Delinquent Rents. Buyer shall not be required to initiate legal proceedings take any other action in order to satisfy the "commercially reasonable efforts" standard and specifically, without limiting the generality of the foregoing, Buyer shall not be required to file a lawsuit or eviction action, place the tenant in default, engage a third-party collection agency or law firm to aid in collection, lock-out or attempt to evict the tenant or exercise other similar landlord remedies under such attemptTenant Lease. Further, Seller shall not contact any tenants from and after the Closing Date. Amounts collected by Buyer from tenants owing Delinquent Rents shall be applied first to current amounts owed by such tenant and accruing on or after the Close of Escrow, then to any Delinquent Rents owing for the rent period during which the closing occurred (such amount to be prorated between Buyer and Seller as provided herein), and such collectionsthe remainder, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately to Delinquent Rents owing prior to the day rent period during which the closing occurred. Any such amounts applicable to Delinquent Rents received by Buyer shall be promptly forwarded to Seller. All security deposits received by Seller from any tenant under an existing Tenant Lease shall be paid over to Buyer at the Close of Escrow.
6.7.2. General real estate taxes for the then current year relating to the Property shall be prorated as of the Close of Escrow. If the Close of Escrow shall occur before the tax rate is sixty fixed for the then current year, the apportionment of taxes shall be made on the basis of the tax rate for the immediately preceding year applied to the latest assessed valuation of the Property, provided that, if the taxes actually due for the current year are more or less than the taxes for the preceding year, then within thirty (6030) days after the Closing Dateissuance of the then current year's tax xxxx, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand Buyer shall adjust the tax proration of such taxes and Seller or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to SellerBuyer, as the case may be, a payment in an amount which reflects (i) net adjustments shall pay to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) other any and all rents delinquent and unpaid on amount required as a result of such adjustment; this covenant shall not merge with the Closing Date and subsequently collected deed delivered hereunder but shall survive the Close of Escrow. All special taxes or assessments assessed prior to the Close of Escrow shall be paid by PurchaserSeller, and (b) any savings resulting from any tax abatements on those assessed after the Property for the year Close of Closing resulting from a challenge brought Escrow shall be paid by either party hereto and the costs or expenses incurred by the challenging party in that regardBuyer.
6.7.3. All other income from, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14of, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees including but not limited to pay all public utility charges, interest, maintenance charges, and service charges, shall be prorated as of the Close of Escrow. To the extent that information for any such taxes proration is not available at the Close of Escrow, the parties shall effect such proration within ninety (90) days after Close of Escrow. If, however, the proration of percentage rental from any tenant or any other item or income or expense cannot be made within ninety (90) days after the Close of Escrow, then the proration of such item for each such tenant shall be made within ten (10) days after the information relating to such item becomes available. Percentage rents for each Tenant Lease shall be prorated on the basis of the number of days elapsed during the tenant's percentage rent period as of the Close of Escrow and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering not on the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with basis of the amount of the tenant's sales which accrued during such percentage rent period as of the Close of Escrow. At the end of 2003, Buyer shall calculate year-end adjustments for the calendar year in which the Close of Escrow occurred for common area maintenance expenses, taxes, and insurance owed by or to any tenant under the Tenant Leases, and all deposits held Buyer shall forward to Seller any amounts paid by tenants to Buyer which amounts are for the payment of such tenant's pro rata share of taxes to the extent such taxes are attributable to that portion of the tax year during which Seller owned the Property and for which taxes Seller gave Buyer a credit at the Close of Escrow. If based on such year-end calculations any tenants owe additional sums to the landlord for their pro rata share of common area maintenance expenses, taxes, and insurance under their respective Tenant Leases, Buyer agrees to send to such tenants on behalf of Seller invoices for those sums owed by utility companies with respect such tenants and attributable to the portion of the annual period including the Close of Escrow during which Seller owned the Property and remit to Seller any amounts paid by tenants and received by Buyer in payment of such amounts; provided, however, Buyer shall only send such invoices to the tenants on behalf of Seller if Seller delivers to Buyer such invoices plus all supporting information and documentation to enable Buyer to respond to tenant inquiries regarding such invoices. If based on such year-end calculations the landlord owes a refund, credit, or other sums to any one or more tenants under the Tenant Leases for an overpayment of such tenant's or tenants' pro rata share of common area maintenance expenses, taxes, and insurance, Seller agrees to pay to Buyer an amount equal to such refunds, credits, or other sums, in the aggregate, owed to such tenants, which sums are attributable to the portion of the annual period including the Close of Escrow during which Seller owned the Property. The provisions of this subparagraph shall survive the closing.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingExcept as otherwise provided herein or in the Time Brokerage Agreements, all normal income and customarily proratable itemsexpenses arising from the conduct of the business and operations of the Cox Stations and the AFM Stations shall be prorated between Cox and AFM in accordance with generally accepted accounting principles as of 12:01 a.m., includingon the Closing Date. Such prorations shall include, without limitation, all ad valorem taxes and assessments assessed against the Propertyapplicable property taxes, prepaid business and license fees, annual FCC regulatory fees, power and utility expenses, rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred (excluding amounts paid as capital expenditures in connection with real property, whether leased or owned), and similar prepaid and deferred items attributable to the ownership and operation or maintenance of the Property under any Service Contracts or otherwiseStations. The parties shall provide each other a list of all known proratable items and payables for the Stations at least five (5) days before the Closing Date;
(b) The prorations and adjustments contemplated by this Section, including, without limitation, all utilities servicing to the Property, and any dues and assessments of home or condominium owners’ associationsextent practicable, shall be prorated between Purchaser made on and Seller as of the Closing Date. As to those prorations and adjustments not reasonably capable of being ascertained on the Closing Date, Seller being charged adjustments and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as accordance with the procedures set forth in Sections 4.2(c) and 4.2(d);
(c) Within ninety (90) days of the Closing Date, but Purchaser Cox shall make deliver to AFM a commercially schedule of its proposed prorations (which shall set forth in reasonable attempt detail the basis for those determinations) (the "Cox Proration Schedule"). The Cox Proration Schedule shall be conclusive and binding upon AFM unless AFM provides Cox with written notice of objection (the "Notice of Disagreement") within thirty (30) days after AFM's receipt of the Cox Proration Schedule, which notice shall state the prorations of expenses proposed by AFM ("AFM's Proration Amount"). Cox shall have fifteen (15) days from receipt of a Notice of Disagreement to collect accept or reject AFM's Proration Amount. Payment by AFM or Cox, as the same case may be, of the proration amounts determined pursuant to this Section 4.2(c) shall be due fifteen (15) days after the last to occur of (i) AFM's acceptance of the Cox Proration Schedule or failure to give Cox a timely Notice of Disagreement and (ii) Xxx'x acceptance of AFM's Proration Amount or failure to reject AFM's Proration Amount within fifteen (15) days of receipt of a Notice of Disagreement;
(d) Within ninety (90) days of the Closing Date, AFM shall deliver to Cox a schedule of its proposed prorations (which shall set forth in reasonable detail the basis for Sellerthose determinations) (the "AFM Proration Schedule"). The AFM Proration Schedule shall be conclusive and binding upon Cox unless Cox provides AFM with a Notice of Disagreement within thirty (30) days after Xxx'x receipt of the AFM Proration Schedule, which notice shall state the prorations of expenses proposed by Xxx ("Xxx'x Proration Amount"). AFM shall have fifteen (15) days from receipt of a Notice of Disagreement to accept or reject Xxx'x Proration Amount. Payment by Cox or AFM, as the case may be, of the proration amounts determined pursuant to this Section 4.2(d) shall be due fifteen (15) days after the last to occur of (i) Xxx'x acceptance of the AFM Proration Schedule or failure to give AFM a timely Notice of Disagreement and (ii) AFM's benefit after Closingacceptance of Xxx'x Proration Amount or failure to reject Xxx'x Proration Amount within fifteen (15) days of receipt of a Notice of Disagreement; and
(e) In the event of any disputes between the parties as to the prorations and adjustments described in this Section, but the amounts not in dispute shall not nonetheless be paid at the time provided in this Section and such disputes shall be determined by an independent certified public accountant of national recognition (other than a firm which then serves as the independent auditor for Cox or AFM or any of their respective affiliates) mutually acceptable to the parties with the fees and expenses of such accountant being paid one half by Cox and one half by AFM. Any payment required by Cox to initiate legal proceedings AFM or by AFM to Cox, as the case may be, under this Section shall be paid by wire transfer of immediately available funds to the account of the payee with a financial institution in the United States as designated by such attemptparty in the AFM Proration Schedule or Cox Proration Schedule, as the case may be. If either Cox or AFM fails to pay when due any amount under Section 4.2(c) or 4.2(d), interest on such amount will accrue from the date payment was due to the date such payment is made at a per annum rate equal to the Prime Rate plus two percent (2%), and such collectionsinterest shall be payable upon demand. Notwithstanding the provisions of Section 4.2(c), (d) and (e) of this Agreement, if any, shall the amount of any taxes to be accounted for between Purchaser and Seller on the Reconciliation Date prorated pursuant to this Section 4.2 is not known by ninety (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (6090) days after the Closing Date, or then the amount will be estimated as of such other date as may be agreed upon in writing by Seller date, and Purchaser in order once the amount of such taxes is known, AFM shall pay to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to PurchaserCox, or Purchaser hereby agrees to Cox shall pay to SellerAFM, as the case may be, the net amount due as a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for actual apportionment of such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions Sellers shall bear all personal property and ad valorem tax liability with respect to the WSOD Assets and the EJV Assets if the Lien or assessment arises with respect to periods prior to the WSOD/EJV Option Closing Date irrespective of this Section 14 shall survive Closing the reporting and not be merged therein.
(a) At Closingpayment dates of such taxes. All other property taxes, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against similar recurring taxes and fees on the PropertyWSOD Assets and the EJV Assets, prepaid rents and all lease payments, salaries and other expenses and fees compensation payable to employees or officers or similar recurring payments under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associationsagreements that are WSOD/EJV Designated Contracts, shall be prorated for the applicable period between Purchaser and the applicable Seller as of 12:01 a.m. local time on the WSOD/EJV Option Closing Date. All payments to be made by Purchaser or Sellers in accordance with this Section 9.15 shall be made, to the extent then determinable (and to the extent not determinable as shall be estimated by Purchaser in good faith as of the WSOD/EJV Option Closing), at the WSOD/EJV Option Closing Date with such payments deposited into escrow until due, or to the extent not determinable as of the WSOD/EJV Option Closing Date, Seller being charged and credited for all of same up to promptly following the determination thereof, with such date and Purchaser being charged and credited for all of same on and after such datepayments deposited into escrow until due. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially have the right of reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, review and such collections, if any, shall be accounted for between Purchaser approval of Sellers’ property Tax Returns and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the PropertyWSOD/EJV Business and the right to contest any assessments by which Purchaser may be adversely affected. Purchaser and Sellers shall reasonably cooperate with respect to any review, contest or challenge of any tax return or assessment. Sellers and Purchaser shall also undertake a reconciliation and allocation procedure using the mechanism set out above for the reconciliation and allocation of payroll expenses and costs.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not All matters involving prorations, credits or adjustments to be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred made in connection with the operation or maintenance Closing and not specifically provided for in another section of this Agreement shall be adjusted in accordance with this Section 4.2. Except as otherwise set forth herein, all items to be prorated pursuant to this Section 4.2 shall be prorated as of 11:59 P.M. on the day immediately preceding the Closing Date, with Seller and Purchaser to be treated as the owners of the Property under any Service Contracts pursuant to the terms of the JV Agreement (as hereinafter defined), for purposes of prorations of income and expenses, on and after the Closing Date. Notwithstanding the foregoing, in the event that the Purchase Price is not disbursed to or otherwiseas directed by Seller on or before 3:00 p.m. (eastern time) on the Closing Date, includingthen, without limitationfor purposes of this Section 4.2, the Closing shall be deemed to have occurred on the next business day and all adjustments shall be recomputed accordingly. Except as otherwise set forth herein, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, prorations shall be prorated between done in accordance with the customs with respect to title closings recommended by . All prorations and closing payments shall be made on the basis of a Proration Statement (as hereinafter defined) approved in writing by Purchaser and Seller as of hereinafter set forth. Not later than five (5) business days prior to the Closing Date, Seller being charged and credited for will deliver to Purchaser a proposed “Proration Statement” which shall contain per diem amounts of all of same up closing amounts to such date and Purchaser being charged and credited for all of same on and after such datebe prorated. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the Not later than three (3) business days prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make deliver to Seller a commercially reasonable attempt written statement of objection or agreement to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date Proration Statement. Not later than two (hereinafter defined).
(b2) On the first business day immediately days prior to the day which is sixty (60) days after the Closing Date, or Purchaser and Seller shall meet for the purpose of agreeing to and finalizing the Proration Statement, each of Purchaser and Seller hereby agree to act reasonably and in good faith in such other date as may discussions and determinations. Any errors in apportionments pursuant to this Section 4.2 shall be agreed upon in writing corrected by appropriate re-adjustment between Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments subsequent to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on when the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs charge or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser error is determined. The following items shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.prorated:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Boston Properties LTD Partnership)
Prorations. The provisions of this Section 14 shall survive Closing All income and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwiseshall be apportioned as of 12:01 a.m. on the Closing Date, including, without limitation, with Purchaser being deemed to be the owner of its Undivided Interest in the Property during the entire day on which the Closing Date occurs and being entitled to receive its share of all utilities servicing revenue of the Property, and being obligated to pay its share of all expenses of the Property, with respect to such day. All prorations and apportionments hereunder shall be based upon Seller’s Undivided Interest in the Property.
(i) Such prorated items shall include the following:
(A) all rents and any dues other income with respect to the Property received by the Closing Date, if any, and for the month in which the Closing occurs. Such proration of rents shall be based on a rent roll updated by Seller not less than one (1) day prior to the Closing Date;
(B) taxes and assessments (including personal property taxes) levied against the Property;
(C) subject to rights under Leases regarding payments or prorations of home utility payments by tenants (which will be governed by the rent proration provision described in Section 12(a)(i)(A) above), utility charges for which Seller 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 fifteen (15) days prior to the Closing) or, if unmetered, on the basis of a current xxxx for each such utility;
(D) any other operating expenses or condominium owners’ associationsother 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.
(ii) Notwithstanding anything contained in this Section 12, the following shall apply:
(A) Except as provided in the following sentence, all delinquent real estate taxes and assessments shall be prorated between paid by Seller at or before the Closing, together with any interest, penalties or other fees related to any delinquent taxes. In determining prorations relating to non-delinquent taxes, Purchaser shall be credited with an amount equal to the real estate taxes and assessments applicable to the period prior to the Closing Date, to the extent such amount has not been actually paid by Seller. In the event that Seller as of has paid prior to the Closing any real estate taxes or assessments related to the Property applicable to the period after the Closing Date, Seller being charged shall be entitled to a credit for such amount. In connection with the re-proration of real estate taxes and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for which a credit was given or a proration was made at the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but the parties shall not be required adjust the differences between them promptly upon demand being made therefor by either Seller or Purchaser. If, after the Closing, any additional real estate taxes or assessments applicable to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately period prior to the day which is sixty (60) days Closing Date are levied for any reason, including back assessments or escape assessments, then Seller shall pay all such additional amounts. If, after the Closing, Seller or Purchaser 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 Date, or such other date as may that is required to be agreed upon in writing by Seller and Purchaser in order refunded to have in hand the tax or any other assessments for tenant of the Property for the year of Closing shall be delivered to or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Sellerretained by, as the case may be, Purchaser 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, Seller. Purchaser shall pay all supplemental taxes resulting from the change in ownership and reassessment occurring as the result of the Closing pursuant to this Agreement;
(B) Charges referred to in Section 12.2(a)(i)(C) which are payable by any tenant directly to a payment in an amount which reflects (i) net adjustments third party shall not be apportioned hereunder, and Purchaser shall accept title subject to any of such charges unpaid and Purchaser shall look solely to the prorations made tenant responsible therefor for the payment of such charges. As to utilities and other operating expenses for which Seller is responsible, Seller may upon notice to Purchaser elect to pay one or more of all of said items accrued to the date fixed for apportionment pursuant to this Agreement directly to the person or entity entitled thereto, and to the extent Seller so elects, such item shall not be apportioned hereunder, and Seller’s obligation to pay such item directly in such case shall survive the Closing or any termination of this Agreement;
(C) Purchaser shall take all steps necessary to effectuate the transfer of all utilities to the name of Purchaser as of Closing, where necessary, post deposits with the utility companies, and provide Seller with written evidence of the transfer at or prior to Closing. Seller shall be entitled to recover any and all deposits held by any utility company as of the Closing Date;
(D) Unpaid rent from a tenant delinquent at Closing under Section 14.(a), above, including, without limitation, collected by Purchaser or Seller after the date of Closing shall be delivered as follows: (a) if Seller collects any and all rents such unpaid delinquent and unpaid on rent, Seller shall, within fifteen (15) days after the receipt thereof, deliver to Purchaser any such rent which Purchaser is entitled to hereunder relating to the date of the Closing Date and subsequently collected by Purchaserany period thereafter, and (b) if Purchaser collects any savings resulting from such unpaid delinquent rent, Purchaser shall, within fifteen (15) days after the receipt thereof, deliver to Seller any tax abatements on such rent to which Seller are entitled hereunder relating to the Property for period prior to the year date of Closing. The parties agree that (i) all rent received by Seller or Purchaser within the first thirty (30) day period after the date of Closing resulting from a challenge brought by either party hereto tenant delinquent at Closing shall be applied first to delinquent rent, if any, in the order of their maturity, and the costs or expenses incurred by the challenging party in that regardthen to current rent, and (ii) any costs all rent received by Seller or Purchaser after the first thirty (30) day period after the date of Closing from a tenant delinquent at Closing shall be applied first to current rent and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else then to the contrary in this Section 14delinquent rent, if any, in the Property has been assessed for property tax purposes at such rates as would result inverse order of maturity. Purchaser will endeavor after Closing to collect all rents in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership the usual course of Purchaser’s operation of the Property, but Purchaser hereby agrees will not be obligated to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.institute any lawsuit or other collection procedures to collect delinquent rents, except in Purchaser’s sole discretion;
(dE) At After Closing, Seller willshall be responsible for preparing a reconciliation of common area maintenance (the “CAM”) payments made by tenants under the Leases for calendar year 2011 and prior to Closing, at its election in accordance with the Leases. To the extent CAM payments made by tenants on or after [ ] and in its sole discretion, either deliver or credit prior to Purchaser any and all tenant security deposits then actually held Closing (the “Pre-Closing Payments”) exceed common area expenses for the Property paid by Seller under Leases covering during such period, as reasonably determined by Purchaser after the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will pay such excess amounts to Purchaser within fifteen (15) days after such determination is made and written notice thereof is provided by Purchaser to Seller. To the extent the Pre-Closing Payments are less than the common area expenses for the Property paid by Seller during such period, as reasonably determined by Purchaser after the Closing, Purchaser will pay such amounts to Seller within fifteen (15) days after such determination is made and written notice thereof is provided by Purchaser to Seller. Purchaser shall make such determination as soon as possible after the Closing and in all events on or before the date required under the Leases;
(F) The net proration credit to or charge against Seller on account of the prorations adjustments to be credited at made upon the Closing with shall be reflected through an adjustment to cash portion of the amount Purchase Consideration. Any other proration adjustments made following the Closing shall be made in cash; and
(G) If any prorations hereunder cannot be calculated accurately on the Closing Date, then they shall be calculated as is soon after the Closing Date as feasible. Either party owing the other party a sum of any and all deposits held money based on behalf of Seller by utility companies with respect such subsequent proration(s) shall promptly pay said sum to the Propertyother party, 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 date of payment if payment is not made within ten (10) business days after delivery of a xxxx therefor. Once all revenue and expense amounts have been finally and completely ascertained, Purchaser shall prepare a final proration statement which shall be conclusively deemed to be accurate and final absent manifest error.
Appears in 1 contract
Prorations. The provisions of this Subject to Section 14 shall survive Closing and not be merged therein.
