Apportionments. The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. of the day preceding the Closing Date (the "ADJUSTMENT DATE"): (a) fixed or base rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Seller; (b) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and charges and vault charges, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessed; (c) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereof; (d) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees; (e) utilities, to the extent required by Section 3.4; (f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing; (g) personal property taxes, if any, on the basis of the fiscal year for which assessed; (h) all other revenues from the operation of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues); (i) New Lease Expenses as provided in Section 10.1.2; and (j) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of Florida.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Witter Dean Realty Income Partnership I Lp)
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. 12:01 a.m. of the day preceding the Closing Date (the "ADJUSTMENT DATE"):
(a) fixed or base rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date:
(i) general real estate, personal property and ad valorem taxes and assessments for the Premises (other than same applicable to the RDA Land, which have been received by amounts shall be the responsibility of Seller;
(b, in its capacity as lessee, under the Triple Net Lease) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and charges and vault charges, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year)years, respectively, for which same have been assessed. If any such taxes or assessments are payable in installments all installments due through the Closing together with the accrued but unpaid portion of any other installments not yet due as of the Closing shall be prorated based on the periods of time covered by such installments as set forth in Section 3(g) below;
(cii) water, sewer and front foot benefit charges, and charges for electricity, gas, telephone and other utilities, license and permit fees, in each case applicable to the Premises;
(iii) value of fuel used in connection with the Premises (to the extent not accounted for pursuant to clause (ii) above), at Seller's cost, including any taxes, on the basis of a reading performed within one (1) day prior to the Closing or as close thereto as reasonably practical by Seller's supplier;
(iv) rent (including base and additional rent) and other charges under the Leases;
(v) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto not terminated at Closing or permitted renewals or replacements thereofthereof permitted by this Agreement;
(dvi) any prepaid itemsitems applicable to the Premises, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(g) personal property taxes, if any, on the basis of the fiscal year for which assessed;
(hvii) all other revenues from income and expenses relating to the operation of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(i) New Lease Expenses as provided in Section 10.1.2Premises; and
(jviii) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property Premises and located in the State vicinity of Floridathe Premises.
(b) If the Closing shall occur before a new real estate tax rate is fixed for the Land, the apportionment of taxes at the Closing shall be upon the basis of the old tax rate for the preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing in accordance with Section 3(f).
(i) Any and all Security Deposits, prepaid rent for periods after Closing and all interest earned thereon shall be a credit to Purchaser at Closing. Seller shall assign to Purchaser, and shall be entitled to credit for, the deposits, if any, made by Seller in connection with the provision of electric, sewer, water, telephone and other utility services to the Premises.
(ii) If on the Closing Date any tenant is in arrears under a Lease in the payment of rent or Additional Rents (hereinafter defined) or has not paid the rent or Additional Rents payable by it and which is attributable to the month in which the Closing occurs (whether or not it is in arrears for such month on the Closing Date), any rents or Additional Rents received by Purchaser or Seller from such tenant after the Closing shall be applied to amounts due and payable by such tenant during the following periods in the following order of priority: (A) first, to rents and Additional Rents attributable to the month in which the Closing occurred, (B) second, to rents and Additional Rents attributable to the month preceding the month in which the Closing occurred and which are due and payable, and (C) third, to rents and Additional Rents attributable to the months following the month in which the Closing occurred; provided, however, if any rental payment specifies that such rental payment is attributable to a particular period, then such rental payment shall be applied to the period so specified. If rents or Additional Rents or any portion thereof received by Seller or Purchaser after the Closing are due and payable to the other party by reason of this allocation, the appropriate sum shall be promptly paid to the other party within ten (10) Business Days after receipt thereof.
(iii) If any tenants are required to pay percentage rent, escalation charges for real estate taxes, parking charges, utility charges, operating expenses and maintenance escalation rents or charges, cost of living increases or other charges of a similar nature pursuant to and in connection with any Lease (collectively, the "ADDITIONAL RENTS"), and any Additional Rents are collected by Purchaser from a tenant after the Closing Date, then such Additional Rents shall be equitably apportioned based on the period for which collected and applied in the same order of priority as is set forth in Section 3(c)(ii) and Purchaser shall promptly pay to Seller out of such sums received from such tenant the amount specified in the preceding clause (ii) and this clause (iii).