(a) At Closing2.4(b), all normal expenses arising from the operation of the Channel, including business and customarily proratable itemslicense fees, includingutility charges, without limitation, all ad valorem real and personal property taxes and assessments assessed levied against the PropertyAssets, prepaid rents property and equipment rentals, applicable copyright or other expenses fees, sales and fees payable under any Leases on the Propertyservice charges, and similar prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associationsdeferred items, shall be prorated between Purchaser PCC and Seller as Travel in accordance with the principle that Travel shall be responsible for all expenses, costs, liabilities, and obligations allocable to the operations of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items Channel for the year of Closing have not yet been made, then any such prorations shall be based upon period prior to the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attemptEffective Time, and such collectionsPCC or the Designated Affiliate, if anyapplicable, shall be accounted responsible for between Purchaser all expenses, costs, liabilities, and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior obligations allocable to the day which is sixty (60) days operations of the Channel for the period after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order Effective Time. To effectuate the proration of expenses pursuant to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”this Section 2.4(a), Seller hereby agrees but subject to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a2.4(b), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from Travel shall receive a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else credit equal to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any expenses, costs, liabilities, or obligations that are paid or incurred by Travel and all deposits held on behalf of Seller by utility companies with respect are allocable to the Propertyoperations of the Channel for the period after the Effective Time and PCC shall receive a credit equal to the amount of any expenses, costs, liabilities, or obligations that are paid or incurred by PCC or the Designated Affiliate, if applicable, and are allocable to the operations of the Channel for the period before the Effective Time. Any determination whether any expense, cost, liability, or obligation is allocable to or relates to the period before or after the Effective Time, for purposes of calculating prorations pursuant to this Section 2.4(b) or the assumption of liabilities and obligations pursuant to Section 2.5 (or the exclusion therefrom pursuant to Section 2.6(c)) shall be based on the extent to which all facts and circumstances necessary for the accrual of such expense, cost, liability, or obligation in accordance with generally accepted accounting principles have been satisfied as of the Effective Time, except that any payment obligation arising under any Programming Agreement that is an Assumed Contract shall be allocable to and shall relate to the period during which the payment is required to be made.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Paxson Communications Corp)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable itemsRents, including, without limitation, percentage rents, if any, and any additional charges and expenses payable by the Tenant under its Lease, all ad valorem as and when actually collected; real property taxes and assessments assessed against assessments; all other income from the Property; water, prepaid rents sewer and other expenses and fees utility charges; amounts payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwiseother agreements or documents; 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 prepaid by Seller), shall all be prorated 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 day of Closing), on the basis of a three hundred sixty-five (365) day year. All expenses under this Section 8.5 shall be prorated based upon the periods to which they relate and are applicable, regardless of when they are payable. Buyer shall reimburse Seller and Seller shall credit Buyer 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 collected after the Closing shall be applied and paid as provided in this Section 8.5(a). If the Tenant shall specifically designate a payment, other than a monthly installment of rent, as being attributable to a specific period of time or for a specific purpose, including, without limitation, all utilities servicing for operating expenses or real estate tax payments which were not paid or were underpaid by the PropertyTenant 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, any payment received from the 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 Lease on or after the Closing, and then such payments shall be paid to Seller to the extent of any dues rent or other sums owing to Seller for periods prior to Closing. Buyer shall use reasonable efforts to collect such rents and assessments other sums owing to Seller. Seller retains the right to collect any such rents and other sums from the Tenant after Closing; provided, however, that Seller shall have no right to cause the Tenant to be evicted or to exercise any other landlord remedy against the Tenant other than to xxx for collection and provided further that Seller shall give Buyer thirty (30) days’ prior written notice before filing suit against the Tenant. To the extent any expenses or charges for the Property are paid by the Tenant to the landlord under its Lease on an estimated basis, for which a future reconciliation of home actual to estimates is to be performed, Seller and Buyer agree that: (i) (A) Seller shall be responsible to send all reconciliations of such costs and expenses for 2010 prepared by Seller and delivered to Buyer, (B) Seller and Buyer shall cooperate as necessary to prepare such reconciliations, (C) Buyer shall be responsible for collecting from the Tenant and paying to Seller any amounts owed to Seller related thereto if and when received by Buyer, and (D) Seller shall be responsible to pay Buyer any overpayments of such costs and expenses owed to the Tenant, which payment obligations to Seller or condominium owners’ associationsBuyer, as applicable, shall survive Closing, and (ii) Seller and Buyer shall make a preliminary adjustment at Closing with respect to such costs and expenses for 2011 based on a comparison for the Tenant premises of the actual expenses for the Property paid by Seller for 2011 as of the Closing Date allocable to that space to the estimated expenses for the Property paid by the Tenant to Seller for 2011 (the “Tenant Payments”). The preliminary adjustment for 2011 shall be prorated between Purchaser and calculated as follows: to the extent the Tenant Payments made to Seller as of the Closing Date, Seller being charged and credited for all of same up Date with respect to such date and Purchaser being charged and credited for all of same on and after such date. If 2011 exceed the assessments for any such proratable items actual expenses for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected Property paid by Seller as of the Closing DateDate with respect to 2011 allocable to that space, but Purchaser Buyer shall receive a credit for the excess Tenant Payments. To the extent actual expenses for the Property paid by Seller for 2011 as of the Closing Date allocable to that space exceed the Tenant Payments as of the Closing Date for 2011, Buyer shall pay Seller such amount when and to the extent such payments are collected from the Tenant. Subsequent to Closing, Buyer shall assume all rights and obligations to collect from or pay to the Tenant any reconciliation amounts. Any prorations based on an estimated basis shall be subject to reproration upon the final determination of such amounts. The amount of any cash security deposit held by Seller under the Lease shall be credited against the Purchase Price (and Seller shall be entitled to retain such cash security deposit). If the security deposit is held in the form of a letter of credit, Seller shall (i) deliver the original letter of credit to Buyer at Closing, (ii) execute and deliver at Closing such other instruments as the issuer of such letter of credit shall reasonably require in order to cause the named beneficiary under such letter of credit to be changed to Buyer, and (iii) provide Buyer with a credit at Closing against the Purchase Price in the amount of any transfer costs associated with such transfer. 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. 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 received from the Tenant, 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 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 the Tenant from and after Closing and to the manner in which such payments were applied, and shall make a commercially their books and records available for inspection by the other party during ordinary business hours upon reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, advance notice. Buyer shall be accounted entitled to receive a credit against the Purchase Price at Closing for between Purchaser the amount of the rent subsidy to the extent more particularly set forth in Exhibit G attached hereto and Seller on the Reconciliation Date (hereinafter defined)made a part hereof.
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects Buyer shall pay: (i) net adjustments one-half (1/2) of the escrow charges and all recording fees; (ii) the title insurance costs in connection with the deletion of the area and boundary exception from the Title Policy and any endorsement or reinsurance charges; (iii) the cost of any update of the Survey; and (iv) all of its own legal fees. Seller shall pay: (i) one-half (1/2) of the escrow charges; (ii) the cost of “standard” coverage for the Title Policy (excluding the premium for the deletion of the area and boundary exception); (iii) all transfer taxes, (iv) all fees and costs related to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on assignment of the Closing Date and subsequently collected by PurchaserGround Lease, and (bv) all of its own legal fees. The parties will execute and deliver any savings resulting from any required transfer or other similar tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else declarations to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller appropriate governmental entity at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Prorations. The provisions Purchase Price shall be increased or decreased as required to effectuate the proration of this Section 14 shall survive Closing expenses relating to the operation of WNGS. All expenses arising solely from the operations of WNGS and not be merged therein.
(a) At Closingincurred by WNGS, all normal including business and customarily proratable itemslicense fees, includingutility charges, without limitation, all ad valorem real and personal property taxes and assessments assessed levied against the PropertyBroadcasting Assets, prepaid rents property and equipment rentals, applicable copyright or other expenses fees, sales and fees payable under any Leases on the Propertyservice charges, employee compensation (including wages and salaries, accrued sick leave, severance pay and personal days) and similar prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associationsdeferred items, shall be prorated between Purchaser Seller and Buyer in accordance with the principle that Seller shall be responsible for all expenses, costs and liabilities allocable to the operations of WNGS for the period prior to and including the Effective Time, and Buyer shall be responsible for all expenses, costs and obligations allocable to the operations of WNGS for the period after the Effective Time as determined in accordance with Section 2.2.3 below, subject to the following:
(a) There shall be no adjustment for, and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Datesolely liable with respect to, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, Liabilities and such collections, if any, shall be accounted for between Purchaser and Seller obligations under any Contracts listed on the Reconciliation Date (hereinafter defined)SCHEDULE 1-F or under any WNGS Employee Plans.
(b) On Payments due under film or programming license agreements for the first business day immediately month in which the Closing occurs shall be prorated based on the number of days in such month on or before the Effective Time and the number of days in such month after and including the Effective Time.
(c) There shall be no adjustment for any difference between the value of the goods or services to be received by Seller as of the Effective Time under trade or barter agreements relating to WNGS and the value of any advertising time remaining to be run by Seller as of the Effective Time under trade or barter agreements relating to WNGS ("Trade Agreements"); PROVIDED, HOWEVER, that this provision shall not apply to barter arrangements that do not arise under programming Contracts or which pertain to goods or services to be retained by Seller or her Affiliates after the Effective Date, which shall be prorated.
(d) Seller shall be responsible for (i) any overdue amounts under film or programming license agreements to the extent relating to periods prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regardClosing, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to payments that contractually have been deferred but for which Seller or WNGS have already received the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership benefit of the Property, Purchaser hereby agrees asset to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxeswhich they relate prior to Closing.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Asset Purchase Agreement (Granite Broadcasting Corp)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAll income and expenses arising from the conduct of the business and operations of the Cox Stations and the RRC Station on the one hand, all normal and customarily proratable itemsthe Salem Station, includingon the other hand, shall be prorated between Cox and Salem in accordance with generally accepted accounting principles as of 12:01 a.m., on the Closing Date. Such prorations shall include, without limitation, all ad valorem taxes and assessments assessed against the Propertyapplicable property taxes, prepaid business and license fees, annual FCC regulatory fees, power and utility expenses, rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred (excluding amounts paid as capital expenditures in connection with real property, whether leased or owned), and similar prepaid and deferred items attributable to the ownership and operation or maintenance of the Property under any Service Contracts or otherwiseStations. The parties shall use commercially reasonable efforts to provide each other a list of all known proratable items and payables for the Stations at least five (5) days before the Closing Date;
(b) The prorations and adjustments contemplated by this Section, including, without limitation, all utilities servicing to the Property, and any dues and assessments of home or condominium owners’ associationsextent practicable, shall be prorated between Purchaser made on and Seller as of the Closing Date. As to those prorations and adjustments not ascertained on the Closing Date, Seller being charged adjustments and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as accordance with the procedures set forth in SECTIONS 4.2(C) and 4.2(D);
(c) Within ninety (90) days of the Closing Date, but Purchaser Cox shall make deliver to Salem a commercially schedule of its proposed prorations (which shall set forth in reasonable attempt to collect detail the same basis for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, those determinations) for the Salem Station (the "Cox Proration Schedule"). The Cox Proration Schedule shall be accounted for between Purchaser conclusive and Seller on binding upon Salem unless Salem provides Cox with written notice of objection (the Reconciliation Date "Notice of Disagreement") within one hundred twenty (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60120) days after the Closing Date, which notice shall state the prorations of expenses proposed by Salem ("Salem's Proration Amount"). Cox shall have fifteen (15) days from receipt of a Notice of Disagreement to accept or such other date as may be agreed upon in writing reject Salem's Proration Amount. Payment by Seller and Purchaser in order to have in hand the tax Salem or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to SellerCox, as the case may be, a payment in an amount which reflects of the proration amounts determined pursuant to this SECTION 4.2(C) shall be due fifteen (15) days after the last to occur of (i) net adjustments Salem's acceptance of the Cox Proration Schedule or failure to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year give Cox a timely Notice of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, Disagreement and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(iiCox'x xxxeptance of Salem's Proration Amount or failure to reject Salem's Proration Amount within fifteen (15) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon days of receipt of a change in land usage or ownership Notice of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.Disagreement;
(d) At ClosingWithin ninety (90) days of the Closing Date, Seller willSalem shall deliver to Cox a schedule of its proposed prorations (which shall set forth in reasonable detail the basis for those determinations) for the Cox Stations and the RRC Station (the "Salem Proration Schedule"). The Salem Proration Schedule shall be conclusive and binding upon Cox unless Cox provides Salem with a Notice of Disagreement within one hundred twenty (120) days after the Closing Date, which notice shall state the prorations of expenses proposed by Cox ("Cox'x Xxxration Amount"). Salem shall have fifteen (15) days from receipt of a Notice of Disagreement to accept or reject Cox'x Xxxration Amount. Payment by Cox or Salem, as the case may be, of the proration amounts determined pursuant to this SECTION 4.2(D) shall be due fifteen (15) days after the last to occur of (i) Cox'x xxxeptance of the Salem Proration Schedule or failure to give Salem a timely Notice of Disagreement and (ii) Salem's acceptance of Cox'x Proration Amount or failure to reject Cox'x Xxxration Amount within fifteen (15) days of receipt of a Notice of Disagreement; and
(e) In the event of any disputes between the parties as to the prorations and adjustments described in this Section, the amounts not in dispute shall nonetheless be paid at its election the time provided in this Section and such disputes shall be determined by an independent certified public accountant of national recognition (other than a firm which then serves as the independent auditor for Cox or Salem or any of their respective affiliates) mutually acceptable to the parties with the fees and expenses of such accountant being paid one half by Cox and one half by Salem. Any payment required by Cox to Salem or by Salem to Cox, as the case may be, under this Section shall be paid by wire transfer of immediately available funds to the account of the payee with a financial institution in its sole discretionthe United States as designated by such party in the Salem Proration Schedule or Cox Proration Schedule, as the case may be. If either deliver Cox or credit Salem fails to Purchaser pay when due any amount under SECTION 4.2(C) or 4.2(D), interest on such amount will accrue from the date payment was due to the date such payment is made at a per annum rate equal to the Prime Rate plus two percent (2%), and all tenant security deposits then actually held by Seller under Leases covering such interest shall be payable upon demand. Notwithstanding the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Furtherprovisions of SECTION 4.2(C), Seller will be credited at Closing with (D) and (E) of this Agreement, if the amount of any taxes to be prorated pursuant to this SECTION 4.2 is not known by ninety (90) days after the Closing Date, then the amount will be estimated as of such date, and all deposits held on behalf once the amount of Seller by utility companies with respect such taxes is known, Salem shall pay to Cox, or Cox shall pay to Salem, as the Propertycase may be, the net amount due as a result of the actual apportionment of such taxes.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAll income and expenses arising from the conduct of the business and operations of the Cox Stations and the RRC Station on the one hand, all normal and customarily proratable itemsthe Salem Station, includingon the other hand, shall be prorated between Cox and Salem in accordance with generally accepted accounting principles as of 12:01 a.m., on the Closing Date. Such prorations shall include, without limitation, all ad valorem taxes and assessments assessed against the Propertyapplicable property taxes, prepaid business and license fees, annual FCC regulatory fees, power and utility expenses, rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred (excluding amounts paid as capital expenditures in connection with real property, whether leased or owned), and similar prepaid and deferred items attributable to the ownership and operation or maintenance of the Property under any Service Contracts or otherwiseStations. The parties shall use commercially reasonable efforts to provide each other a list of all known proratable items and payables for the Stations at least five (5) days before the Closing Date; (b) The prorations and adjustments contemplated by this Section, including, without limitation, all utilities servicing to the Property, and any dues and assessments of home or condominium owners’ associationsextent practicable, shall be prorated between Purchaser made on and Seller as of the Closing Date. As to those prorations and adjustments not ascertained on the Closing Date, Seller being charged adjustments and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as accordance with the procedures set forth in SECTIONS 4.2(C) and 4.2(D); (c) Within ninety (90) days of the Closing Date, but Purchaser Cox shall make deliver to Salem a commercially schedule of its proposed prorations (which shall set forth in reasonable attempt to collect detail the same basis for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, those determinations) for the Salem Station (the "Cox Proration Schedule"). The Cox Proration Schedule shall be accounted for between Purchaser conclusive and Seller on binding upon Salem unless Salem provides Cox with written notice of objection (the Reconciliation Date "Notice of Disagreement") within one hundred twenty (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60120) days after the Closing Date, which notice shall state the prorations of expenses proposed by Salem ("Salem's Proration Amount"). Cox shall have fifteen (15) days from receipt of a Notice of Disagreement to accept or such other date as may be agreed upon in writing reject Salem's Proration Amount. Payment by Seller and Purchaser in order to have in hand the tax Salem or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to SellerCox, as the case may be, a payment in an amount which reflects of the proration amounts determined pursuant to this SECTION 4.2(C) shall be due fifteen (15) days after the last to occur of (i) net adjustments Salem's acceptance of the Cox Proration Schedule or failure to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year give Cox a timely Notice of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, Disagreement and (ii) Cox's acceptance of Salem's Proration Amount or faixxxx to reject Salem's Proration Amount within fifteen (15) days of receipt of a Notice of Disagreement; (d) Within ninety (90) days of the Closing Date, Salem shall deliver to Cox a schedule of its proposed prorations (which shall set forth in reasonable detail the basis for those determinations) for the Cox Stations and the RRC Station (the "Salem Proration Schedule"). The Salem Proration Schedule shall be conclusive and binding upon Cox unless Cox provides Salem with a Notice of Disagreement within one hundred twenty (120) days after the Closing Date, which notice shall state the prorations of expenses proposed by Cox ("Cox's Proration Amount"). Salem shall have fifteen (00) days from receipt of a Notice of Disagreement to accept or reject Cox's Proration Amount. Payment by Cox or Salem, as xxx xase may be, of the proration amounts determined pursuant to this SECTION 4.2(D) shall be due fifteen (15) days after the last to occur of (i) Cox's acceptance of the Salem Proration Schedule xx xxilure to give Salem a timely Notice of Disagreement and (ii) Salem's acceptance of Cox's Proration Amount or failure to reject Cox's Prxxxxxon Amount within fifteen (15) days of recxxxx of a Notice of Disagreement; and (e) In the event of any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else disputes between the parties as to the contrary prorations and adjustments described in this Section, the amounts not in dispute shall nonetheless be paid at the time provided in this Section 14and such disputes shall be determined by an independent certified public accountant of national recognition (other than a firm which then serves as the independent auditor for Cox or Salem or any of their respective affiliates) mutually acceptable to the parties with the fees and expenses of such accountant being paid one half by Cox and one half by Salem. Any payment required by Cox to Salem or by Salem to Cox, as the case may be, under this Section shall be paid by wire transfer of immediately available funds to the account of the payee with a financial institution in the United States as designated by such party in the Salem Proration Schedule or Cox Proration Schedule, as the case may be. If either Cox or Salem fails to pay when due any amount under SECTION 4.2(C) or 4.2(D), interest on such amount will accrue from the date payment was due to the date such payment is made at a per annum rate equal to the Prime Rate plus two ---- percent (2%), and such interest shall be payable upon demand. Notwithstanding the provisions of SECTION 4.2(C), (D) and (E) of this Agreement, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any taxes to be prorated pursuant to this SECTION 4.2 is not known by ninety (90) days after the Closing Date, then the amount will be estimated as of such date, and all deposits held on behalf once the amount of Seller by utility companies with respect such taxes is known, Salem shall pay to Cox, or Cox shall pay to Salem, as the Propertycase may be, the net amount due as a result of the actual apportionment of such taxes.
Appears in 1 contract
Samples: Asset Exchange Agreement (Salem Communications Corp /De/)
Prorations. (a) The provisions expenses and obligations set forth below shall be prorated as of this Section 14 11:59 p.m. on the business day immediately preceding the Closing Date, with Seller being responsible for that portion arising prior thereto and Buyer being responsible for that portion arising subsequent thereto:
(i) all governmental license, permit or franchise fees and all other fees, royalties, rentals or charges, not delinquent, paid or payable under any contracts shall survive be prorated on the basis of the number of days of the relevant fiscal or other time period which have elapsed through the Closing Date;
(ii) all real property taxes, personal property taxes, ad valorem obligations and not similar taxes imposed on a periodic basis, in each case levied with respect to the Purchased Assets (if any) shall be merged thereinprorated on the basis of the number of days of the relevant Tax year or period which have elapsed through the Closing Date; and
(iii) all charges and rents for utilities (including without limitation, electricity, fuel, water, sanitation and garbage disposal) and other services and goods furnished to, or in connection with, the operation of the Business shall be prorated on the basis of the number of days of the relevant time period which have elapsed through the Closing Date; provided that no deposits or prepaid amounts shall be prorated, but shall be included in the Purchased Assets.
(ab) At Closing, Seller shall use commercially reasonable efforts to cause all normal utility xxxxxxxx of Seller to be closed and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against billed by the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance respective utility companies as of the Property under Closing Date in order that utility charges may be separately billed for the period prior to the Closing Date and the period after the Closing Date. In the event any Service Contracts or otherwisesuch utility charges are not separately billed, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, they shall be prorated between Purchaser and Seller prorated, presuming that such charges were uniformly incurred during the billing period in question.
(c) If any item described in this Section 8.11 cannot be prorated, adjusted or determined as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations it shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected separately prorated, adjusted and determined as soon as possible thereafter with payment of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior an amount equal to the day which is sixty amount charged against any party being paid by such party to any other party by check within five (605) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership determination of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxescharge.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and All Taxes other than Transfer Taxes or Taxes based upon or related to income or receipts, including but not be merged therein.
(a) At Closinglimited to, all normal and customarily proratable itemsreal property taxes, includingpersonal property taxes, without limitation, all ad valorem obligations and similar taxes and assessments assessed against imposed on a periodic basis, in each case levied with respect to the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with Transferred Assets or the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing Programs for a taxable period which includes (but does not end on) the Property, and any dues and assessments of home or condominium owners’ associationsClosing Date, shall be prorated apportioned between Seller and Purchaser and Seller as of the Closing Date, Seller being charged and credited for all Date based on the number of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings days in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately taxable period prior to the day which Closing Date (the “Pre-Closing Period”) and the number of days in such taxable period following the Closing Date (the “Post-Closing Period”). Seller shall be liable for the proportionate amount of such taxes that is sixty (60) days attributable to the Pre-Closing Period. Within [***] after the Closing DateClosing, or such other date as may be agreed upon in writing by Seller and Purchaser in order shall present a reimbursement to have in hand which each is entitled under this Section 2.4(c) together with such supporting evidence as is reasonably necessary to calculate the tax proration amount. The proration amount shall be paid by the party owing it to the other within [***] after delivery of such statement. Thereafter, Seller shall notify Purchaser upon receipt of any bxxx for real or any other assessments personal property taxes relating to the Transferred Assets, part or all of which are attributable to the Post-Closing Period, and shall promptly deliver such bxxx to Purchaser who shall pay the same to the appropriate taxing authority, provided that if such bxxx covers the Pre-Closing Period, Seller shall also remit prior to the due date of assessment to Purchaser payment for the Property proportionate amount of such bxxx that is attributable to the Pre-Closing Period. In the event that either Seller or Purchaser shall thereafter make a payment for the year of Closing or for any other reason (in any eventwhich it is entitled to reimbursement under this Section 2.4(c), the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as other party shall make such reimbursement promptly but in no event later than [***] after the case may be, presentation of a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with statement setting forth the amount of any reimbursement to which the presenting party is entitled along with such supporting evidence as is reasonably necessary to calculate the amount of reimbursement. Any payment required under this Section and all deposits held on behalf not made within [***] of Seller by utility companies with respect delivery of the statement shall bear interest at the rate per annum determined, from time to time, under the Propertyprovisions of Section 6621(a)(2) of the Code for each day until paid.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ardea Biosciences, Inc./De)
Prorations. Except as may be otherwise expressly provided herein, all revenues, income and expenses (including utility expenses and credit card adjustments) of the Property with respect to the period prior to 12:01 a.m. on the Closing Date (but only including 50% of that 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 Property with respect to the 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 after the Closing Date) shall be for the account of Buyer. Seller shall deliver to Buyer the cash on hand at the Hotel on the Closing Date (except that cash which constitutes Seller’s 50% share of the room revenues). Only real property taxes and assessments and personal property taxes will be prorated inside of Escrow on the settlement statement; all other prorations shall be made outside of Escrow, in accordance with local custom in Los Angeles County, California, 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 or after the Closing Date and may include, but not be limited to, 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 the tax year in which Closing occurs, a re-adjustment shall occur, and the 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 the other party upon receipt of the invoice. Such invoice shall be accompanied by reasonable substantiating evidence. The provisions of this Section 14 5.3 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance delivery of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)Deed.
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apple REIT Seven, Inc.)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingContributor, NM, XXXX XX Member and the Company will each execute and deliver to the other parties the Closing Statement, showing, among other things, the amounts by which the Contribution Value is being adjusted as of the Closing Date, and all normal other prorations and customarily proratable itemsadjustments for income and expenses of the Contributed Entities and the Properties, including, without limitation, all ad valorem taxes and assessments assessed against the PropertyTaxes, prepaid rents rentals and other expenses and fees charges paid by Tenants under the Leases, security deposits, amounts payable under any Leases on the PropertyContracts, prepaid insurance, utilities, maintenance and other operating costs and expenses, and other items that are customarily prorated in real estate conveyance transactions, with Contributor being entitled to and responsible for one hundred percent (100%) of all income and expenses accrued and attributable to the period prior to, but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, not including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller and the Company being charged entitled to and credited responsible for one hundred percent (100%) of all of same up income and expenses accrued and attributable to such date and Purchaser being charged and credited for all of same on the period from and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On As soon as practicable after the first business day immediately prior to the day which is sixty Closing (60but in no event later than one hundred eighty (180) days after the Closing DateClosing, or such other date as may except with respect to prorations that cannot be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason completed within one hundred eighty (in any event, the “Reconciliation Date”180) days), Seller hereby agrees to cause Contributor, NM and the Company shall reconcile between themselves the amounts needing to be paid made after the Closing in accordance with this Agreement, using any updated information with respect to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects such matters then available. The Contribution Value shall be reconciled based on (i) net adjustments to the prorations capital contributions made at Closing under Section 14.(a)from October 1, above2018 through the day prior to, but not including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regardDate, and (ii) the amounts paid by Contributor under Section 9.5(j). With respect to any costs income or expenses for which prorations and adjustments that cannot be completed within one hundred eighty (180) days after the Closing, prorations and adjustments shall be made as soon as reasonably practicable after the Closing, once information with respect to such income and expenses incurred is available. In connection with prorations and adjustments contemplated by Purchaser under this Section 32.(b)(ii) hereof9.4, the parties shall act reasonably and in good faith.
(c) Notwithstanding anything else Each party shall provide the other parties reasonable access to the contrary in books, records, computer runs and other documents relating to the Contributed Entities and the Properties which contain information relevant to completing the prorations and adjustments contemplated by this Section 149.4, if provided that any such access shall be under the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership supervision of an employee and/or agent of the Propertydisclosing party. If the final prorations and adjustments, Purchaser hereby agrees as agreed to among the parties, shows any amount due to a party, the party owing such amount shall pay all such taxes amount (in immediately available funds) within five (5) Business Days after reaching agreement on the final prorations and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesadjustments.
(d) At This Section 9.4 shall survive Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Contribution Agreement (Phillips Edison Grocery Center REIT III, Inc.)
Prorations. The provisions of this Section 14 shall survive Closing a. Except as provided in the Interim Management Agreement, on and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Commencement Date, Seller being charged Current Operators and credited for all of same up New Operators shall prorate revenues and expenses pertaining to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items Facilities, utility charges for the year billing period in which the Commencement Date occurs, Assumed Contracts, prepaid income and expenses, the applicable state bed taxes or assessments, Provider Taxes and other related items of Closing have not yet been made, then any such revenue or expense attributable to the Facilities.
b. All prorations between the parties shall be made on the basis of actual days elapsed in the relevant accounting or revenue period and shall be based upon on the prior year’s assessmentsmost recent information available to the parties hereto. No prorations Utility charges which are not metered and read on the Commencement Date shall be made in relation to rents not collected as estimated based on prior charges, and shall be re-prorated within five (5) business days after receipt of statements therefor. Current Operators and New Operators shall jointly arrange for the turnover of the Closing Dateutility services, but Purchaser Current Operators shall make a commercially reasonable attempt not arrange to collect the same for Seller's benefit after Closingterminate any utility services without New Operators’ written consent, but which shall not be required unreasonably withheld, delayed or conditioned.
c. Except as otherwise set forth herein, all amounts owing from one party hereto to initiate legal proceedings in such attempt, and such collections, if any, the other party hereto that require adjustment after the Commencement Date shall be accounted for between Purchaser and Seller on the Reconciliation Date settled within thirty (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (6030) days after the Closing DateCommencement Date or, or in the event the information necessary for such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year adjustment is not available within said thirty (30) day period, within five (5) business days of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofsuch information being available.
(c) d. Notwithstanding anything else to the contrary in this Section 14contained herein, if to the Property has been assessed for property tax purposes at such rates as would result in reassessment extent Current Operators or New Operators obtain any American Rescue Plan Act (i.e.“ARPA”) grant funding that covers both the period prior to the Commencement Date and after the Commencement Date, "roll-back" taxesCurrent Operators and New Operators shall prorate the funds among the applicable party and pay any amounts owed to the other party within five (5) based upon a change in land usage or ownership business days of receipt of the Property, Purchaser hereby agrees funds. Current Operators and New Operators shall reasonable cooperate to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing come up with the amount of any and all deposits held on behalf of Seller by utility companies with respect a mutually agreeable Long Term Care Program Facility Budget to the Propertyextent required for the receipt of ARPA funds.
Appears in 1 contract
Prorations. The provisions (a) Current real estate taxes and assessments, personal property taxes, if any, rental income (including fixed monthly rents, additional rents, percentage rents, escalation rents, retroactive rents, any form of this Section 14 tax or operating expenses pass-throughs relating to the Leases, and any other sums and charges payable by tenants under the Leases) (collectively, “Rentals”), and all other items of income and expense with respect to the ownership, operation and maintenance of the Property shall survive be prorated between CarrAmerica and the Venture as of 12:01 AM on the Closing Date. Except as set forth below, all such prorations shall be based on the latest available information, and shall be made on the basis of a three hundred sixty-five (365) day year and on the basis of the accrual method of accounting. All such items attributable to the period to (but not including) the Closing Date shall be merged thereincharged or credited to CarrAmerica; all such items attributable to the period from and after the Closing Date shall be charged or credited to the Venture. All delinquent taxes, bonds and assessments, if any, on the Property shall be paid by CarrAmerica at Closing, and CarrAmerica shall remain liable after Closing for any escaped taxes or assessments against the Property attributable to the period prior to Closing.
(ab) At Rentals, delinquent Rentals and other income from the Property shall be prorated between CarrAmerica and the Venture only as and when collected. RREEF and CarrAmerica shall cause the Venture to use reasonable efforts to collect any delinquent Rentals after Closing; provided, however, in no event shall the Venture be required, nor shall CarrAmerica be permitted, to initiate litigation, or terminate or threaten to terminate any tenancy to obtain such amounts. Any Rentals received directly by CarrAmerica after Closing shall be delivered by CarrAmerica to the Venture, for proration in accordance with this Section. Subject to the remainder of this Section, CarrAmerica shall be entitled to any Rentals received by the Venture from tenants after the Closing to the extent such rentals relate to periods prior to the Closing Date. Any delinquent Rentals or other income collected pursuant to this Section shall be applied as follows:
(i) reimbursement for reasonable legal expenses incurred by the Venture in collecting such delinquent Rentals or other income, (ii) payment to the Venture of delinquent Rentals or other income which relate to periods from and following the Closing, and (iii) payment to CarrAmerica of delinquent Rentals applicable to periods prior to the Closing.
(c) The Venture shall be credited and CarrAmerica shall be debited with an amount equal to (i) all normal deposits or advance rentals in the nature of security deposits from tenants (and customarily proratable itemsany interest accrued thereon for the benefit of a tenant) and (ii) rent prepaid for the period from and after the Closing Date, if any, being held by CarrAmerica under the Leases. CarrAmerica shall be credited and the Venture shall be debited with any refundable deposits or bonds held by any utility, governmental agency or service provider with respect to the Property (to the extent the same are disclosed to RREEF and are assignable to and assumed by the Venture in connection with the transfer of the Property). In the event that CarrAmerica holds any security deposits in the form of a letter of credit, CarrAmerica and RREEF shall cooperate so as to cause the transfer such letter of credit to the Venture at Closing or as promptly as possible after the Closing and at CarrAmerica’s cost, or, if any such letter of credit is not transferable, CarrAmerica shall hold such letter of credit for the benefit of the Venture, in such manner as shall be satisfactory to RREEF in its reasonable judgment. The Venture shall indemnify CarrAmerica for any out of pocket costs or claims asserted against CarrAmerica with respect to any such letter of credit held by CarrAmerica for the benefit of the Venture.
(d) CarrAmerica shall be responsible for the payment of the costs of tenant improvements, leasing commissions and other tenant inducements provided for in the Leases executed before March 1, 2005 and for any future expansion of Xxxx Stores onto the approximately 13,642 square feet on Floor 1 (the “Future Ross Expansion”) (a draft amendment therefor dated January 9, 2005 was produced but not executed by the parties as indicated on Schedule 1 attached hereto) (but, except for the obligations of CarrAmerica with respect to Xxxx Stores leases described in this paragraph above or below, specifically excluding any leasing commissions, tenant improvement or other allowances arising in connection with any future expansions, extensions or renewals under any such Leases taking place after March 1, 2005 which shall be the obligation of the Venture); and CarrAmerica Pleasanton shall not receive any credit to its capital account in the Venture for any costs incurred by CarrAmerica with respect to such matters. CarrAmerica’s responsibility for tenant improvements, leasing commissions and other tenant inducements under the preceding sentence shall survive the Closing except to the extent the Venture receives a credit or escrowed funds for such costs at Closing. The parties acknowledge and agree that this Section 8.03(d) is intended to address the allocation of costs between CarrAmerica and the Venture for leasing related costs and that, subject to CarrAmerica paying the costs which it is required hereunder to pay, the Venture (and not CarrAmerica) shall be responsible for completing any tenant improvement obligations for any new leases executed after March 1, 2005. Notwithstanding anything to the contrary contained herein, with respect to any dispute with Xxxx Stores regarding tenant improvements, reception or lobby improvements or otherwise in connection with the Future Ross Expansion (the “Ross Dispute”), CarrAmerica, at its expense, shall reasonably control the prosecution of any mediation or other proceeding, and have the right, at its expense, to settle any such dispute by agreeing to and paying sums to or on behalf of the tenant; provided, however, that the Venture will have the right to reasonably approve any such settlement and that CarrAmerica shall reasonably consult and cooperate with the Venture to keep the Venture reasonably apprised of the progress thereof, provided (i) that the Venture may disapprove any such settlement in its sole discretion if any such settlement amends the lease with Xxxx Stores described on Exhibit C, including, without limitation, all ad valorem taxes and assessments assessed against any amendments thereto, and/or amends the Property, prepaid rents and other expenses and fees payable terms under any Leases which Xxxx Stores exercised its right with respect to the Future Ross Expansion or (ii) has an adverse impact on the Property, prepaid and accrued but unpaid provided further that CarrAmerica may elect to have the Venture agree with Xxxx Stores to terminate Xxxx Stores’ rights to the Future Ross Expansion Space without the consent of the Venture and without the Venture having to pay any sums or incur any obligations or liabilities. The Venture may participate in such proceedings and the Venture shall have no liability or obligations with respect thereto. CarrAmerica hereby agrees to indemnify the Venture and hold the Venture harmless from and against any amounts that become due and payable to Xxxx Stores, or that have to be paid to construct any improvements or otherwise due to or on behalf of Xxxx Stores as a result of the dispute which is the subject of the foregoing mediation proceeding and any costs and expenses incurred in connection with by the operation or maintenance Venture arising out of the Property under any Service Contracts or otherwisesuch dispute, including, without limitation, legal fees and costs in connection with such mediation and/or litigation arising therefrom. CarrAmerica Pleasanton shall not receive any credit to its capital account in the Venture for amounts deposited or paid by CarrAmerica under this subsection (d).
(e) Prior to Closing, CarrAmerica will deposit a total of $3,593,624 into a tenant improvement allowance escrow (the “Tenant Improvement Escrow”) to pay for certain tenant improvement allowances agreed to by CarrAmerica under leases to Safeway (in the amount of $1,453,500), to AT&T Corporation (in the amount of $1,890,124) and to Xxxx Stores (in the amount of $250,000 with respect to its lease dated April 15, 2003). At Closing, the Escrow Holder shall release all utilities servicing funds in the Tenant Improvement Escrow to the Venture, and the Venture shall hold such funds to pay to Safeway, to AT&T Corporation and to Xxxx Stores the tenant improvement allowances as and when such payments are required to be made under each of its respective lease. In the event there are insufficient funds CarrAmerica (and not the Venture) shall be responsible for paying all additional amounts required to be paid under such leases, and in the event such tenants have been fully paid and there remains excess funds in the Tenant Improvement Escrow, such surplus shall be returned by the Venture to CarrAmerica. In addition, CarrAmerica will deposit in escrow an additional amount equal to Two Hundred Fifty Thousand ($250,000), as payment toward the $250,000 in management operating expenses for the Property, and any dues and assessments of home or condominium owners’ associations, which sum shall be prorated between Purchaser released to the Venture at Closing. CarrAmerica Pleasanton shall not receive any credit to its capital account in the Venture for amounts deposited or paid by CarrAmerica under this subsection (e).
(f) RREEF and Seller CarrAmerica shall cooperate to produce prior to the Closing Date a schedule of prorations (including a report of the status of delinquent Rentals) to be made on and after the Closing Date, as complete and accurate as reasonably possible. All prorations that can be liquidated accurately or reasonably estimated as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations Date shall be made in relation to rents not collected as of on the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect Date through the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt. All other prorations, and such collections, if anyadjustments to initial estimated prorations, shall be accounted for between Purchaser made by the parties with due diligence and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) cooperation within 90 days after following the Closing Date, or such other date later time as may be agreed upon required to obtain necessary information for proration. A net credit in writing favor of CarrAmerica from such prorations shall be satisfied by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party Venture to CarrAmerica in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf 100% of Seller such net credit. A net credit in favor of the Venture from such prorations shall be satisfied by utility companies with respect a payment by CarrAmerica to the PropertyVenture in the amount of 100% of such net credit. To the extent that CarrAmerica Pleasanton and RREEF, as members of the Venture, are contributing sums to the Venture to pay for closing costs or net prorations items hereunder, RREEF shall contribute eighty percent (80%) of such costs and CarrAmerica Pleasanton shall contribute twenty percent (20%) of such costs.
Appears in 1 contract
Samples: Formation and Contribution Agreement (Carramerica Realty Operating Partnership Lp)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAs soon as practicable after the Effective Date, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against Taxes attributable to the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance Contributed Assets allocated to Assignor pursuant to Section 15(c) of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, Master Lease shall be prorated between Purchaser and Seller apportioned to the Effective Date. Such apportionments shall be made pro rata on a per diem basis as of the Closing Date, Seller being charged Effective Date so that all such Taxes attributable to the period prior to the Effective Date are for the account of Assignor; and credited for all of same up such Taxes attributable to such date and Purchaser being charged and credited for all of same the period on and after the Effective Date are for the account of Assignee. Taxes shall initially be determined based on the previous year's taxes and shall later be adjusted to reflect the current year's Taxes when the tax bills are finally rendered. The parties shall fully cooperate to avoid, to the extent legally possible, the payment of duplicate Taxes, and each Party shall furnish, at the request of the other, proof of payment of any Taxes or other documentation which is a prerequisite to avoiding payment of a duplicate tax. In the event that either Party (the "Payor") pays a Tax for which the other Party (the "Payee") is obligated in whole or in part under this Section 3.2, the Payor shall present to the Payee evidence of payment and a statement setting forth the Payee's proportionate share of such dateTax, and the Payee shall promptly pay such share to the Payor. If In the event either Party (the "Recipient") receives payments of a Tax to which the other Party (the "Beneficiary") is entitled in whole or in part under this Agreement, the Recipient shall promptly pay such share to the Beneficiary. In the event there exists as of the Effective Date any pending appeals of ad valorem tax assessments for with regard to any Contributed Assets, the continued prosecution and/or settlement of such proratable items appeals shall be subject to the direction and control of Assignee with respect to assessments for the year of Closing have not yet been made, then any such prorations shall be based upon within which the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)Assignment occurs.
(b) On Notwithstanding any provision to the first business day immediately contrary in this Assignment, the following items shall be also apportioned between Assignor and Assignee as of the Effective Date: (a) rents and revenues under all Collocation Agreements (including the SBC Leaseback); (b) Prepaid Charges; (c) base rent, license fees, revenue sharing payments or other charges due to landlords, lessors or licensors under the Ground Leases to the extent paid or payable by Assignor under the Master Lease; (d) all amounts required to be reimbursed to Landlord under Section 11(c) of the Master Lease for the maintenance and repair of lighting systems; and (d) charges and payments under all Site Contracts. Such apportionments shall be made pro rata on a per diem basis as of the Effective Date so that all such rents, revenues, charges and payments attributable to the period prior to the day which is sixty (60) days Effective Date are for the account of Assignor; and all such rents, revenues, charges and payments attributable to the period from and after the Closing Date, or Effective Date are for the account of Assignee with such adjustments to be made as of the Effective Date by the party that on a net basis owes money to the other party under this Section by wire transfer of immediately available funds to such accounts as such other date as may be agreed upon party shall direct in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any eventwriting. In addition, the “Reconciliation Date”), Seller hereby agrees to cause to amount of all Tenant Security Deposits shall be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments credited to the prorations made at Closing account of Assignee or assigned to Assignee as part of the apportionment. The parties shall fully cooperate to avoid, to the extent legally possible, making duplicate payments to ground lessors or other counter-parties under Section 14.(a), above, including, without limitation, (a) any the Ground Leases and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofto other third parties.
(c) Notwithstanding anything else In addition, in connection with any binding Collocation Agreement which has an original term of at least five (5) years and has a remaining term of at least four (4) years from the Closing, pursuant to which Assignor has made, is in the process of making or is otherwise obligated under the terms of the binding Collocation Agreement to make any Alterations (as defined by the Assigned Leases) which Alterations are not removable by the tenant thereunder (collectively, the "Assignor Alterations"), Assignee agrees as follows:
(i) as to Assignor Alterations which have been completed by Assignor prior to Closing, as evidenced by the Completed Alteration Package and provided that the full cost thereof has not otherwise been reimbursed to Assignor by the tenant thereunder or otherwise and only if scheduled on attached SCHEDULE V(A) (the "Completed Assignor Alterations"), on the later of Closing or the date which is thirty (30) days after the receipt of the Completed Alteration Package, Assignee agrees to reimburse Assignor for the cost incurred by Assignor in connection with installing such Completed Assignor Alterations in the amount of the Completed Alteration Reimbursement Amount for each Completed Assignor Alteration. For each Completed Assignor Alteration, the "Completed Alteration Reimbursement Amount" shall be an amount equal to the contrary lesser of (1) the direct third party expenses and capital costs actually incurred by Assignor in this Section 14connection with the making of such Completed Assignor Alteration, if as evidenced by the Property has been assessed Completed Alteration Package, PLUS the Allocated Overhead Reimbursement Amount for property tax purposes at such rates Completed Assignor Alteration LESS any such expenses or costs to the extent reimbursed in respect of such Assignor Alteration by tenants or third parties. or (2) the Budgeted Amount for such Completed Assignor Alteration less any amounts reimbursed in respect of such Assignor Alteration by tenants or third parties. With regard to the foregoing, attached hereto as would result in reassessment SCHEDULE V(A) are the Budgeted Amounts for each Completed Assignor Alterations which provides an estimated Completed Alteration Reimbursement Amount for each Completed Assignor Alteration (i.e., "roll-back" taxes) based upon a change in land usage or ownership as of the Propertydate hereof). The parties acknowledge that the Budgeted Amounts as set forth on the Construction Site Budget is Assignor's good faith estimates, Purchaser hereby agrees as to pay all such taxes each Completed Assignor Alteration, of the direct third party labor and Purchaser capital costs incurred to complete each Completed Assignor Alteration PLUS the Allocated Overhead Reimbursement Amount. Schedule V(a) will be subject to update to include In Process Assignor Alterations which become Completed Assignor Alterations between the date hereof and closing; provided that the Budgeted Amounts with respect thereto shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesremain the same.
(dii) At As to Assignor Alterations which are, at Closing, Seller willin the process of being made by Assignor, at its election and which are not completed as of Closing and PROVIDED THAT the full cost has not otherwise been reimbursed to Assignor by the tenant thereunder or otherwise and Assignee has received the In Process Alteration Package, Assignee will in its sole discretionconnection therewith assume the obligation to complete such Assignor Alteration but only if it is scheduled on attached SCHEDULE V (B) (the "In Process Assignor Alterations"). Assignor agrees to complete, either deliver in a good and workmanlike manner in accordance with the applicable terms of the Collocation Agreement, each In Process Assignor Alteration to the Transition Point. On the later of Closing or credit the date which is thirty (30) days after the receipt of the In Process Alteration Package, Assignee agrees to Purchaser reimburse Assignor for the Completed Alteration Reimbursement Amount, PROVIDED THAT, for purposes of this Section 3.2(c)(ii), the term "Budgeted Amount" as used in the definition of Completed Alteration Reimbursement Amount, shall refer, in the case of each In Process Alteration, only to the portion of the Budgeted Amount for such In Process Assignor Alteration which, in the reasonable good faith judgment of Assignor and Assignee, is fairly attributable to that portion of such In Process Assignor Alteration which has then been completed and evidenced as paid less any and all tenant security deposits then actually held amounts reimbursed in respect of such In Process Assignor Alteration by Seller under Leases covering the Propertytenants or third parties. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller Schedule V(b) will be credited at Closing with subject to update to include Assumed Assignor Alterations which become In Process Assignor Alterations between the amount of any date hereof and all deposits held on behalf of Seller by utility companies closing and to delete In Process Assignor Alterations which become Completed Assignor Alterations between the date hereof and closing; PROVIDED THAT the Budgeted Amounts with respect to thereto shall remain the Propertysame.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingPurchaser and Seller agree that, except as otherwise specifically provided in this Agreement, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwisebudgeted, including, without limitation, all utilities servicing the Propertyordinary, and recurring items normally charged to the Facilities Owners and the Facilities Switchyard Owners, including those listed below (but not including any dues Income Taxes and assessments Transfer Taxes), relating to the business and operation of home or condominium owners’ associationsthe Assets, shall be prorated between Purchaser and Seller charged as of the Closing Date, without any duplication of payment under the Facilities Contracts, with Seller being charged and credited for all of same up liable to the extent such date items relate to any time period prior to the Closing Date, and Purchaser being charged and credited for all of liable to the extent such items relate to periods commencing with the Closing Date (measured in the same on and after such date. If units used to compute the assessments for any such proratable items for item in question, otherwise measured by calendar days):
(i) Property Taxes having a lien date in the same calendar year as the Closing Date;
(ii) Property Taxes having a lien date in the calendar year following the year of the Closing have Date if such lien relates to the Assets; provided, however, if Purchaser is separately assessed Property Taxes relating to the Assets with a lien date in the calendar year following the year of the Closing Date which results in duplicative Property Taxes, such duplicative Property Taxes shall be pro-rated one-half (1/2) to each Party, the Parties agreeing to cooperate with one another to avoid such duplicative Property Taxes;
(iii) Retrospective adjustments and policyholder distributions for the applicable period during which the Closing occurs with respect to Facilities Insurance Policies occurring within twelve (12) months of Closing or ninety (90) days after the year-end following the Closing, whichever occurs first;
(iv) Subject to and without limiting the generality of Section 2.6, the fees assessed on electricity generated at the Facilities pursuant to the Department of Energy Standard Contract, as provided in Section 302 of the Nuclear Waste Policy Act and 10 C.F.R. Part 961, as amended from time to time, for the applicable period during which the Closing occurs;
(v) Subject to and without limiting the generality of Section 2.7, Department of Energy Decommissioning and Decontamination Fees for the applicable period during which the Closing occurs;
(vi) Operating and maintenance expenses incurred in any period prior to the Closing Date (not yet been madeincluding Capital Expenditures) in the nature of the expenses shown on Schedule 3.6(a)(v) but only to the extent that the amount of such expenses are determined within twelve (12) months of Closing or ninety (90) days after the year-end following the Closing, then any such whichever occurs first; and
(vii) A reimbursement for Firm Transmission Rights referred to in Section 2.1(p) adjusted in proportion to the remaining term of the Firm Transmission Rights.
(b) In connection with the prorations referred to in (a) above, in the event that actual figures are not available at the Closing Date, the proration shall be based upon the prior year’s assessmentsrespective amounts accrued through the Closing Date or paid for the most recent year or other appropriate period for which such amounts paid are available. No prorations All prorated amounts shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, recalculated and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior paid to the day which is appropriate Party within sixty (60) days after the Closing Date, or date that the previously unavailable actual figures become available. Seller and Purchaser shall furnish each other with such documents and other date records as may be agreed upon in writing by Seller and Purchaser reasonably requested in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees confirm all proration calculations made pursuant to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes3.6.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pinnacle West Capital Corp)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of On the Closing Date, Seller being charged all utility charges and credited for all other similar periodic obligations (other than Taxes, which shall be allocated as provided in Section 7.03), related to the Owned Real Property transferred at the Closing shall be prorated as of same up to such date and Purchaser being charged and credited for all of same on and after such datethe Closing. If the assessments for any such proratable items for the year of Closing have not yet been madeWhenever possible, then any such prorations shall be based upon on actual, current payments by Seller, and to the prior year’s assessments. No extent such actual amounts are not available, such prorations shall be made in relation to rents not collected estimated as of the Closing Datebased on actual amounts for the most recent comparable billing period. When the actual amounts become known, but such prorations shall be recalculated by Purchaser shall make a commercially reasonable attempt to collect the same for and Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a promptly (but not later than ten (10) Business Days after notice of payment in an due) shall make any additional payment or refund so that the correct prorated amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any is paid by each of Purchaser and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and Seller.
(b) Purchaser and Seller shall cooperate in good faith to resolve any savings resulting from any tax abatements dispute with respect to prorations. In the event Purchaser and Seller are unable to resolve such dispute within fifteen (15) days after the date such dispute arose, Purchaser and Seller jointly shall engage the firm of Deloitte & Touche LLP (the “Accounting Firm”) to resolve such dispute. As promptly as practicable, but in no event more than fifteen (15) days thereafter, Purchaser and Seller shall each prepare and submit a presentation detailing each party’s complete statement of proposed resolution of the dispute to the Accounting Firm. As promptly as practicable, but in no event more than fifteen (15) days thereafter, Purchaser and Seller shall cause the Accounting Firm to choose one of the parties’ positions based solely upon the presentations by Purchaser and Seller. The parties shall share the expenses of the Accounting Firm equally. All determinations made by the Accounting Firm will be final, conclusive and binding on the Property for parties and may be enforced by a court of competent venue and jurisdiction. When the year determination of Closing resulting from a challenge brought by either party hereto and the costs Accounting Firm becomes final, Purchaser or expenses incurred by Seller, as applicable, shall promptly pay (but no later than ten (10) Business Days after such determination is made) the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofdetermined amount to the other party.
(c) Notwithstanding anything else In the event that any amount due to Seller or Purchaser under this Section 1.06 is not paid within the time period set forth for payment above, the payor thereof shall pay interest on such amount due at a rate of twelve percent (12%) per annum, which shall accrue from the due date for such payment to the contrary in this Section 14date of actual payment, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "rollbased on a 360-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesday year.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem General real property taxes and assessments assessed against for the current year relating to the Property, prepaid rents rents, service contracts, sewer use tax, utilities, operating expenses, and all other expenses related to the ownership and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts shall be prorated as of midnight of the day immediately preceding the Closing Date and shall be adjusted in cash at the Closing. No prorations will be made for delinquent rents until actually collected. If at the time of Closing there are past due rents and Seller is entitled to all or otherwisepart of the same, includingSeller agrees that the first rentals received by Purchaser subsequent to the Closing from said delinquent tenant or tenants shall be applied to the payment of rents then due, without limitationand, thereafter, to rents which accrued prior to Closing. Purchaser shall use reasonable commercial efforts to collect all utilities servicing the Propertydelinquent rents, if any, and any dues and assessments of home or condominium owners’ associationssuch rents, if received, after application by Purchaser to rents then due, shall be received by Purchaser for the account of Seller and be promptly remitted by Purchaser to Seller upon receipt, provided that Purchaser shall have no obligation to institute any legal action or otherwise employ an attorney or collection agent with respect to any delinquent rents. All rent applicable to periods prior to the Closing Date collected by Purchaser after Closing will be prorated between Purchaser and Seller as of to the Closing Date, Seller being charged if and credited when received. Any delinquent rents not so collected by Purchaser within a period of ninety (90) days following the Closing shall remain the property of Seller, who may pursue the remedies for all collection thereof (not including termination of same up to such date and Purchaser being charged and credited or any action adversely affecting the particular Lease), for all of same on and after such dateits own account, as it may deem advisable. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date within ten (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (6010) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect prorated item shall prove to have been incorrect, the party in whose favor the error was made shall pay the sum necessary to correct the error to the Propertyother party within ten (10) business days after receipt of proof of such error from the other party, provided that such proof is delivered to the party from whom payment is requested within ten (10) days from Closing Date.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal All revenues and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against expenses relating to the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Purchased Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Seller and Purchaser and Seller as of 11:59 p.m. on the Closing Date (the “Proration Time”), with revenues and expenses first accruing or relating to the period on or prior to the Proration Time being for the account of Seller and revenues and expenses first accruing or relating to the period after the Proration Time being for the account of Purchaser. Prorations credited to Purchaser shall reduce the Purchase Price and prorations credited to Seller shall increase the Purchase Price at Closing as follows:
(i) unpaid city, state, and county ad valorem taxes for the year in which the Closing occurs and for any prior year not yet paid, based on the ad valorem tax bills for the Purchased Property, if then available for such year, or if not, then on the basis of the ad valorem tax bill for the Purchased Property for the immediately preceding year shall be credited to Purchaser; provided, however, if any such taxes for the year in which the Closing occurs have been paid by Seller, Seller shall receive a prorated credit on such amounts. (If such proration is based on an ad valorem tax bill for the immediately preceding year and should such proration prove to be inaccurate on receipt of the ad valorem tax bill for the Purchased Property for the year of Closing, then either Seller or Purchaser, as applicable, may demand at any time after Closing a payment from the other party in an amount sufficient to correct such malapportionment);
(ii) unpaid sanitary sewer taxes and utility charges, if any, for the period on or prior to the Proration Time shall be credited to Purchaser, provided, however, that Purchaser may elect, prior to Closing, to require that the meters for all utility charges be read and terminated as of midnight on the Closing Date, in which case Seller being charged shall be responsible for and credited shall pay for all of same up such charges first accruing or relating to such date and Purchaser being charged and credited for all of same the period on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the or prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser ;
(iii) all payment obligations under the Assumed Contracts and Leases first accruing or related to the period on or prior to the Closing Date shall make a commercially reasonable attempt be credited to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, Purchaser; and
(iv) resident rents and such collectionsother revenues (including Prepaids and Deposits, if any, ) first accruing or related to periods after the Closing Date shall be accounted for between credited to Purchaser. Purchaser and Seller on shall prepare a proposed schedule (the Reconciliation Date “Proration Schedule”) prior to Closing, including the items listed above and any other items the parties determine necessary. Such Proration Schedule shall include all applicable income and expenses with regard to the Purchased Property. Seller and Purchaser will use all reasonable efforts to finalize and agree upon the Proration Schedule at least two (hereinafter defined)2) business days prior to Closing.
(b) On Seller shall receive all income from the first business day immediately Purchased Property attributable to the period prior to the day which is sixty (60) days Proration Time and shall, unless otherwise provided for in this Agreement, be responsible for all expenses of the Purchased Property attributable to the period prior to the Proration Time. In the event Purchaser receives after the Closing Date, Date any payment from a resident specifically identified (including by reference to an invoice number) as for rent due for any period prior to the Proration Time or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or payment of any other assessments for the Property for the year receivable of Closing or for any other reason (in any eventSeller similarly identified, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay shall forward such payment to Seller, as the case may be, . Other payments received from a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on resident after the Closing Date and subsequently collected by Purchaser, and (b) shall be allocated first to any savings resulting current balances due Purchaser from such resident with any tax abatements on excess paid over to Seller for any unpaid receivables from the Property for period prior to the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofProration Time.
(c) Notwithstanding anything else Purchaser shall receive all income from the Purchased Property attributable to the contrary period from and after the Proration Time and shall, except as otherwise provided for in this Section 14Agreement, if the Property has been assessed be responsible for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership all expenses of the Property, Purchaser hereby agrees Purchased Property attributable to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless the period from and against all claims after the Proration Time. In the event Seller or Seller’s affiliates receive any payment from a resident for rent due (or any other payment due Purchaser) for any period from and liability for after the Proration Time, Seller shall forward such taxespayment to Purchaser.
(d) At ClosingIf Closing is at or near the end of a calendar month, Purchaser may request Seller’s reasonable assistance to collect rents from residents for the next calendar month after Closing where rents are paid by autopayment, by automated clearing house (ACH) or similar payment or draws from bank accounts. If Seller does so assist Purchaser with such collections, Seller will, at its election and in its sole discretion, either deliver or credit shall transfer to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of such collections by the fifteenth (15th) of such calendar month following Closing or within five (5) business days of collecting such amounts from the applicable residents, whichever is later. Purchaser shall pay or reimburse Seller for any third party out of pocket expense incurred in connection with providing such assistance.
(e) The parties agree that any amounts that may become due under this Section 3.4 shall be paid at Closing as can best be determined. A post-Closing reconciliation of prorated items as well as a final reconciliation of accrued employee vacation, sick pay and all deposits held on behalf of Seller bonuses included in the Assumed Liabilities shall be made by utility companies with respect the parties within ninety (90) days after Closing and any amounts due at that time shall be promptly forwarded to the Propertyrespective party to whom such amounts are due in a lump sum payment. Any additional amounts which may become due after such determination shall be forwarded at the time they are received. Any amounts due under this Section 3.4 which cannot be determined within ninety (90) days after Closing (such as, for example, fiscal year-end real estate taxes) shall be reconciled as soon thereafter as such amounts can be determined. Purchaser and Seller agree that each shall have the right to audit the records of the other in connection with any such post-Closing reconciliation. Any payments made pursuant to this Section 3.4 shall be treated as a purchase price adjustment for income tax purposes.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sonida Senior Living, Inc.)
Prorations. The provisions No later than five business days after the final determination of this the Working Capital of the Business under Section 14 2.4, Purchasers shall survive reimburse Sellers for all personal and real property Taxes relating to the Acquired Assets that are not included in the Assumed Liabilities, were paid by a Seller before the Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against relate to the Property, prepaid rents and other expenses and fees payable under any Leases on ownership of the Property, prepaid and accrued but unpaid expenses incurred in connection with Acquired Assets or the operation or maintenance of the Property Business after the Closing (except to the extent that any such Taxes are included as an asset in the Final Working Capital Statement and not included as an asset in the working capital amount as of May 31, 2004 that was used in the calculation of the Target Working Capital). Unless otherwise an Assumed Liability and except for any installments payable by any lessor under any Service Contracts or otherwisea Facility Lease, includingeach Seller, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associationsas applicable, shall be prorated between Purchaser and Seller as pay all installments of special assessments with respect to the Real Property that relate to the operation of the Business on or before the Closing Date, Seller being charged and credited for Purchasers shall pay all of same up such installments that relate to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as operation of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days Business after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments . Except to the prorations made at Closing under Section 14.(a)extent included in the Assumed Liabilities, aboveall water, includingsewer, without limitationutility and other similar charges, (a) any and all rents delinquent prepaid rent and unpaid on other similar credits, affecting the Real Property shall be prorated to the Closing Date and subsequently collected (with Closing Date meter readings as appropriate). The foregoing prorations shall be paid by PurchaserPurchasers to Sellers, and (b) any savings resulting from any tax abatements on insofar as feasible, at the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs Closing, or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14extent not feasible, if within 30 days following the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller willby Immediately Available Funds. Any errors or omissions in computing prorations at the Closing, at its election or any re-computations required as a result of facts that become known after the Closing, shall be corrected (and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Propertypaid as specified above) as soon as practicable thereafter.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing All income and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwiseshall be apportioned as of 12:01 a.m. EST on the Closing Date, including, without limitation, with the Operating Partnership being deemed to be the owner of the Property during the 23 entire day on which the Closing Date occurs and being entitled to receive all utilities servicing revenue of the Property, and being obligated to pay all expenses of the Property, with respect to such day. (a) Such prorated items shall include the following: (i) any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of other income with respect to the Property received by the Closing Date, Seller being charged if any, and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have current month not yet been made, then any such prorations delinquent. Such proration shall be based upon on an operating statement updated not less than 1 day prior to the Closing Date; (ii) taxes and assessments (including personal property taxes on the Fixtures and Personal Property) levied against the Property; (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 year’s assessments. No prorations 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 made 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 relation 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 rents 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 collected 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 of 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. In determining prorations relating to 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 the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall extent such amount has not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on been actually paid by the Reconciliation Date (hereinafter defined).
(b) On Contributor. In the first business day immediately event that the Contributor has paid prior to the day which is sixty (60) days Closing any real estate taxes or assessments related to the Property applicable to the period after the Closing Date, or the Contributor shall be entitled to a credit for such other date as may be agreed upon in writing by Seller amount. In connection with the re-proration of real estate taxes and Purchaser in order to have in hand the tax or any other 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 for the year of Closing shall be delivered to or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Sellerretained by, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.24
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
Prorations. The provisions items listed below shall be adjusted between the Seller and Buyer as of this Section 14 shall survive the Closing and not as a result of such adjustment shall be merged therein.added to or subtracted from the Purchase Price and shall be reflected on the Closing Statement delivered at Closing based upon the information provided by Seller and Buyer at the Closing which information the parties agree to provide to the other party:
(a) At ClosingFinal readings for telephone, all normal and customarily proratable itemselectric, includinggas, without limitationsewer, all ad valorem taxes and assessments assessed against the Property, prepaid rents water and other expenses and fees payable under any Leases utilities with respect to the Vessels will be made, if possible, on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser Closing and Seller shall pay all outstanding amounts due as of that date which are allocable to the period prior to the Closing. Buyer shall pay to Seller all amounts allocable to the period after the Closing for any prepaid utility bills. If final readings cannot be obtained as of the Closing DateClosing, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations responsible for having all meters read as soon as possible and a final adjustment on a per diem basis shall be made in relation to rents not collected as of after the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect when the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).next reading is available; and
(b) On Other items customarily adjusted upon the first business day immediately sale of assets in a transaction involving the purchase and sale of assets similar to the Vessels including advance deposits and gift certificates for future excursion services shall be adjusted by the parties. Seller and Buyer shall diligently attempt to determine the exact amounts of prorations and adjustments prior to or at the day which is sixty (60) days after the Closing DateClosing, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any eventhowever, the “Reconciliation Date”), Seller hereby agrees to cause to parties acknowledge that exact amounts may not be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid available on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on agree to re-prorate such items following the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change final bills or statements, except for real estate and personal property taxes which shall not be readjusted except in land usage or ownership the event of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesmanifest error.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The following items, to the extent applicable to periods commencing prior to and ending after the Closing, shall be prorated as of the Closing Date based on the number of days in each such pre-Closing and post-Closing periods:
(a) any rent and percentage rent payable pursuant to Seller Leases (which shall be prorated for rent on the basis of the number of days from the Closing Date to the last day in the month in which Closing occurs over the total number of days in the month in which Closing occurs and for percentage rent on the basis of the amount of sales to date in the current lease month over a pro rata portion of the break point for that month); and (b) all rebates, amounts and funds on account of, accrued by or due under the Soft Drink Agreements and the RSI Dividends. To the extent the amount of any credit pursuant to this Section 2.7 cannot be known as of Closing, such amount shall be calculated as soon as practicable after the information is available to allow calculation, and the party owing such credit hereunder shall promptly pay such credit amount to the other party as set forth in this Section 2.7. The net amounts of such prorations shall be paid: (i) by Seller to Buyer, if Buyer is entitled to a credit therefor, by wire transfer of immediately available funds to an account designated in writing by Buyer or (ii) by Buyer to Seller, if Seller is entitled to a credit therefor, by wire transfer of immediately available funds to an account designated in writing by Seller. Notwithstanding the provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing2.7, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, Taxes shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)accordance with Section 8.4.
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Asset Purchase Agreement (Carrols Restaurant Group, Inc.)
Prorations. Except as may be otherwise expressly provided herein, all revenues, income and expenses (including utility expenses and credit card adjustments) of the Property with respect to the period prior to 12:01 a.m. on the Closing Date (but only including 50% of that 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 Property with respect to the 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 after the Closing Date) shall be for the account of Buyer. Seller shall deliver to Buyer the cash on hand at the Hotel on the Closing Date (except that cash which constitutes Seller’s 50% share of the room revenues). Only real property taxes and assessments and personal property taxes will be prorated inside of Escrow on the settlement statement; all other prorations shall be made outside of Escrow, in accordance with local custom in Los Angles County, California, 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 or after the Closing Date and may include, but not be limited to, 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 the tax year in which Closing occurs, a re-adjustment shall occur, and the 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 the other party upon receipt of the invoice. Such invoice shall be accompanied by reasonable substantiating evidence. The provisions of this Section 14 5.3 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance delivery of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)Deed.
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apple REIT Nine, Inc.)
Prorations. Except as may be otherwise expressly provided herein, all revenues, income and expenses (including utility expenses and credit card adjustments) of the Property with respect to the period prior to 12:01 a.m. on the Closing Date (but only including 50% of that 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 Property with respect to the 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 after the Closing Date) shall be for the account of Buyer. Seller shall deliver to Buyer the cash on hand at the Hotel on the Closing Date (except that cash which constitutes Seller’s 50% share of the room revenues). Only real property taxes and assessments and personal property taxes will be prorated inside of Escrow on the settlement statement; all other prorations shall be made outside of Escrow, in accordance with local custom in Mahwah County, New Jersey, 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 or after the Closing Date and may include, but not be limited to, 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 the tax year in which Closing occurs, a re-adjustment shall occur, and the 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 the other party upon receipt of the invoice. Such invoice shall be accompanied by reasonable substantiating evidence. The provisions of this Section 14 5.3 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance delivery of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)Deed.
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apple REIT Seven, Inc.)
Prorations. The (a) Subject to the other provisions of this Section 14 8.5, the following matters and items shall survive Closing be prorated and not be merged therein.
(a) At Closingapportioned between the parties hereto, all normal and customarily proratable itemsor, includingwhere applicable, without limitationcredited in total to a particular party, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases as of 11:59 pm on the Propertyday before the Closing Date (the “Cut Off Time”), prepaid with net credits, whether in favor of Buyer or Seller, to be settled in cash at the Closing; and accrued but unpaid expenses incurred for purposes of calculating prorations, (i) Seller shall be deemed to be in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing title to the Property, and any dues therefore entitled to the income therefrom and assessments of home or condominium owners’ associationsresponsible for the expenses thereof up to the Cut Off Time, and Buyer to be in title to the Property on and after the Cut Off Time, and (ii) all prorations shall be made on the basis of the actual number of days of the year and month that have elapsed as of the Closing Date.
(b) Rents that have been collected for the month of the Closing will be prorated between Purchaser at the Closing, effective as of the date of the Closing. Not less than five (5) business days prior to Closing, Seller shall furnish to Buyer a schedule of all rents from Tenant which are then due and Seller payable but which have not been collected. With regard to due and payable rents that are uncollected as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall (i) no proration will be made in relation to rents not collected as of at the Closing DateClosing, but Purchaser (ii) Buyer shall make a commercially reasonable attempt effort after the Closing to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings rents in such attemptthe usual course of Buyer’s operation of the Property, and such collections, if any, (iii) Buyer shall be accounted for between Purchaser and Seller on the Reconciliation Date apply all rents collected (hereinafter defined).
(bA) On the first business day immediately prior to the day which is sixty then-current month’s rental obligation due from Tenant, (60B) days then second towards any delinquent amounts relating to the period from and after the Closing Date, and (C) then third towards delinquent rents owed to Seller with respect to the period prior to the Closing Date. It is further agreed, however, that Buyer will not be obligated to institute any lawsuit or such other date as may collection procedures to collect uncollected rents, and Seller shall not be agreed upon in writing entitled to sxx the Tenant to collect same. Notwithstanding any of the foregoing provisions to the contrary, rents collected by Seller and Purchaser in order Buyer after the Closing Date applicable to have in hand the tax or any other assessments for the Property for the year month of Closing or for any other reason (in any event, the “Reconciliation Date”), and to which Seller hereby agrees to cause to is entitled shall be promptly paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) and any and all rents delinquent and unpaid on received by Seller after the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on applicable to the Property for the year month of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regardto which Buyer is entitled, and (ii) any shall be promptly paid to Buyer. There are no common area maintenance expenses, administrative fees, insurance costs and expenses incurred property management fees payable to Seller by Purchaser Tenant under Section 32.(b)(ii) hereofthe Lease. There is no security deposit made or required to be made by Tenant under the Lease.
(c) Notwithstanding anything else There shall be no proration of real estate taxes as Tenant pays real estate taxes directly to the contrary applicable governmental authority and has paid the first installment of 2019 real estate taxes payable in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes2020.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any Buyer shall pay the following costs of closing this transaction:
(1) Any and all tenant security deposits then actually held expense(s) incurred by Seller under Leases covering Buyer or its representative(s) in inspecting or evaluating the Property. , except as otherwise expressly provided in this Agreement;
(2) The cost of any extended coverage or special endorsements to the Title Policy, including any additional premium charge(s) for endorsements and/or deletion(s) of exception items and any cancellation charge(s) imposed by the Title Company in the event a Title Policy is not issued, unless caused by default of Seller will have no responsibility hereunder;
(3) Any and all recording fees for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount Deed;
(4) One-half of any and all deposits held on behalf escrow fees associated with the purchase and sale transaction contemplated herein, and all escrow fees associated with Buyer’s financing, if any; and
(5) The fees and disbursements of Buyer’s counsel.
(e) Seller shall pay the following costs of closing the transaction:
(1) One-half of any and all escrow fees;
(2) Any and all state and county real estate transfer, stamp or documentary taxes;
(3) All title charges and the cost of the Title Policy, excepting the cost of any extended coverage or special endorsements to the Title Policy, including any additional premium charge(s) for endorsements and/or deletion(s) of exception items and any cancellation charge(s) imposed by the Title Company in the event a Title Policy is not issued, unless caused by default of Seller by utility companies with respect hereunder;
(4) Subject to Section 4.1(a), all costs relating to the PropertySurvey;
(5) Except as set forth in Section 8.5(d)(3) above, any and all recording fees; and
(6) The fees and disbursements of Seller’s counsel.
(f) The provisions of this Section 8.5 shall survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (GK Investment Property Holdings II LLC)
Prorations. The provisions of Notwithstanding anything to the contrary contained in this Section 14 Option Agreement, Owner shall survive Closing and not be merged therein.
(a) At pay in full on or before Closing, all normal and customarily proratable itemspersonal property taxes, including, without limitation, all ad valorem general real estate taxes and installments of special assessments assessed against related to the PropertySection 33 Property and the Section 27 Property that become delinquent prior to the year of Closing. All personal property taxes, prepaid rents general real estate taxes, and other expenses and fees payable under special assessments (including any Leases on the Property, prepaid and accrued but unpaid expenses incurred installments of special assessments) in connection with the operation or maintenance respect of the Section 33 Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for that become delinquent in the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations treated as current and shall be made in relation to rents not collected prorated as of the date of the Closing; provided, however, if Bxxxxxx has elected to reserve the Life Estate, then Bxxxxxx shall be responsible for the full amount of personal property taxes, general real estate taxes and special assessments (including any installments of special assessments) levied or assessed against the Life Estate Surface Area, including the Residence and the improvements located thereon that become delinquent in the year of the Closing Dateand that thereafter become delinquent at any time during the term of the Life Estate. All personal property taxes, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attemptgeneral real estate taxes, and such collections, if any, shall be accounted for between Purchaser and Seller on special assessments (including any installments of special assessments) in respect of the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon Section 27 Property that become delinquent in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to shall be paid to Purchaserby Owner and shall not be prorated. Owner shall be responsible for and shall timely pay all personal property taxes, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchasergeneral real estate taxes, and special assessments (bincluding any installments or special assessments) any savings resulting from any tax abatements on that are levied or assessed in respect of the Section 27 Property for in or after the year of Closing resulting from a challenge brought by either party hereto the Closing; provided that Optionee shall be responsible for and shall timely pay all real estate taxes that are levied or assessed in respect of the costs Section 27 Mineral Interests in or expenses incurred by after the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) year of the Closing. Notwithstanding anything else to the contrary contained in this Section 1414(vi), if nothing in this Section 13(vi) shall be construed to supersede any provision in this Option Agreement or the Property has been assessed for property tax purposes at such rates as would result Deed relating to Beverly’s payment of taxes, assessments or other obligations in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership respect of the PropertyLife Estate, Purchaser hereby agrees should she elect to pay all such taxes and Purchaser reserve the same. All utility charges for periods prior to Closing shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held be paid by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect Owner unless related to the Propertyactivities of Optionee in respect of this Option Agreement, all of which shall be paid by Optionee.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not All matters involving prorations, credits or adjustments to be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred made in connection with the operation or maintenance Closing and not specifically provided for in another section of the Property under any Service Contracts or otherwise, including, without limitationthis Agreement shall be adjusted in accordance with this Section 4.2. Except as otherwise set forth herein, all utilities servicing items to be prorated pursuant to this Section 4.2 shall be prorated as of 11:59 P.M. on the day immediately preceding the Closing Date, with Purchaser to be treated as the owner of the Property, for purposes of prorations of income and any dues expenses, on and assessments after the Closing Date. Notwithstanding the foregoing, in the event that the Purchase Price is not disbursed to or as directed by Seller on or before 3:00 p.m. (eastern time) on the Closing Date, then, for purposes of home or condominium owners’ associationsthis Section 4.2, the Closing shall be prorated between deemed to have occurred on the next business day and all adjustments shall be recomputed accordingly. Except as otherwise set forth herein, all prorations shall be done in accordance with the customs with respect to title closings recommended by The Real Estate Board of New York, Inc. All prorations and closing payments shall be made on the basis of a Proration Statement (as hereinafter defined) approved in writing by Purchaser and Seller as hereinafter set forth. If, subsequent to the Closing, Seller or Seller’s managing agent receives any rental checks from any Tenants made payable to Seller which relate to the period subsequent to the Closing, Seller shall endorse such checks to the payment of Purchaser and promptly deliver the same to Purchaser. Not later than five (5) business days prior to the Closing Date, Seller being charged and credited for will deliver to Purchaser a proposed “Proration Statement” which shall contain per diem amounts of all of same up closing amounts to such date and Purchaser being charged and credited for all of same on and after such datebe prorated. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the Not later than three (3) business days prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make deliver to Seller a commercially reasonable attempt written statement of objection or agreement to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date Proration Statement. Not later than two (hereinafter defined).
(b2) On the first business day immediately days prior to the day which is sixty (60) days after the Closing Date, or Purchaser and Seller shall meet for the purpose of agreeing to and finalizing the Proration Statement, each of Purchaser and Seller hereby agree to act reasonably and in good faith in such other date as may discussions and determinations. Any errors in apportionments pursuant to this Section 4.2 shall be agreed upon in writing corrected by appropriate re-adjustment between Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments subsequent to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on when the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs charge or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser error is determined. The following items shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.prorated:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Boston Properties Inc)
Prorations. Except as may be otherwise expressly provided herein, all revenues, income and expenses (including utility expenses and credit card adjustments) of the Property with respect to the period prior to 12:01 a.m. on the Closing Date (but only including 50% of that 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 Property with respect to the 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 after the Closing Date) shall be for the account of Buyer. Seller shall deliver to Buyer the cash on hand at the Hotel on the Closing Date (except that cash which constitutes Seller’s 50% share of the room revenues). Only real property taxes and assessments and personal property taxes will be prorated inside of Escrow on the settlement statement; all other prorations shall be made outside of Escrow, in accordance with local custom in Cranford County, New Jersey, 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 or after the Closing Date and may include, but not be limited to, 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 the tax year in which Closing occurs, a re-adjustment shall occur, and the 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 the other party upon receipt of the invoice. Such invoice shall be accompanied by reasonable substantiating evidence. The provisions of this Section 14 5.3 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance delivery of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)Deed.
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apple REIT Seven, Inc.)
Prorations. (a) Subject to the concurrent proration of amounts due under terms of the Microsoft Lease, real property taxes and assessments; business improvement district charges; vault rent; 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); and any other 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. Excluded from such pro ratable expenses are all financing costs. Seller and Purchaser 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 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 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 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) The provisions of this Section 14 10.5 shall survive Closing and not be merged thereinClosing.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. (a) On the Closing Date, or as promptly as practicable following the Closing Date, but in no event later than ninety (90) calendar days thereafter, the water, gas, electricity and other utilities, local business or other license fees to the extent assigned and other similar periodic charges payable with respect to the Purchased Assets shall be prorated between the Seller, on the one hand, and the Purchaser, on the other hand, effective as of the Effective Time with the Seller being responsible for amounts related to the period prior to but excluding the Closing Date and the Purchaser being responsible for amounts related to the period on and after the Closing Date. The Parties shall use commercially reasonable efforts to cause utility meter readings to be determined as of the Effective Time or as close thereto as reasonably practicable; provided, however, that if a Party’s proration for a particular amount owed under this Section 1.6 cannot be determined due to the unavailability of the necessary information on the appropriate invoice or remittance statement, then the proration shall be calculated on a per day basis using the number of days in the respective Party’s period. If the Purchaser fails to pay any utility bill and payment is demanded from the Seller, and the Seller pays the utility bill, then the Purchaser shall promptly reimburse the Seller for payment of any such utility bill. If the Purchaser fails to effect the transfer to it of utility services within one hundred and twenty (120) days following Closing, the Seller shall then have the option, in the Seller’s discretion, to inform the utility provider to discontinue the utility service, without any liability to the Seller for such discontinuance.
(b) All income, proceeds and receipts attributable to the operation, use, ownership, or otherwise of the Purchased Assets prior to the Effective Time shall be the property of the Seller and to the extent received by the Purchaser or its Affiliates, the Purchaser shall promptly and fully disclose, account for and transmit the same to the Seller. All income, proceeds and receipts attributable to the operation, use, ownership, or otherwise of the Purchased Assets on and after the Effective Time shall be the property of the Purchaser and to the extent received by the Seller or its Affiliates, the Seller shall promptly and fully disclose, account for and transmit the same to the Purchaser.
(c) The provisions of this Section 14 1.6 shall survive Closing and not be merged thereinthe Closing.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingSubject to the Letter Agreement, all normal the items described below with respect to each Property shall be apportioned between Seller and customarily proratable itemsPurchaser and shall be prorated on a per diem basis as of 11:59 p.m. of the day before the Closing Date:
(i) annual rents, other fixed charges (including prepaid rents), unfixed charges and additional rents (including, without limitation, all ad valorem taxes on account of taxes, xxxxxx’x wage, electricity and assessments assessed against percentage rent), in each case paid under the PropertyLeases (it being agreed that any such amounts not paid prior to the Closing Date shall not be apportioned but shall be dealt with in accordance with the provisions of Section 2.6);
(ii) amounts payable under the Contracts to be assigned to Purchaser;
(iii) real estate taxes, prepaid rents vault taxes, water charges and sewer rents, if any, on the basis of the fiscal year for which assessed, to the extent not paid or payable directly to such applicable government authority or utility by any Tenant under its Lease;
(iv) fuel, electric and other expenses utility costs, to the extent not paid or payable directly to such applicable government authority or utility by any Tenant under its Lease;
(v) payments of interest on any Loan Asset actually made for the month in which the Closing occurs as well as payments of accrued and fees unpaid interest and other sums and charges due and payable under any Leases on the PropertyLoan Assets in respect to periods prior to Closing for which the Applicable Party shall receive a credit at Closing. Reserve accounts and prepaid interest for periods subsequent to the Closing actually paid, prepaid and accrued but unpaid expenses incurred if any, in connection with each Loan Asset sold shall be assigned by the operation Applicable Party to Purchaser at Closing without representation, warranty or maintenance recourse;
(vi) assessments, if any, to the extent not paid or payable directly by any Tenant under its Lease, provided, however, that any remaining installments with respect to any assessment or improvement lien for water, sewer or other utilities or public improvements shall be paid by Seller or the Applicable Party if due and payable prior to the Closing and by Purchaser if due and payable subsequent to the Closing;
(vii) dues to owner and marketing organizations;
(viii) amounts payable under reciprocal operating agreements, easements and similar instruments;
(ix) other items customarily apportioned in sales or transfers of real property in the jurisdiction in which the applicable Property is located; and
(x) Rent abatements, free rent and rent concessions, if any, payable under or in respect of any Service Contracts and all Leases entered into at any time prior to the Closing shall be and are hereby expressly assumed by, Purchaser. All leasing brokerage commissions (or otherwiseunpaid installments thereof) due and payable under or in respect of any renewal, includingextension or expansion option provided for in any Lease shall be allocated to, without limitationand are hereby expressly assumed by, Purchaser. After Closing the parties agree to reconcile the amounts of all leasing brokerage commissions, all utilities servicing tenant improvement allowances, all tenant improvement work, all development costs and all capital improvements undertaken with the Property, respect to the Assets after the date hereof and agree to reapportion any dues and assessments of home amounts owed between the parties pursuant to this Section or condominium owners’ associations, shall be prorated between Purchaser and Seller as of pursuant to the Closing DateLetter Agreement. If any amounts are payable hereunder or under the Letter Agreement after Closing, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of agree that the party that owes such amount shall remit the same on and promptly after such datea final determination has been made. If the assessments parties can not agree on a final determination the parties agree that the dispute shall be submitted to an Expedited Arbitration Proceeding.
(xi) Purchaser shall receive a credit at Closing equal to the amount of principal, if any, repaid in reduction of the outstanding principal balance of any Loan Asset between the date hereof and Closing. [LI and RSVP only]
(xii) Purchaser shall receive a credit at Closing equal to the outstanding principal balance of any Existing Debt encumbering the Assets actually purchased by Purchaser or a designee, but not for any such proratable items capitalized interest, default interest, sums and other charges due and owing. Accrued and unpaid interest on the Existing Debt in respect of the month of Closing shall be apportioned and prorated on a per diem basis as required pursuant to clause (a) above. The Applicable Parties shall receive a credit for the amount in any reserves under such Existing Debt and Purchaser shall have all right title and interest to such reserves.
(b) If the Closing Date shall occur before the tax rate or assessment is fixed for the tax year in which the Closing Date occurs, the apportionment of taxes shall be upon the basis of the tax rate or assessment for the next preceding year applied to the latest assessed valuation and Seller and Purchaser shall readjust real estate taxes promptly upon the fixing of the tax rate or assessment for the tax year in which the Closing have Date occurs.
(c) If there is a water or other utility meter(s) on a Property, Seller shall or shall cause the Applicable Party to furnish a reading to a date not yet been mademore than thirty (30) days prior to the Closing Date and the unfixed meter charge and the unfixed sewer rent, then any if any, based thereon for the intervening time shall be apportioned on the basis of such prorations last reading. If Seller or the Applicable Party cannot readily obtain such a current reading, the apportionment shall be based upon the prior year’s assessments. No prorations shall be most recent reading.
(d) At the Closing, if Purchaser elects to take an assignment of any utility deposit made in relation to rents not collected as of by Seller or the Closing DateApplicable Party with any utility company, but then Purchaser shall make a commercially reasonable attempt reimburse Seller for such utility deposit and Seller shall or shall cause the Applicable Party to collect the same for Seller's benefit after Closing, but shall not execute such documents as may be required to initiate legal proceedings assign its rights in such attempt, deposits to Purchaser and provide such collectionsutility companies with notice of such assignment, if any, necessary (in each case in form and substance reasonably satisfactory to Purchaser). Any utility deposits not so assigned to Purchaser shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)refunded to Seller.
(be) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason shall prepare an agreement (in any event, the “Reconciliation DateProration Agreement”), ) setting forth on a Property-by-Property basis in reasonable detail the prorations described in this Section 2.5 and stating the net amount owed to Seller hereby agrees to cause to be paid to or Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment on account thereof. Seller and Purchaser shall execute and deliver the Proration Agreement as provided in an amount Section 2.4.
(f) If any of the items described above cannot be apportioned at the Closing because of the unavailability of the amounts which reflects (i) net adjustments are to be apportioned or otherwise, or are incorrectly apportioned at the prorations made at Closing under Section 14.(a)Closing, aboveor subsequent thereto, includingsuch items shall be apportioned or reapportioned, without limitationas the case may be, (a) any and all rents delinquent and unpaid on as soon as practicable after the Closing Date and subsequently collected by Purchaseror the date such error is discovered, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofas applicable.
(cg) Notwithstanding anything else With respect to Sold Equity Interests, the contrary parties shall make the adjustments in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies 2.5 only with respect to the PropertyApplicable Party’s percentage ownership interest in the applicable subsidiary.
(h) The provisions of this Section 2.5 shall survive the Closing.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing All income and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, Properties shall be prorated between Purchaser and Seller apportioned as of 12:01 a.m. on the Closing Date, Seller with the Operating Partnership being charged deemed to be the owner of the Property Interests during the entire day on which the Closing Date occurs and credited for being entitled to receive all revenue of same up the Properties, and being obligated to pay all expenses of the Properties, with respect to such date day.
(i) Such prorated items shall include the following:
(A) all rents and Purchaser being charged and credited for all of same on and after such date. If any other income with respect to the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of Properties received by the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attemptif any, and such collectionsfor the current month not yet delinquent. Such proration of rents shall be based on a rent roll updated not less than one (1) day prior to the Closing Date;
(B) taxes and assessments (including personal property taxes on the Personal Property) levied against the Properties;
(C) subject to rights under Leases regarding payments or prorations of utility payments by tenants (which will be governed by the rent proration provision described in Section 4.3(a)(i)(A) above), utility charges for which the Contributors are 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 fifteen (15) days prior to the Closing) or, if unmetered, on the basis of a current xxxx for each such utility;
(D) all amounts payable with respect to Assumed Liabilities in effect as of the Closing;
(E) credit shall be accounted given to the Contributors 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; and
(F) any other operating expenses or other items pertaining to the Properties which are customarily prorated between Purchaser a transferor and Seller on transferee of real estate in the Reconciliation Date (hereinafter defined)county in which the Properties are located.
(bii) On Notwithstanding anything contained in this Section 4.3(a), the first business day immediately following shall apply:
(A) The Operating Partnership shall be entitled to a credit against the Contributors’ Total Consideration to be delivered in the form of Partnership Units 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 4.3(a)(i)(E) 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;
(B) Except as provided in the following sentence, all delinquent real estate taxes and assessments shall be paid by the Contributors at or before the Closing, together with any interest, penalties or other fees related to any delinquent taxes. In determining prorations relating to 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 the day which is sixty (60) days Closing Date, to the extent such amount has not been actually paid by the Contributors. In the event that the Contributors have paid prior to the Closing any real estate taxes or assessments related to the Properties applicable to the period after the Closing Date, or the Contributors shall be entitled to a credit for such other date as may be agreed upon in writing by Seller amount. In connection with the re-proration of real estate taxes and Purchaser in order to have in hand the tax or any other assessments for which a credit was given or a proration was made at the Property for Closing, the year of Parties shall adjust the differences between them promptly upon demand being made therefor by either the Contributors or the Operating Partnership. If, after the Closing, any additional real estate taxes or assessments applicable to the period prior to the Closing or Date are levied for any other reason (in any eventreason, including back assessments or escape assessments, then the Contributors shall pay all such additional amounts. If, after the Closing, the “Reconciliation Date”)Contributors or the Operating Partnership receive any property tax refunds regarding any Property relating to a period prior to the Closing, Seller hereby agrees then that portion of the refunds related to cause a period prior to the Closing that is required to be paid refunded to Purchaser, any tenant of the Properties shall be delivered to or Purchaser hereby agrees to pay to Sellerretained 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 Contributors. Subject to Section 1.12, 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;
(C) Charges referred to in Section 4.3(a)(i)(C) which are payable by any tenant directly to a payment in an amount which reflects (i) net adjustments third party shall not be apportioned hereunder, and the Operating Partnership shall accept title subject to any of such charges unpaid and the Operating Partnership shall look solely to the prorations made tenant responsible therefor for the payment of such charges. As to utilities and other operating expenses for which the Contributors are responsible, the Contributors may upon notice to the Operating Partnership elect to pay one or more of all of said items accrued to the date fixed for apportionment pursuant to this Agreement directly to the person or entity entitled thereto, and to the extent the Contributors so elects, such item shall not be apportioned hereunder, and the Contributors’ obligation to pay such item directly in such case shall survive the Closing or any termination of this Agreement;
(D) 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 Contributors with written evidence of the transfer at or prior to Closing. The Contributors shall be entitled to recover any and all deposits held by any utility company as of the Closing Date;
(E) Unpaid rent from a tenant delinquent at Closing under Section 14.(a), above, including, without limitation, collected by the Operating Partnership or the Contributors after the date of Closing shall be delivered as follows: (a) if the Contributors collects any and all rents such unpaid delinquent and unpaid on rent, the Contributors shall, within fifteen (15) days after the receipt thereof, deliver to the Operating Partnership any such rent which the Operating Partnership is entitled to hereunder relating to the date of the Closing Date and subsequently collected by Purchaserany period thereafter, and (b) if the Operating Partnership collects any savings resulting from such unpaid delinquent rent, the Operating Partnership shall, within fifteen (15) days after the receipt thereof, deliver to the Contributors any tax abatements on such rent to which the Property for Contributors are entitled hereunder relating to the year period prior to the date of Closing. The parties agree that (i) all rent received by the Contributors or the Operating Partnership within the first sixty (60) day period after the date of Closing resulting from a challenge brought by either party hereto tenant delinquent at Closing shall be applied first to delinquent rent, if any, in the order of their maturity, and the costs or expenses incurred by the challenging party in that regardthen to current rent, and (ii) any costs all rent received by the Contributors or the Operating Partnership after the first sixty (60) day period after the date of Closing from a tenant delinquent at Closing shall be applied first to current rent and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else then to the contrary in this Section 14delinquent rent, if any, in the inverse order of maturity. The Operating Partnership will use commercially reasonable efforts after Closing to collect all rents in the usual course of the Operating Partnership’s operation of the Property has been assessed for property tax purposes at such rates as would result Interests, but the Operating Partnership will not be obligated to institute any lawsuit or other collection procedures to collect delinquent rents, except in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its Operating Partnership’s sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.;
Appears in 1 contract
Samples: Contribution Agreement (Digital Realty Trust, Inc.)
Prorations. Town and Developer shall apportion as of 11:59 p.m. of the day preceding the Closing (the “Proration Date”), the items for the Option Property hereinafter set forth. Any errors or omissions in computing apportionments at Closing shall be promptly corrected. The provisions of obligations set forth in this Section 14 10 shall survive Closing and not the Closing. The items to be merged therein.adjusted are:
(a) At ClosingCity, all normal state, county, and customarily proratable items, including, without limitation, all school ad valorem taxes and other assessments assessed against for the Property, prepaid rents and other expenses and fees payable under any Leases fiscal year of sale. Should such proration be inaccurate based on the Propertyactual ad valorem tax xxxx, prepaid and accrued but unpaid expenses incurred in connection with if the operation or maintenance same has not been received by the date of Closing, either party may demand after the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Propertydate of Closing, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of entitled to receive upon demand, a payment correcting any mal- apportionment favoring the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)other party.
(b) On If, at Closing, if the Option Property or any part thereof shall have been affected by an assessment or assessments, which are or may become payable in annual installments, of which the first business day immediately installment is then a charge or lien, then for the purposes of this Agreement, all the unpaid installments of any such assessment due and payable in calendar years prior to the day year in which is sixty (60) days the Closing occurs shall be paid by Developer and all installments becoming due and payable after the delivery of the deed shall be assumed and paid by the Town, except, however, that any installments which are due and payable in the calendar year in which the Closing Dateoccurs shall be adjusted pro rata. However, if such an assessment or assessments shall be due in one lump sum payment, then to the extent such other assessment(s) is for improvements in place as of the date as may of this Agreement, then such assessment(s) shall be agreed upon in writing paid by Seller and Purchaser in order to have in hand the tax or any other assessments Developer but if such assessment(s) is for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause improvements to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments made subsequent to the prorations made at Closing under Section 14.(a)date of this Agreement, above, including, without limitation, (a) any and all rents delinquent and unpaid on then the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred same shall be paid by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at Town. All such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser prorations shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller be final at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Option to Enter Purchase Agreement
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal The operation of the Stations and customarily proratable items, including, without limitation, all ad valorem taxes the income and assessments assessed against the Property, prepaid rents and other operating expenses and fees payable under any Leases attributable thereto until 11:59 p.m. on the Property, prepaid date preceding the day of Closing (the "Adjustment Time") shall be for the account of Sellers and accrued but unpaid expenses incurred in connection with thereafter for the operation or maintenance account of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the PropertyBuyer, and any dues income and assessments of home or condominium owners’ associations, expenses shall be prorated between Purchaser Sellers and Buyer as of the Adjustment Time in accordance with generally accepted accounting principles, and the Purchase Price shall be adjusted accordingly.
(b) Such prorations shall include all property Taxes (except transfer Taxes as provided by Section 11.1), music and other license fees, FCC regulatory fees, utility expenses, rent and other liabilities and obligations under Station Contracts and similar prepaid and deferred items and all other expenses and obligations, such as deferred revenue and prepayments attributable to the ownership or holding of the Station Assets and Operation of the Stations that straddle the period before and after the Adjustment Time. Seller shall receive a credit for all of the Stations' deposits, bonds and prepaid expenses to the extent the benefit of the same is transferred to Buyer. Sales commissions related to the sale of advertisements broadcast on the Stations prior to Closing shall be the responsibility of Sellers, and sales commissions related to the sale of advertisements broadcast on the Stations after Closing shall be the responsibility of Buyer. There shall be no proration or adjustment for any imbalance in the value of rights and obligations under trade, barter or similar agreements for the sale of time for goods or services ("Trade Agreements"); provided, however, if the aggregate obligations under the Trade Agreements exceed $25,000 as of the Closing Date, Seller being charged and credited for all then amounts in excess of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations $25,000 shall be based upon the prior year’s assessmentsprorated in accordance with Section 1.8(a). No prorations Prorations and adjustments shall be made at Closing to the extent practicable. Notwithstanding anything in relation this Section 1.8 to rents the contrary, there shall be no proration under this Section 1.8 for, and Seller shall remain solely liable for, any contracts or agreements not collected included in the Station Cxxxxxxxx.Xx the extent any prorations are not made at Closing, within ninety (90) days after the Closing, Buyer shall prepare and deliver to Sellers a proposed pro rata adjustment of income and expenses in the manner described in Section 1.8 and this Section 1.8 for the Station as of the Closing DateAdjustment Time (the "Settlement Statement"), but Purchaser together with a schedule setting forth, in reasonable detail, the components thereof. During such 90-day period, Buyer and its representatives shall make a commercially be provided reasonable attempt access, upon reasonable advance notice and during normal business hours, to collect the same for such books and records of Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collectionsto employees of Seller and its independent auditors, if any, shall be accounted for between Purchaser and Seller on as Buyer may reasonably request in connection with its preparation of the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofSettlement Statement.
(c) Notwithstanding anything else During the 30-day period following the receipt of the Settlement Statement, Buyer shall provide Sellers and its representatives reasonable access, upon reasonable advance notice and during normal business hours, to the contrary in this Section 14such books and records of Buyer, and to employees of Buyer and its independent auditors, if the Property has been assessed for property tax purposes at such rates any, as would result Sellers may reasonably request in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership connection with its review of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxesSettlement Statement.
(d) At ClosingThe Settlement Statement shall become final and binding upon the parties on the 30th day following delivery thereof to Sellers, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing unless Sellers give written notice of their disagreement with the amount Settlement Statement (the "Notice of Disagreement") to Buyer prior to such date. The Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is given to Buyer in the period specified, then the Settlement Statement (as revised in accordance with clause (i) or (ii) below) shall become final and all deposits held binding upon the parties on behalf the earlier of Seller by utility companies (i) the date Buyer and Sellers resolve in writing any differences they have with respect to the Propertymatters specified in the Notice of Disagreement or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm as provided herein.
(e) Within ten (10) Business Days after the Settlement Statement becomes final and binding upon the parties, (i) Buyer shall pay to Sellers the amount, if any, by which the prorated income allocated to Sellers exceeds the prorated expenses allocated to Sellers or (ii) Sellers shall pay to Buyer the amount, if any, by which the prorated expenses allocated to Sellers exceed the prorated income allocated to Sellers. All payments made pursuant to this Section 1.8(e) shall be made by wire transfer in immediately available funds to an account designated by the recipient party.
(f) Notwithstanding any statement in this section to the contrary, if Sellers deliver a Notice of Disagreement, Sellers or Buyer, as applicable, shall make a payment to the other party in immediately available funds of any undisputed amount within 10 Business Days of the receipt of the Notice of Disagreement.
(g) During the 30-day period following the delivery of a Notice of Disagreement to Buyer that complies with the preceding paragraphs, Buyer and Sellers shall seek in good faith to resolve in writing any differences they may have with respect to the matters specified in the Notice of Disagreement. During such period: (i) each of Buyer and Sellers, at their sole cost and expense, shall be permitted to review and make copies reasonably required of: (A) the financial statements of Sellers, in the case of Buyer, and Buyer, in the case of Sellers, relating to the Notice of Disagreement, (B) the working papers of Sellers, in the case of Buyer, and Buyer, in the case of Sellers, and the other Party's auditors, if any, relating to the Notice of Disagreement; and (C) the books and records, including any supporting schedules, analyses and documentation, of the other party relating to the prorations and adjustments subject to the Notice of Disagreement; and (ii) Sellers, in the case of Buyer, and Buyer, in the case of Sellers, shall provide reasonable access, upon reasonable advance notice and during normal business hours, to such employees of the other party as such party reasonably believes is necessary or desirable in connection with its review of the Notice of Disagreement.
(h) If, at the end of such 30-day period, Buyer and Sellers have not resolved their differences, Buyer and Sellers shall submit to the Accounting Firm for review and resolution any and all matters that remain in dispute and that were included in the Notice of Disagreement. Within thirty (30) days after selection of the Accounting Firm, Buyer and Sellers shall submit their respective positions to the Accounting Firm in writing, together with any other materials relied upon in support of their respective positions. Buyer and Sellers shall cooperate with each other and otherwise use commercially reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within thirty (30) days following the submission of such materials to the Accounting Firm. The decision of the Accounting Firm shall be final and binding on each of the parties, and judgment upon the determination of the Accounting Firm may be entered in any court of competent jurisdiction. The fees and expenses of the Accounting Firm shall be divided equally between Sellers and Buyer. The fees and expenses (if any) of Buyer's independent auditors and attorneys incurred in connection with the review of the Notice of Disagreement shall be borne by Buyer, and the fees and expenses (if any) of Sellers' independent auditors and attorneys incurred in connection with their review of the Settlement Statement shall be borne by Sellers.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingSubject to Buyer's obligations therefor pursuant to the Lease, all normal and customarily proratable items, including, without limitation, all ad valorem real property taxes and assessments assessed against assessments, personal property taxes (if any), rent (whether prepaid or applicable to the Propertycurrent rental period), prepaid rents utilities and all other expenses items of income and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection expense with the operation or maintenance of respect to the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser Seller and Seller Buyer as of the Closing Date. Seller shall receive a credit in escrow for any refundable deposits and/or bonds held by any utility, governmental agency or service contractor with respect to the Property, but only to the extent that such deposits and/or bonds are assignable and are in fact assigned to Buyer. Buyer shall receive a credit in escrow in an amount equal to (i) the security deposit held by Seller being charged pursuant to Section 36 of the Lease (i.e., $11,648.84), and credited for all (ii) the balance of same up the escrow account established pursuant to such date and Purchaser being charged and credited for all Section 53 of same the Lease (the "Escrowed Funds"), provided that the Escrowed Funds are released to Seller on and after such dateor before the Closing Date. If either Buyer or Seller receives any revenues attributable to the assessments for any period during which it is not the owner of the Property, said party shall promptly forward such proratable items for amounts to the year other party (if such revenues are only partially attributable to the period during which said party is not the owner of Closing have not yet been madethe Property, then any such prorations the amount paid to the other party shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected proration as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter definedas set forth above).
(b) On Buyer and Seller shall cooperate to produce on or before the first business day immediately prior to the day Closing Date a schedule of prorations which is sixty (60) days after as complete and accurate as reasonably possible. All prorations which can be reasonably estimated as of the Closing Date shall be made in escrow on the Closing Date. All other prorations and any adjustments to initial estimated prorations, shall be made by Buyer and Seller within thirty (30) days following the Closing Date or such other date later time as may be agreed upon required, in writing by Seller the exercise of due diligence, to obtain the necessary information for proration. Any net credit due one party from the other as a result of such post-closing prorations and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to adjustments shall be paid to Purchaser, or Purchaser hereby agrees the other in cash immediately upon the parties' written agreement to pay to Seller, as the case may be, a payment in an amount which reflects (i) net final schedule of post-closing adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofprorations.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Neose Technologies Inc)
Prorations. Except as may be otherwise expressly provided herein, all revenues, income and expenses (including utility expenses and credit card adjustments) of the Properties with respect to the period prior to 12:01 a.m. on the Closing Date (but only including 50% of that 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 Properties with respect to the 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 after the Closing Date) shall be for the account of Buyer. Seller shall deliver to Buyer the cash on hand at the Hotels on the Closing Date (except that cash which constitutes Seller’s 50% share of the room revenues). Only real property taxes and assessments and personal property taxes will be prorated inside of Escrow on the settlement statement; all other prorations shall be made outside of Escrow, in accordance with local custom in Los Angeles County, California, 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 or after the Closing Date and may include, but not be limited to, 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 the tax year in which Closing occurs, a re-adjustment shall occur, and the 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 the other party upon receipt of the invoice. Such invoice shall be accompanied by reasonable substantiating evidence. The provisions of this Section 14 5.3 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance delivery of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined)Deed.
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apple REIT Nine, Inc.)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal Seller and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other Purchaser acknowledge that certain expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with related to the operation or maintenance of the Property under any Service Contracts or otherwiseTransferred Assets are prepaid by Seller. Accordingly, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, following items shall be prorated apportioned between Purchaser Seller and Purchaser, with Seller as being responsible for all such expenses which are attributable to periods on or prior to the Closing Date or to goods or services provided to Seller or any of its Affiliates on or prior to the Closing Date, and Purchaser reimbursing Seller being charged and credited for all such expenses prepaid by Seller which are incurred in the ordinary course of same up business consistent with past practices and attributable to such date and periods after the Closing Date or to goods or services to be provided to Purchaser being charged and credited for all or any of same on and its Affiliates after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date: (i) prepaid rent and any other amounts prepaid under the Princeton Lease, but the Transferred Contracts or the Shared Contracts that are assigned to and assumed by Purchaser shall make in accordance with Section 2.03(d); (ii) gas, electricity and other utility charges and services charges with respect to the Transferred Assets; and (iii) any other operating expenses or other items pertaining to the Transferred Assets that are customarily prorated between a commercially reasonable attempt to collect purchaser and a seller in the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings area in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on which the Reconciliation Date (hereinafter defined)Princeton Facility is located.
(b) On Notwithstanding anything contained in Section 3.03(a):
(i) The applicable Divesting Entities shall receive the first business day entire advantage of any discounts for the prepayment by it of any Taxes, water rates or sewer rents.
(ii) As to gas, electricity and other utility charges referred to in Section 3.03(a)(ii), the applicable Divesting Entities may elect to pay one or more of all of such items accrued to the Closing Date directly to the Person entitled thereto, and to the extent that such Divesting Entity so elects, such item shall not be apportioned at the Closing, and the Divesting Entities’ obligation to pay such item directly in such case shall survive the Closing.
(iii) Purchaser agrees to purchase at the Closing (at the cost paid by the applicable Divesting Entity) and pay for following the Closing, any heating oil, propane or other fuel located at the Princeton Facility at the Effective Time, the amount of such heating oil, propane or other fuel and the cost thereof to be determined as of the date immediately prior to the day which is sixty Closing Date by a certificate of an agent or employee of the applicable Divesting Entity.
(60c) days after Following the Closing, Seller shall deliver to Purchaser an account (“Post-Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation DateAccount Statement”), Seller hereby agrees to cause to be paid to Purchaserin reasonable detail, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects of (i) net adjustments to promptly, and in any event no later than five (5) Business Days following the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on end of the month in which the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regardtook place, and (ii) thereafter, promptly after the receipt of such invoice or calculation of such expense:
(x) any costs expenses related to the operation of the Transferred Assets that were prepaid by the Divesting Entities in accordance with Section 3.03(a),
(y) any expenses that were invoiced to and paid by the Divesting Entities for Assumed Liabilities post-Closing and
(z) any expenses constituting Assumed Liabilities pursuant to Section 2.04(a)(iv) that are incurred by the Divesting Entities in connection with Transferred Employees who accept their offers of employment with Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to following the contrary Closing in this Section 14accordance with the terms and conditions of their respective offer letters from Purchaser. Purchaser shall, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership after receipt of the PropertyPost-Closing Account Statement, Purchaser hereby agrees promptly and in any event no later than ten (10) Business Days following such receipt, pay to pay all Seller, to Seller’s bank account at a bank in the United States designated by Seller in writing, such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability expenses. If there is any dispute regarding the calculation of such expenses in the Post-Closing Account Statement, the parties shall, in good faith, mutually resolve such dispute in the customary manner for such taxestransactions.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingPersonal property taxes for the Theatre Assets for 2003 shall be prorated, all normal and customarily proratable items, including, without limitation, all ad valorem based on property taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Propertyfor 2002, and any dues allocated among (i) Seller for the period prior to and assessments of home or condominium owners’ associations, shall be prorated between Purchaser including the Closing Date and Seller as of (ii) Buyer for the period after the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On If final readings are not obtained for utility services in connection with the first business day immediately Theatre Leases for which the lessee is liable (such as gas, electric, water, or sewer), the charges therefore shall be prorated and allocated among (i) Seller for the period prior to and including the day which is sixty Closing Date and (60ii) days Buyer for the period after the Closing Date. All rent, or such Taxes, insurance and other date as may costs payable by the lessee in connection with the Theatre Leases shall be agreed upon in writing by Seller prorated and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects allocated among (i) net adjustments Seller for the period prior to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on including the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofBuyer for the period after the Closing Date.
(c) Notwithstanding anything else Any xxxx, invoice or similar statement which is received after the Closing Date but which pertains to any services rendered or goods provided to Seller which is used in or for the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership operation of the Property, Purchaser hereby agrees Theatres shall be prorated and allocated among (i) Seller for the period prior to pay all such taxes and Purchaser shall including the Closing Date and does hereby indemnify and save Seller harmless from and against all claims and liability (ii) Buyer for such taxesthe period after the Closing Date.
(d) At ClosingAny xxxx, Seller will, at its election and invoice or similar statement in its sole discretion, either deliver or credit to Purchaser connection with any and all tenant security deposits then actually held Theatre Assets prepaid by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect prior to the PropertyClosing Date pertaining, in whole or in part, to services rendered or goods provided to Buyer after the Closing Date shall be prorated and allocated among (i) Seller for the period prior to and including the Closing Date and (ii) Buyer for the period after the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (United Artists Theatre Circuit Inc /Md/)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, the following items shall be prorated as of 12:01 a.m. on the date of Closing with all normal items of income and customarily proratable expense for the Property being borne by Purchaser from and after (and including) the date of Closing: Tenant Receivables (defined below), and, to the extent not passed through to the Tenants under the Leases, other items, including, without limitation, all income and rents that have been collected by Seller as of Closing; fees and assessments; prepaid expenses and obligations under Service Contracts; accrued operating expenses; real and personal ad valorem taxes; and any assessments by private covenant for the then-current calendar year of Closing. Specifically, the following shall apply to such prorations and to post-Closing collections of Tenant Receivables: Rents due from the Tenants under the Leases and operating expenses and/or taxes payable by the Tenants under the Leases (collectively, “Tenant Receivables”) and assessments assessed against not collected by Seller as of Closing shall not be prorated between Seller and Purchaser at Closing but shall be apportioned on the Propertybasis of the period for which the same is payable and if, prepaid rents as and when collected, as follows:
(a) Tenant Receivables and other expenses and fees payable income received from the Tenants under any the Leases on after Closing shall be applied in the Propertyfollowing order of priority: (A) first, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance to payment of the Property under any Service Contracts or otherwisecurrent Tenant Receivables then due for the month in which the Closing Date occurs, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, which amount shall be prorated apportioned between Purchaser and Seller as of the Closing DateDate as set forth in Section 8.1 hereof (with Seller’s portion thereof to be delivered to Seller); (B) second, Seller being charged to Tenant Receivables first coming due after Closing and credited for all applicable to the period of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit time after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, which amount shall be accounted for between Purchaser and Seller on the Reconciliation Date retained by Purchaser; (hereinafter defined).
(bC) On the third, to payment of Tenant Receivables first business day immediately prior coming due after Closing but applicable to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year period of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), abovetime before Closing, including, without limitation, the Tenant Receivables described in Section 8.1(b) below (acollectively, “Unbilled Tenant Receivables”), which amount shall be delivered to Seller; and (D) thereafter, to delinquent Tenant Receivables which were due and payable as of Closing but not collected by Seller as of Closing (collectively, “Uncollected Delinquent Tenant Receivables”), which amount shall be delivered to Seller. Notwithstanding the foregoing, Seller shall have the right to pursue the collection of Uncollected Delinquent Tenant Receivables for a period of one year after Closing without prejudice to Seller’s rights or Purchaser’s obligations hereunder, provided, however, Seller shall have no right to cause any such Tenant to be evicted or to exercise any other “landlord” remedy (as set forth in Tenant’s Lease) against such tenant other than to xxx for collection. Any sums received by Purchaser to which Seller is entitled shall be held in trust for Seller on account of such past due rents payable to Seller, and all rents delinquent Purchaser shall remit to Seller any such sums received by Purchaser to which Seller is entitled within ten business days after receipt thereof less reasonable, actual costs and unpaid on expenses of collection, including reasonable attorneys’ fees, court costs and disbursements, if any. Seller expressly agrees that if Seller receives any amounts after the Closing Date which are attributable, in whole or in part, to any period after the Closing Date, Seller shall remit to Purchaser that portion of the monies so received by Seller to which Purchaser is entitled within ten business days after receipt thereof. With respect to Unbilled Tenant Receivables, Purchaser covenants and subsequently collected by Purchaser, and agrees to (bi) any savings resulting from any tax abatements on xxxx the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, same when billable and (ii) any costs and cooperate with Seller to determine the correct amount of operating expenses incurred by Purchaser under and/or taxes due. The provisions of this Section 32.(b)(ii8.1(a) hereofshall survive the Closing.
(cb) Notwithstanding anything else to Without limiting the contrary in this generality of the requirements of Section 148.1(a)(C) above, if the Property has been assessed for property tax purposes at final reconciliation or determination of operating expenses and/or taxes due under the Lease shows that a net amount is owed by Seller to Purchaser, said amount shall be paid by Seller to Purchaser within ten business days of such rates as would result in reassessment (i.e., "roll-back" taxes) based upon final determination under the Lease. If the final determination of operating expenses and/or taxes due under the Lease shows that a change in land usage or ownership of the Propertynet amount is owed by Purchaser to Seller, Purchaser hereby shall, within ten business days of such final determination, remit said amount to Seller. Purchaser agrees to receive and hold any monies received on account of such past due expenses and/or taxes in trust for Seller and to pay all such taxes and Purchaser same promptly to Seller as aforesaid. The provisions of this Section 8.1(b) shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxessurvive the Closing.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against Except to the Property, prepaid rents and other expenses and fees payable under any Leases on extent otherwise specifically provided for in the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance calculation of Actual Net Working Capital as of the Closing Date in accordance with Section 3.3, (i) all payments under or pursuant to any Purchased Contract, (ii) all items of income and expense with respect to the Leased Real Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing included in the PropertyPurchased Assets, and any dues (iii) all real and assessments of home personal property Taxes related to the Purchased Assets, whether or condominium owners’ associationsnot payable after the Closing Date, shall be prorated between the Sellers, on the one hand, and the Purchaser, on the other hand, on the basis of a 365-day year, or for Purchased Contracts payable on a monthly basis on the basis of a 30-day month, and the number of days elapsed and days remaining in the applicable period through the end of the Closing Date.
(b) With respect to the real and personal property Taxes, such proration shall be based on the most recent assessments of the real property and the personal property located thereon for the Tax period(s) prior to the Closing Date and the then applicable Tax rates.
(c) With respect to any products sold (or services rendered) pursuant to any Purchased Contract, the Sellers and the Purchaser shall use commercially reasonable efforts to arrange for vendors to xxxx the Sellers directly, through and Seller including the Closing Date, and the Purchaser directly after the Closing Date. To the extent that vendors xxxx the Sellers after the Closing Date for any such products or services provided after the Closing Date, the Sellers shall forward such bills to the Purchaser, and Purchaser shall pay such bills when due. To the extent that vendors xxxx the Purchaser after the Closing Date for any such products or services provided by such vendor on or before the Closing Date, the Purchaser shall forward such bills to the Sellers, and the Sellers shall pay such bills when due to the extent such bills are not otherwise included in the calculation of the Actual Net Working Capital as of the Closing Date.
(d) A final determination of all amounts prorated pursuant to this Section 3.5 shall occur at the time the Purchaser prepares and delivers to the Parent the Closing Statement in accordance with Section 3.3(b), Seller being charged and credited for all of same up any payment required by the Sellers or the Purchaser pursuant to such date and Purchaser being charged and credited for all of same on and after such date. If determination (the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations “True-up Payment”) shall be based upon the prior year’s assessments. No prorations shall be made reflected in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collectionsStatement. The True-up Payment, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging relevant party in that regard, and (ii) any costs and expenses incurred by Purchaser under accordance with Section 32.(b)(ii) hereof3.3.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, following items shall be prorated between Purchaser Seller and Seller as of Buyer at the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, by increasing or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Sellerdecreasing, as the case may be, the funds to be delivered by Buyer at the Closing, with all items pertaining to the month of Closing to be prorated based on the actual number of days in the month in which the Closing occurs. Except as otherwise set forth herein, the following items shall be prorated as of 11:59PM on the day preceding the Closing Date, with the Closing Date being an income and expense day for Buyer.
4.4.1 General real estate taxes, not yet due and payable (collectively, the “Taxes”), to the extent not the obligation of Tenants under the Retail Leases, shall be prorated based upon 103% of the most recent assessed value and tax rate with a payment reproration upon issuance of the actual bills for such applicable period. In no event shall Seller be charged with or be responsible for any increase in an amount which reflects the Taxes or assessments on the Property resulting from the sale of the Property or from any improvements made or leases entered into or for any other reason arising after the Closing. To the extent Seller has engaged a third-party to contest the Taxes assessed against the Property for 2016 or subsequent years, Seller, at Seller's cost, will terminate any such contract prior to the Closing. The terms of this Section 4.4.1 will survive the Closing and not merge into the Deed.
4.4.2 Rents, revenues and other income, if any, payable by the Tenants (“Rents”), will be prorated such that: (i) net adjustments Seller will be entitled to retain any collected Rents accruing for the period prior to the prorations Closing Date; and (ii) Buyer will receive a credit for all collectible Rents for the month of Closing from and after the Closing Date. For Rents received after the Closing by either Seller or Buyer for the month in which the Closing Date occurs, the receiving party agrees to promptly remit to the other party its share of such Rents as set forth in the preceding sentence. Prepaid Rents received by Seller as of the Closing Date for any period following the Closing Date shall be credited to Buyer at Closing. In the event any delinquent Rents (Rents due prior to the month in which the Closing Date occurs but has not been made as of the Closing Date) are collected by either Seller or Buyer from a Tenant after Closing, the same will: (i) first, apply any such amounts against the amounts then due Buyer relating to the period accruing after the month in which the Closing occurred; and (ii) last, then remit to Seller the balance owed Seller for any period prior to the month in which the Closing occurred. Seller shall have the right for a period of six (6) months following Closing to pursue any delinquent Rents due it from any Tenant for any period prior to Closing, and Buyer shall reasonably cooperate in such endeavor at Closing under Section 14.(ano third party out-of-pocket costs or expenses to Buyer, provided, however, that Seller shall not seek, and Buyer shall not be required to terminate any Lease (or any Tenant’s right of possession), aboveand Seller shall have no right to evict Tenants or to declare a current default under such Tenants’ respective Leases.
4.4.3 To the extent any retail Tenants are responsible for the payment of any Taxes in connection with the operation of the Property (“Tax Escrows”), all such Tax Escrows held by Seller for the calendar year 2017 Taxes (due and payable in 2018) shall be credited to Buyer at Closing.
4.4.4 To the extent Tenants are responsible for the payment of any common area maintenance expenses, insurance and the like payable in connection with the operation of the Property (“Reimbursable Expenses”), for the 2017 Reimbursable Expenses, Seller will be entitled to retain that portion of Tenants’ payments received by Seller with respect to the Reimbursable Expenses which equate to those amounts then expended by Seller for such 2017 Reimbursable Expenses. The remaining amount of such payments received by Seller from Tenants shall be credited to Buyer at Closing.
4.4.5 The full amount of the Security Deposits set forth in the Leases will be credited to Buyer (subject to application of the same to cure a default as permitted in any such Lease [Seller to provide Buyer with written notice of such default and application] and if such cure takes place after the expiration or Buyer’s earlier waiver of the Inspection Period and confirmation that Escrow Holder has received the Second Deposit, then as is approved by Buyer, in its sole and absolute discretion, in writing). If the Security Deposit is in the form of a letter of credit or other financial instrument, Seller will assign the same to Buyer and deliver the original letter of credit or other financial instrument to Buyer at Closing.
4.4.6 All charges under the Contracts which Buyer elects to assume pursuant to this Agreement shall be prorated, and as to each service provider, operating expenses payable or paid to such service provider in respect to the billing period of such service provider in which the Closing occurs (the "Current Billing Period"), shall be prorated on a per diem basis based upon the number of days in the Current Billing Period prior to the date of the Closing (which shall be allocated to Seller) and the number of days in the Current Billing Period after the Closing Date (which shall be allocated to Buyer), and assuming that all charges are incurred uniformly during the Current Billing Period. If actual bills for the Current Billing Period are unavailable as of the date of the Closing, then such proration shall be made on an estimated basis based upon the most recently issued bills.
4.4.7 Seller hereby agrees to pay in full as of the Closing Date the following amounts with respect to the Leases as of the Effective Date: (i) any rent abatement or other rental concession granted to any Tenant under a Lease for any period which will extend beyond the Closing Date, including, without limitationbut not limited to, the amount of any rebates, rental concessions, gift cards, non-monetary concessions [i.e., televisions bicycles, iPads, etc.], free rent periods, credits or setoffs given to any Tenant under a Lease; (aii) all leasing commissions and brokerage fees owing in connection with the current terms of the Leases; (iii) any tenant improvement allowances due and all rents delinquent payable under the Leases; and unpaid (iv) the cost of completing any tenant improvements (if any) if completion is to occur after Closing.
4.4.8 Seller and Buyer agree that: (i) none of the insurance policies relating to the Property will be assigned to Buyer and Buyer shall be responsible for arranging for its own insurance as of the Closing Date; and (ii) utilities, including telephone, electricity, water and gas, shall be read on the Closing Date and subsequently collected by PurchaserBuyer shall be responsible for all the necessary actions needed to arrange for utilities to be transferred to the name of Buyer on the Closing Date, including the posting of any required deposits (it being understood, however, that Seller shall be entitled to a credit at the Closing for any utility deposits which it or its predecessors have made prior to the Closing Date, to the extent the same are transferred to Buyer, and (b) Seller shall be entitled to recover and retain from the providers of such utilities any savings resulting from any tax abatements on refunds or overpayments to the Property for extent applicable to the year of period prior to the Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regardDate, and any utility deposits for which it does not receive a credit hereunder). Accordingly, there will be no prorations for insurance or utilities (ii) except to the extent provided above for utility deposits). In the event a meter reading is unavailable for any particular utility, such utility shall be prorated in the manner provided in Section 4.4.6. Buyer acknowledges and agrees that, at any time following the Closing, Seller may terminate any and all utility accounts that remain in Seller's name.
4.4.9 Seller shall receive a credit at the Closing for all leasing costs, including tenant improvement costs and expenses incurred allowances and leasing commissions (but excluding attorneys' fees), actually paid by Purchaser under Section 32.(b)(iiSeller prior to Closing in connection with a Lease Event (defined below) hereofentered into after the Effective Date and which is approved or deemed approved by Buyer pursuant to the terms of this Agreement.
(c) Notwithstanding anything else 4.4.10 Seller and Buyer shall prorate any other items of income and expenses necessary to effectuate the contrary intent of the parties that all income and expense items be prorated as provided above in this Section 144.4. Except for the Taxes which are specifically addressed above, if all provisions for pro-rations under this Section 4.4 shall survive for the Property has been assessed for property tax purposes at such rates as would result Survival Period and Buyer and Seller shall work diligently and in reassessment (i.e.good faith to resolve any disagreements pertaining to the true-up. Buyer and Seller shall each indemnify, "roll-back" taxes) based upon a change in land usage or ownership of protect, defend and hold the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller other party harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of Losses in any and all deposits held on behalf of Seller by utility companies with respect way arising to the Propertyextent of and for amounts as to which the indemnifying party receives a credit, or for which the indemnifying party otherwise assumes responsibility, pursuant to this Agreement.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Inland Residential Properties Trust, Inc.)
Prorations. The provisions following shall be prorated as of this Section 14 shall survive the Closing Date and not be merged therein.
adjusted against the Purchase Price due at Closing: (a) At ClosingRents and any other amounts actually collected from tenants and other persons using or occupying the Property as of the Closing Date; (b) personal property taxes, all normal installment payments of special assessment liens, sewer charges, utility charges (utility charges shall be prorated based on the last reading of meters prior to Closing performed at Seller’s request, if possible) and customarily proratable itemsnormally prorated operating expenses actually billed or paid as of the Closing Date; (c) amounts owed by Seller or paid under the Designated Service Contracts as of the Closing Date, including, without limitation, all ad valorem taxes and assessments assessed against any amounts paid by any service provider under the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Designated Service Contracts or otherwiseprior to Closing; provided, however, that Purchaser hereby assumes all payments coming due under the Designated Service Contracts from and after the Closing Date (provided that Purchaser shall receive a credit for the portion of any such payment that relates to the period prior to the Closing Date), including, without limitationbut not limited to, all utilities servicing the Propertystub period until the term of the Designated Service Contracts expire; and (d) leasing commissions, finder’s fees and any dues and assessments of home or condominium owners’ associations, locator fees shall be prorated between paid in full by Seller for each lease executed by Seller prior to the Closing Date; provided, however, that Purchaser hereby assumes all such fees and commissions for each lease executed from and after the Closing Date. Within ninety (90) days after the Closing (the “Reproration Period”), Purchaser and Seller as of the Closing Datewill make a further adjustment for such rents, Seller being charged and credited for all of same up taxes or charges which may have accrued or been incurred prior to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser not billed or paid at that date; such obligations shall make a commercially reasonable attempt to collect survive the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resource Real Estate Opportunity REIT II, Inc.)
Prorations. The provisions of this Section 14 shall survive Closing Seller and not be merged therein.
(a) At Closing, the Purchaser agree that all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts items listed below relating to the Business or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall Assets will be prorated between Purchaser and Seller as of the Closing Date, with the Seller being charged and credited for all of same liable to the extent such items relate to any time period up to and including the Closing Date and the Purchaser or the applicable Purchaser Designee liable to the extent such date items relate to periods subsequent to the Closing Date (it being understood that the proration of Taxes is addressed in Section 6.10 and Purchaser being charged the proration of rebates paid or payable to customers of the Business resulting from purchases of products from the Business is addressed in Section 6.21):
(a) the amount of any fees or charges which in any case are payable periodically by the Seller or any of its Subsidiaries with respect to any of the Transferable Permits;
(b) the amount of sewer rents and credited charges for all water, electricity and other utilities and fuel; and
(c) water board charges (waterschapslasten) and similar costs. For the avoidance of same on and after such date. If doubt, no amounts included within the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations Adjustment Amount shall be based upon included in the prorations made pursuant to this Section 2.7. At least five (5) Business Days prior year’s assessmentsto Closing, the Seller shall deliver to the Purchaser a written statement setting forth the actual amounts (to the extent available at the Closing Date) in respect of the items described above that are to be prorated (the aggregate of such actual amounts being the "Closing Proration Amount"). No prorations shall be made in relation to rents not collected as of On the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after ClosingSeller or the Purchaser, but shall not be required to initiate legal proceedings in such attempt, and such collections, if anyas applicable, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior pay to the day which is sixty (60) days after other party the Closing Proration Amount. To the extent that the actual amounts for any items to be prorated are not available at the Closing Date, the proration of such amounts shall be calculated and appropriate adjustments shall be paid by the Seller or the Purchaser, as applicable, as soon as reasonably practicable after the actual amounts become available. The Seller and the Purchaser shall furnish each other with such documents and other date records as may be agreed upon in writing by Seller and Purchaser reasonably requested in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees confirm all adjustments and proration calculations made pursuant to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes2.7.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Prorations. The provisions of Notwithstanding anything to the contrary contained in this Section 14 shall survive Closing and not be merged therein.
(a) At ClosingAgreement, all normal and customarily proratable itemsrent, includingadditional rent, without limitationreal estate taxes, all ad valorem taxes and assessments assessed against the Property, prepaid rents common area maintenance and other expenses charges, insurance obligations and fees utility charges payable under any the Acquired Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing DateDate for each Acquired Lease. Sellers agree to prorate real estate taxes and assessments based on when such taxes and assessments accrue, Seller being charged notwithstanding when such taxes and credited for all of same up to such date and Purchaser being charged and credited for all of same assessments become a lien on and after such datethe premises leased by an Acquired Leases. If the assessments for any such proratable items All percentage rent based on sales payable under an Acquired Lease for the year fiscal period in which the Closing Date occurs shall be the responsibility of Closing have not yet been madethe Sellers, provided, however, if Buyer opens for business from the applicable Store in the fiscal period in which the percentage rent is calculated, then any such prorations percentage rent based on sales shall be prorated based upon the prior year’s assessments. No prorations shall be ratio that sales made in relation to at such Store for which percentage rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately are calculated prior to the day Closing Date bears to the aggregate sales made for the relevant fiscal period for which is sixty 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 Closing any errors, reconciliations, or omissions in 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 contrary, such apportionments shall be deemed final and not subject to further post-closing adjustments if no such adjustments have been requested within ninety (6090) days after the Closing Date, or such other date time as may be agreed upon in writing by Seller all necessary information is available to make a complete and Purchaser in order to have in hand the tax or any other assessments for the Property for the year accurate determination of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofsuch apportionments.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Asset Purchase Agreement (Children S Books & Toys Inc)
Prorations. The provisions of this All Taxes shall be prorated in accordance with Section 14 shall survive Closing 5(g)(2). Such Taxes, and not be merged therein.
water and sewer charges, utility charges, governmental license fees, vehicle and special mechanical equipment licenses, deposits (a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Propertydeposits on Contracts), advance or prepaid royalties, prepaid expenses and rents paid by any of the Companies to Persons other than Oxy or its Affiliates, and other expenses similar items referred to on Schedule 1(i), in each case paid prior to or after the Closing Date by means of estimated payments or otherwise and fees payable under any Leases on the Property, prepaid applicable to pre-Closing and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associationspost-Closing periods, shall be prorated between Purchaser and Seller as of the Closing Dateand, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have if not yet been madeotherwise reflected in Consolidated Working Capital, then any such prorations shall be based upon added as part of Consolidated Working Capital to the extent paid prior year’s assessmentsto the Closing and related to a period after the Closing and subtracted from Consolidated Working Capital to the extent to be paid after the Closing and related to a period prior to the Closing. No prorations For prorated items of expense which should be paid in advance prior to the Closing, Oxy shall cause the Companies to make such payments before Closing. For prorated items of expense which are paid in arrears on or after the Closing, Nabors shall cause the Companies to pay and discharge, in a timely manner, any amount so prorated. To the extent that a particular prorated item is disputed, such dispute shall be made in relation resolved pursuant to rents not collected as of Section 1(h). Oxy shall use reasonable efforts to arrange to have (i) meters for electricity, telephone, and gas and water read on the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs bills and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else statements rendered to the contrary in this Section 14Companies based on such readings. Each Party shall, if promptly upon receipt, deliver to the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership other Party copies of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and each relevant bill xx statement which may be in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Propertyrecords.
Appears in 1 contract
Prorations. The provisions Except as elsewhere set forth herein, all items of this Section 14 income ---------- and expense arising from the operation of the Stores and ownership of the Purchased Assets on or before the Closing Date shall survive be for the account of Seller and thereafter shall be for the account of Purchaser, with such items being prorated accordingly. Proration of the items described below between Seller and Purchaser, as well as any and all other items as may be typically prorated between the parties, shall be effective as of 12:01 a.m., local time, on the day immediately following the Closing Date and not shall occur as follows with respect to those rights, liabilities and obligations of Seller transferred to and assumed by Purchaser hereunder:
(i) Liability for state and local real estate and personal property taxes and any water and sewer use charges assessed on the Purchased Assets payable with respect to the year 2001 shall be merged thereinprorated as between Seller and Purchaser on the basis of the number of days of the tax year elapsed to and including such date.
(aii) At Closing, all normal and customarily proratable Prepaid items, includingdeposits, without limitationcredits, all ad valorem taxes payables and assessments assessed against accruals such as utilities, other service charges, rental and other payments or advances under any Assumed Contracts (but specifically excluding the Property, prepaid rents and other expenses and fees payable items covered under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, subsection (iii) below) shall be prorated between Seller and Purchaser on the basis of the period of time to which such liabilities, prepaid items and accruals apply.
(iii) All rent received by Seller or Purchaser after Closing with respect to the Xxxx Leases shall be applied first to current rentals and then to delinquent rentals, if any, in the order of their maturity. In the event that there shall be any rents or other charges under any of the Xxxx Leases that, although relating to a period prior to Closing, do not become due and payable until after Closing or are paid prior to Closing but are subject to adjustment after Closing (such as year-end common area expenses), then any rent or charges of such type shall, to the extent applicable to a period prior to or extending through the Closing, be prorated between Seller and Purchaser as of the Closing Date, Date upon collection by either Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between or Purchaser and Seller on paid to the Reconciliation Date (hereinafter defined)party owed pursuant to the last grammatical paragraph of this Section 1.5.
(biv) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may Purchaser shall be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments responsible for the Property for payment of (i) all "Tenant Inducement Costs" (as hereinafter defined) and those leasing commissions, which leasing commissions are described on Schedule 1.5(iv), as potentially modified as set forth below, whether (A) a result of any renewals or expansions of existing Xxxx Leases approved by Purchaser between the year date hereof and the date of Closing or for (B) under any other reason (in any eventnew Xxxx Leases, approved by Purchaser and entered into between the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto date hereof and the costs or expenses incurred by the challenging party in that regarddate of Closing, and (ii) any costs all Tenant Inducement Costs and expenses incurred leasing commissions entered into by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes that become due and Purchaser shall and does hereby indemnify and save Seller harmless payable from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering after the Property. Seller will have no responsibility for security deposits not held by Seller at date of Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.Any Tenant Inducement Costs due and
Appears in 1 contract
Samples: Asset Purchase Agreement (Harrys Farmers Market Inc)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all All normal and customarily proratable items, including, without limitation, all ad valorem taxes rents, operating expenses and assessments assessed against the Propertyleasing commissions, prepaid rents and other expenses and fees payable under fees, and payments relating to any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of agreements affecting the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing which survive the Property, and any dues and assessments of home or condominium owners’ associationsClosing, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same attributable to the period up to such date and Purchaser being charged the Closing Date (and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and amounts paid by Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior attributable to the day which is sixty (60) days period on or after the Closing Date, or such other date as may be agreed upon in writing by Seller ) and Purchaser in order to have in hand the tax being responsible for, and credited or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Sellercharged, as the case may be, a payment in an amount which reflects (i) net adjustments for all of same attributable to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any period on and all rents delinquent and unpaid on after the Closing Date Date. All unapplied Deposits under Tenant Leases, if any, shall be transferred by Seller to Purchaser at the Closing. Any real estate ad valorem or similar taxes for the Property, or any installment of assessments payable in installments which installment is payable in the year of Closing, shall be prorated to the date of Closing, based upon actual days involved. In connection with the proration of real property taxes or install- ments of assessments, such proration shall be based upon the assessed valuation and subsequently collected by Purchasertax rate figures for the year in which the Closing occurs to the extent the same are available; provided, and that in the event that actual figures (b) any savings resulting from any tax abatements on whether for the assessed value of the Property or for the tax rate) for the year of Closing resulting are not available at the Closing Date, the proration shall be made using figures from the preceding year for the figures which are unavailable for the year of Closing. The proration shall be final and unadjustable except as provided in the following paragraph. The provisions of this Section 8.4 shall survive the Closing. If any of the items subject to proration under the foregoing provisions of this Section 8.4 cannot be prorated at the Closing because of the unavailability of the information necessary to compute such proration, or if any errors or omissions in computing prorations at the Closing are discovered subsequent to the Closing, then such item shall be reapportioned and such errors and omissions corrected as soon as practicable after the Closing Date and the proper party reimbursed, which obligation shall survive the Closing for a challenge brought by either period (the "Proration Period") from the Closing Date until one hundred twenty (120) days after the Closing Date. Neither party hereto and shall have the costs right to require a recomputation of a Closing proration or expenses incurred by a correction of an error or omission in a Closing proration unless within the challenging party in that regardProration Period one of the parties hereto (i) has obtained the previously unavailable information or has discovered the error or omission, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else has given notice thereof to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon other party together with a change in land usage or ownership copy of its good faith recomputation of the Property, Purchaser hereby agrees proration and copies of all substantiating information used in such recomputation. The failure of a party to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver obtain any previously unavailable information or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies discover an error or omission with respect to an item subject to proration hereunder and to give notice thereof as provided above within the PropertyProration Period shall be deemed a waiver of its right to cause a recomputation or a correction of an error or omission with respect to such item after the Closing Date.
Appears in 1 contract
Prorations. The provisions following prorations shall be made as of this Section 14 shall survive the date of Closing and not be merged therein.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Propertybasis of a 365 day year:
21.3.1 For Fee Sites, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, real estate taxes shall be prorated between Purchaser and Seller as of the Closing Datebased on the most recent tax statement ,for the Site. If such proration is not made on the basis of the current tax year, Seller being charged and credited or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall make any necessary adjustments after the Closing by cash payment to the party entitled thereto so that Sellers shall have borne all of same up taxes allocable to such date the period prior to the Closing and Purchaser being charged shall bear all taxes allocable to the period after the Closing.
21.3.2 For Leased Sites, rent and credited for all of same on and after such date. If other payments due under the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations Lease shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected prorated as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect in the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings manner as set forth in such attempt, Sections 21.3.1 and such collections, if any, 21.3.4.
21.3.3 Nonreimbursable utilities and operating expenses of the Sites shall be accounted for between Purchaser and Seller prorated as of the Closing on the Reconciliation Date (hereinafter defined)assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs.
(b) On 21.3.4 Personal property taxes shall be prorated as of the first business day immediately Closing based on the most recent tax statements. If such proration is 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 day which is sixty (60) days Closing, the parties shall make any necessary adjustments after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a cash payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and party entitled thereto so that Sellers shall have borne all rents delinquent and unpaid on taxes allocable to the period prior to the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against bear all claims and liability for such taxestaxes allocable to the period after the Closing.
21.3.5 Prepaid expenses (dincluding royalty payments) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect attributable to the PropertyAssets and payments due under the Contracts shall be prorated based on a schedule approved by Purchaser and Sellers.
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all normal All real and customarily proratable items, including, without limitation, all personal property Taxes or similar ad valorem taxes obligations levied with respect to the Purchased Assets for any taxable period that includes the Closing Date and assessments ends after the Closing Date, whether imposed or assessed against before or after the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associationsClosing Date, shall be prorated between Sellers and Purchaser and Seller as of 12:01 a.m. (Eastern time) on the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If any Taxes subject to proration are paid by Purchaser, on the assessments for one hand, and Sellers, on the other hand, the proportionate amount of such Taxes paid (or in the event of a refund of any portion of such Taxes previously paid is received, such refund) shall be paid promptly by (or to) the other after the payment of such Taxes (or promptly following the receipt of any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter definedrefund).
(b) On To the first business day immediately prior extent practicable, the parties hereto shall notify the gas, water, sewage treatment, telephone and electric utility companies that Purchaser shall be responsible for the payment of all obligations of the Business or the Purchased Assets incurred therefor on or after the Closing. Purchaser shall be responsible for the payment of all charges for such services incurred after the Closing. Sellers shall be responsible, as debtors-in-possession, for the payment of all charges for such services incurred from and after September 28, 2003 to (but excluding) the day which is sixty Closing Date. Sellers shall use commercially reasonable efforts to cause the telephone companies to render a bill for telephone service incurred from and after September 28, 2000 xx (60but excluding) days after the Closing Date, or such other date as may and Sellers shall be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments responsible for the Property for the year payment of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofsuch bill.
(cx) Notwithstanding anything else to the contrary in this Section 14Xxcept as otherwise expressly provided herein, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage all installments of special assessments or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver other charges on or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the PropertyPurchased Assets payable by Sellers for any period in which the Closing Date shall occur, including base rent, common area maintenance, royalties, all municipal, utility or authority charges for water, sewer, electric or gas charges, garbage or waste removal, and cost of fuel, shall be apportioned as of 12:01 am (Eastern Time) on the Closing Date, and each party shall pay its proportionate share promptly upon the receipt of any bill, statement or other charge with respect thereto. If such chargex xx rates are assessed either based upon time or for a specified period, such charges or rates shall be prorated as of 12:01 am (Eastern Time) on the Closing Date. If such charges or rates are assessed based upon usage of utility or similar services, such charges shall be prorated based upon meter readings taken on the Closing Date.
Appears in 1 contract
Prorations. The provisions All income and expenses of this Section 14 the Property shall survive be apportioned as of 12:01 a.m. local time at the Property on the Closing Date, with the Operating Partnership being deemed to be the owner of the Property during the entire day on which the Closing Date occurs and not be merged thereinbeing entitled to receive all revenue of the Property, and being obligated to pay all expenses of the Property, with respect to such day.
(a) At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against Such prorated items shall include the Property, prepaid rents and following:
(i) any other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection income with the operation or maintenance of respect to the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of received by the Closing Date, Seller being charged if any, and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have current month not yet been made, then any such prorations delinquent. Such proration shall be based upon the on an operating statement updated not less than 1 day prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect ;
(ii) taxes and assessments (including personal property taxes on the same Fixtures and Personal Property) levied against the Property;
(iii) utility charges for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collectionswhich 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 accounted 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) any other operating expenses or other items pertaining to the Property which are customarily prorated between Purchaser a transferor and Seller on transferee of real estate in the Reconciliation Date (hereinafter defined)county in which the Property is located.
(b) On Notwithstanding anything contained in this Section 6.2.1, the first business day immediately 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. In determining prorations relating to 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 the day which is sixty (60) days 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, or the Contributor shall be entitled to a credit for such other date as may be agreed upon in writing by Seller amount. In connection with the re-proration of real estate taxes and Purchaser in order to have in hand the tax or any other 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 for the year of Closing shall be delivered to or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Sellerretained by, as the case may be, a payment 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 an amount which reflects ownership and reassessment occurring as the result of the Closing pursuant to this Agreement;
(iiii) net adjustments The Operating Partnership shall take all steps necessary to effectuate the transfer of all utilities to the prorations made at Closing under Section 14.(a)name of the Operating Partnership as of Closing, abovewhere necessary, including, without limitation, (a) any and all rents delinquent and unpaid on post deposits with the Closing Date and subsequently collected by Purchaserutility companies, and (b) any savings resulting from any tax abatements on provide the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership Contributor with written evidence of the Property, Purchaser hereby agrees transfer at or prior to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will The Contributor shall be credited at Closing with the amount of 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 behalf account of Seller by utility companies with respect the prorations adjustments to be made upon the Closing shall be reflected through an adjustment to the Propertycash 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 pay said sum to the other party, 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 date of 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 subject to the Contributor’s reasonable approval. Upon the Contributor’s acceptance and approval of any final proration statement submitted by the Operating Partnership, such statement shall be conclusively deemed to be accurate and final.
Appears in 1 contract
Samples: Contribution Agreement (Lodging Fund REIT III, Inc.)
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, all All normal and customarily proratable items, including, without limitation, all ad valorem taxes rents, operating expenses and assessments assessed against the Propertyleasing commissions, prepaid rents and other expenses and fees payable under fees, and payments relating to any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of agreements affecting the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing which survive the Property, and any dues and assessments of home or condominium owners’ associationsClosing, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same attributable to the period up to such date the Closing Date (and credited for any amounts paid by Seller attributable to the period on or after Closing) and Purchaser being charged responsible for, and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Sellercharged, as the case may be, a payment in an amount which reflects (i) net adjustments for all of same attributable to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any period on and all rents delinquent and unpaid on after the Closing Date and subsequently collected Date. All unapplied Deposits under Tenant Leases in the possession of Seller, if any, shall be transferred by Purchaser, and (b) any savings resulting from any tax abatements on Seller to Purchaser at the Closing. Any real estate ad valorem or similar taxes for the Property or any installment of assessments payable in installments which installment is payable in the year of Closing shall be prorated to the date of Closing, based upon actual days involved. In connection with the proration of real property taxes or installments of assessments, in the event that actual figures for the year of Closing resulting are not available at the Closing Date, the proration shall be made using figures from a challenge brought by either party hereto the preceding year. The proration shall be final and unadjustable except as provided in the costs or expenses incurred by following paragraph. In the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to event the contrary in this Section 14, if the Property property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based taxes upon a change the changes in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall hereby indemnifies and does hereby indemnify and save holds Seller harmless from and against any and all claims and liability liabilities for such taxes.
(d) At . The provisions of this Section 8.4 shall survive the Closing. If any of the items subject to proration under the foregoing provision of this Section 8.4 cannot be prorated at the Closing because of the unavailability of the information necessary to compute such proration, or if any errors or omissions in computing prorations at the Closing are discovered subsequent to the Closing, Seller willthen such item shall be reapportioned and such errors and omissions corrected as soon as practicable after the Closing Date and the proper party reimbursed, at which obligation shall survive the Closing for a period of one hundred twenty (120) days after the Closing Date as hereinafter provided. Neither party hereto shall have the right to require a recomputation of a Closing proration or a correction of an error or omission in a Closing proration unless within the aforestated one hundred twenty (120) day period one of the parties hereto (i) has obtained the previously unavailable information or has discovered the error or omission, and (ii) has given notice thereof to the other party together with a copy of its election good faith recomputation of the proration and copies of all substantiating information used in its sole discretion, either deliver such recomputation. The failure of a party to obtain any previously unavailable information or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies discover an error or omission with respect to an item subject to proration hereunder and to give notice thereof as provided above within one hundred twenty (120) days after the PropertyClosing Date shall be deemed a waiver of its right to cause a recomputation or a correction of an error or omission with respect to such item after the Closing Date.
Appears in 1 contract
Samples: Contract of Sale (Investors First Staged Equity L P)
Prorations. The provisions (a) Except as otherwise hereinafter provided, at and as of Closing, Purchaser and Seller shall prorate in cash (i) real property taxes and assessments for the Club on the basis of the current fiscal year if and to the extent that Seller shall be liable for real property taxes and assessments under the Real Property Leases, (ii) rents under the Real Property Leases, (iii) rents under the Personal Property Leases, (iv) utility and sewer charges, (v) payments under the Assumed Contracts, (vi) operating expenses (including, without limitation, any relating to the summer camp and tennis tournament operations of Seller), (vii) payments relating to Town Center and (viii) other items customarily prorated in transactions of this Section 14 sort. Seller shall survive maintain in place all deposits under the Real Property Leases and all utilities and other deposits for the benefit of the Purchaser. Seller shall deliver to Purchaser at Closing any deposits under any Subleases that are to be Assumed Contracts. Purchaser shall not reimburse Seller, including without limitation by way of a credit to Seller, for any such deposits under any Subleases that are to be Assumed Contracts so delivered by Seller to Purchaser. Purchaser shall reimburse Seller for all other such deposits, including without limitation by way of a credit to Seller, with an offsetting debit to Purchaser, in the calculation of the closing prorations. Purchaser shall not, however, be required to pay, or otherwise to bear the cost of, its share of any item to be prorated under both this Agreement and the Real Property Purchase Agreement more than once, i.e., Purchaser shall only be required to pay, or otherwise to bear the cost, of its share of any such item under one of the two agreements but not be merged thereinunder both agreements.
(ab) No pro ration shall be made for insurance premiums on insurance policies of Seller (none of which Purchaser elects to accept and none of which Seller elects to assign), for management fees or for employee salaries, vacations, benefits, bonuses, payroll taxes or other employee costs. Seller shall terminate, or cause to be terminated, as of Closing all employees and independent contractors working at the Club and shall pay, or cause to be paid, all employee salaries, vacations, benefits, bonuses, payroll taxes and other employee and independent contractor costs as of and including the Closing Date. Subject to the willingness of such employees and independent contractors to be interviewed and, if asked by Purchaser, to be rehired, Purchaser shall be permitted to interview and, at its election, rehire, from and after Closing, any or all of such terminated employees and independent contractors and shall provide all such rehired employees (but not any rehired independent contractors) with health care insurance and benefits and worker's compensation insurance generally consistent with that generally provided by Purchaser to its employees.
(c) At Closingand as of the Closing Date, Purchaser and the Seller shall proportionately allocate all normal and customarily proratable itemsprepaid items of income, including, without limitation, all ad valorem taxes and assessments assessed against the Propertymonthly dues, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred dues paid more than one month in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Propertyadvance, and any prepayments relating to the summer camp and tennis tournament operations of Seller. Notwithstanding anything contained herein to the contrary, there shall be no proportionate allocation of initiation fees paid and collected in the Ordinary Course of Business. Membership dues and assessments of home prepayments collected by Purchaser or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as applicable, during the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on first 30 days following the Closing Date and subsequently collected by Purchaser, and shall be applied (bA) first to any savings resulting from any tax abatements on the Property prorated amounts due Seller for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party month in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.which the
Appears in 1 contract
Prorations. The provisions of this Section 14 shall survive Closing and not be merged therein.
(a) At Closing, Buyer and Seller agree that all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwiseitems normally prorated, includingincluding those listed below (but not including Taxes), without limitation, all utilities servicing relating to the Property, and any dues and assessments of home or condominium owners’ associations, Acquired Assets shall be prorated between Purchaser and prorated, with Seller as of liable to the extent such items relate to any time period prior to the Closing Date, Seller being charged and credited Buyer liable to the extent such items relate to periods commencing on the Closing Date (measured in the same units used to compute the item in question, otherwise measured by calendar days):
(i) assessments and other charges (other than Taxes), if any, relating to the ownership, use or business of the Acquired Assets;
(ii) any prepaid expenses or expenditures relating to the Acquired Assets; provided, however, that if a prepaid expense relates to Seller’s entire electric system and not just that part of the electric system located within Indian River Shores, the amount to be prorated shall be 30/185 of the entire amount;
(iii) any purchases of Acquired Assets during the six-month period prior to the Closing Date (A) that will have a remaining useful life of more than five years after the Closing Date, (B) that exceed $25,000 per Acquired Asset, and (C) the acquisition of which has been approved by Buyer, such approval not to be unreasonably withheld, conditioned or delayed;
(iv) rent and all other items (including prepaid services or goods) payable under any of the Assumed Contracts;
(v) sewer rents and charges for all water, telephone, electricity and other utilities for Substation #9; and
(vi) fees or charges (other than Taxes) imposed by any Governmental Authority.
(b) In connection with the prorations referred to in (a) above, in the event that actual figures are not available as of same up to such the date and Purchaser being charged and credited for all of same on and after such date. If immediately preceding the assessments for any such proratable items for Closing Date, the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of actual amounts accrued through the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day date immediately prior to the day Closing Date or paid for the most recent year (or other appropriate period) for which is actual amounts paid are available. Such prorated amounts shall be re-prorated and paid to the appropriate Party within sixty (60) days of the date that the previously unavailable actual figures become available. Prorations measured by calendar days shall be based on the number of days in a year or other appropriate period
(i) before the Closing Date and (ii) on and after the Closing Date. Seller and Buyer 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 3.08.
(c) To the extent that the proration of an item under this Section 3.08 allocates a portion of such item to a period (or portion thereof) ending before the Closing Date, such portion shall constitute an Excluded Liability. To the extent that the proration of an item under this Section 3.08 allocates a portion of such item to a period (or portion thereof) ending on or after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in portion shall constitute an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofAssumed Liability.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
Prorations. The provisions of this Rent, Taxes (other than Transfer Taxes discussed in Section 14 shall survive Closing and not be merged therein.
(a) At Closing6.12), all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under any Leases on the Property, prepaid and accrued but unpaid expenses incurred in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Propertyutilities, and any dues and assessments of home or condominium owners’ associations, prepaid expenses related to the Purchased Assets shall be prorated between Purchaser Seller and Seller Buyer as of the Closing Date, Seller being charged and credited for all . The portion of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items Taxes that are treated as arising during or attributable to the Pre-Closing Tax Period for purposes of this Agreement shall be:
(a) in the case of Taxes (i) based upon, or related to, income, receipts, profits, wages, capital or net worth; (ii) imposed in connection with the sale, transfer or assignment of property; or (iii) required to be withheld, deemed to be equal to the amount which would be payable if the taxable year of Closing have not yet been made, then any for such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of purposes ended on the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).; and
(b) On in the first business day immediately prior case of any other Taxes, including any property Taxes, deemed to be the day amount of such Taxes for the entire period multiplied by a fraction the numerator of which is sixty (60) the number of days after in the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid period ending on the Closing Date and subsequently collected by Purchaserthe denominator of which is the number of days in the entire period, without regard to the date of assessment. All obligations due in respect of periods prior to and including the Closing Date (other than Cure Claims), including any Pre-Closing Tax Period, shall be the obligations of Seller, and all obligations due in respect of periods after the Closing Date to the extent related to the Purchased Assets shall be the obligations of and shall be paid in full or otherwise satisfied by Buyer. Seller shall provide reimbursement for any Tax or other obligation for which it is liable pursuant to this Section 6.13 that is payable or paid by Buyer within twenty (b20) any savings resulting from any tax abatements days after written demand therefore. Rent shall be prorated on the Property for the year basis of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and thirty (ii30) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereofday month.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment (i.e., "roll-back" taxes) based upon a change in land usage or ownership of the Property, Purchaser hereby agrees to pay all such taxes and Purchaser shall and does hereby indemnify and save Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property.
Appears in 1 contract
Samples: Asset Purchase Agreement
Prorations. The provisions third paragraph of this Section 14 shall survive Closing Paragraph 11 of the Agreement is hereby amended and not be merged therein.
(a) restated in its entirety as follows: “At Closing, all normal and customarily proratable items, including, without limitation, all ad valorem taxes and assessments assessed against the Property, prepaid rents and other expenses and fees payable under Buyer shall receive a credit for (i) any Leases on the Property, prepaid outstanding and accrued but unpaid brokerage commissions to the extent payable (but unpaid as of the Closing) by Seller (as landlord), with respect to lease and lease modifications entered into by Seller prior to the Execution Date (“Pre-Execution Brokerage Commissions”), (ii) any outstanding free rent to the extent granted (but unapplied as of the Closing) by Seller (as landlord), pursuant to the express terms of the leases and lease modifications entered into by Seller prior to the Execution Date (“Pre-Execution Free Rent”), and (iii) any tenant improvement costs or tenant improvement allowances that are outstanding and accrued but unpaid as of the Closing pursuant to the express terms of the leases and lease modifications entered into by Seller prior to the Execution Date and which cannot be converted to rent credits pursuant to the terms of the subject leases (“Pre-Execution Non-Convertible TI Obligations”). With respect to tenant improvement costs or tenant improvement allowances that are outstanding and accrued but unpaid as of the Closing pursuant to the express terms of the leases and lease modifications entered into by Seller prior to the Execution Date and which can be converted to rent credits pursuant to the terms of the subject leases (“Pre-Execution Convertible TI Obligations”), the amount of the same (which the parties agree and acknowledge is equal to $2,522,044.48 in the aggregate) shall not be deducted from the Purchase Price but shall be held in Escrow from Seller’s closing proceeds and maintained in a separate interest bearing account (the “Holdback Account”) for disbursement by Buyer to the applicable tenants as required under the applicable leases (as directed by Buyer). Buyer and Seller shall work together in good faith to establish the Holdback Account and the terms thereof; provided that Buyer shall be responsible for all costs and expenses incurred associated with the Holdback Account. Seller shall have no other obligations or liabilities in connection with the operation or maintenance of the Property under any Service Contracts or otherwise, including, without limitation, all utilities servicing the Property, and any dues and assessments of home or condominium owners’ associations, shall be prorated between Purchaser and Seller as of the Closing Date, Seller being charged and credited for all of same up to such date and Purchaser being charged and credited for all of same on and after such date. If the assessments for any such proratable items for the year of Closing have not yet been made, then any such prorations shall be based upon the prior year’s assessments. No prorations shall be made in relation to rents not collected as of the Closing Date, but Purchaser shall make a commercially reasonable attempt to collect the same for Seller's benefit after Closing, but shall not be required to initiate legal proceedings in such attempt, and such collections, if any, shall be accounted for between Purchaser and Seller on the Reconciliation Date (hereinafter defined).
(b) On the first business day immediately prior to the day which is sixty (60) days after the Closing Date, or such other date as may be agreed upon in writing by Seller and Purchaser in order to have in hand the tax or any other assessments for the Property for the year of Closing or for any other reason (in any event, the “Reconciliation Date”), Seller hereby agrees to cause to be paid to Purchaser, or Purchaser hereby agrees to pay to Seller, as the case may be, a payment in an amount which reflects (i) net adjustments to the prorations made at Closing under Section 14.(a), above, including, without limitation, (a) any and all rents delinquent and unpaid on the Closing Date and subsequently collected by Purchaser, and (b) any savings resulting from any tax abatements on the Property for the year of Closing resulting from a challenge brought by either party hereto and the costs or expenses incurred by the challenging party in that regard, and (ii) any costs and expenses incurred by Purchaser under Section 32.(b)(ii) hereof.
(c) Notwithstanding anything else to the contrary in this Section 14, if the Property has been assessed for property tax purposes at such rates as would result in reassessment foregoing (i.e., "rollwith respect to any such Pre-back" taxesExecution Brokerage Commissions, Pre-Execution Free Rent, Pre-Execution Convertible TI Obligations and/or Pre-Execution Non-Convertible TI Obligations) based upon a change in land usage or ownership and Buyer shall assume all obligations of the Property, Purchaser hereby agrees Seller to pay all such taxes amounts as and Purchaser shall when due and does hereby indemnify indemnify, defend, and save hold Seller harmless from and against all claims and liability for such taxes.
(d) At Closing, Seller will, at its election and in its sole discretion, either deliver or credit to Purchaser any and all tenant security deposits then actually held by Seller under Leases covering claims, damages, costs or liabilities associated with same (which indemnity shall survive the Property. Seller will have no responsibility for security deposits not held by Seller at Closing. Further, Seller will be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property).”
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Kilroy Realty Corp)