(iv) In the event Seller and Purchaser cannot agree upon the amount or method of any apportionments required to be made pursuant to this Section 3(c), then Seller and Purchaser shall make such apportionments to which they agree at the Closing, and within ten (10) Business Days of the Closing Date, Purchaser and Seller shall retain a third party expert reasonably acceptable to both Seller and Purchaser, which third party expert shall conclusively determine the item or items in dispute, and within ten (10) Business Days of such determination the proper party shall be reimbursed in accordance with such determination. Seller and Purchaser shall share equally in the costs and expenses of any such third party expert. The obligations set forth in this Section 3(c)(iv) shall survive the Closing for a period of one hundred eighty (180) days after the Closing Date.
(v) The provisions of this Section 3(c) shall survive the Closing for a period of one (1) year.
(d) For purposes of calculating prorations, Purchaser shall be deemed to be in title to the Premises, and, therefore, entitled to the income therefrom and responsible for the expenses thereof for the entire day upon which the Closing occurs. All such prorations shall be made by the parties at Closing 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 the actual number of days in the month and a three hundred sixty five (365) day year, and shall be subject to adjustment in cash after the Closing outside of escrow as and when complete and accurate information becomes available, if such information is not available at the Closing. Seller and Purchaser agree to cooperate and use their commercially reasonable efforts to make such adjustments no later than sixty (60) days after the Closing (except with respect to property taxes and amounts payable by any tenant, which shall be adjusted within sixty (60) days after the actual amounts are known) . In any event, all items (other than property taxes and amounts payable by any tenant) shall be final and not subject to further adjustment on the date which is six (6) months after the Closing Date, except as specifically provided in this Agreement to the contrary. Without limiting the generality of the foregoing, Seller and Purchaser hereby agree that with respect to any year end reconciliations of reimbursable expenses under the Leases, Seller and Purchaser shall cooperate to complete such reconciliations as soon as possible after the Closing, with Seller responsible for amounts owing to tenants under the Leases, and entitled to Rents (hereinafter defined) payable by tenants under the Leases (as the case may be) , with respect to periods prior to the Closing, and with Purchaser responsible for amounts owing to tenants under the Leases, and entitled to Rents payable by tenants under the Leases (as the case may be), with respect to periods from and after the Closing. Purchaser shall receive a credit at Closing for the prorated amount of all Rent previously paid by tenants and attributable to any period from and after the Closing Date. Seller shall not receive a cash credit for any rent due and owing by tenants and not paid as of the Closing Date but shall be entitled to the rights set forth in Section 3(c)(ii). The provisions of this Section 3(d) shall survive the Closing.
(e) If there is a water meter on the Premises, Seller shall furnish a reading to a date not more than five (5) Business Days prior to the Closing Date, and the unfixed water charges and sewer rent, if any, based thereon for the intervening time shall be apportioned on the basis of such last reading.
(f) If any of the items subject to apportionment under the foregoing provisions of this Section 3 cannot be apportioned at the Closing because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in computing apportionments at the Closing are discovered subsequent to the Closing, 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 period of one hundred eighty (180) days after the Closing Date as hereinafter provided. Neither party hereto shall have the right to require a recomputation of a Closing apportionment or a correction of an error or omission in a Closing apportionment unless within the aforestated 180-day period either Purchaser or Seller (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 good faith recomputation of the apportionment and copies of all substantiating information used in such recomputation. The failure of a party to obtain any previously unavailable information or discover an error or omission with respect to an item subject to apportionment hereunder and to give notice thereof as provided above within one hundred eighty (180) days after the Closing 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. The provisions of Section 3(f) shall survive the Closing.
(g) If, on the Effective Date or the Closing Date, the Premises or any part thereof shall be affected by any assessment or assessments which are or may become payable in installments, then any such assessment shall be prorated between the Seller and the Purchaser and shall be divided between Seller and Purchaser in accordance with the apportionment of taxes pursuant to the provisions of this Agreement, and all the unpaid installments of any such assessment which are to become due and payable on or after the Closing Date and attributable to the period on or after the Closing Date shall be assumed by Purchaser without abatement of the Purchase Price.
(h) Charges for all electricity, steam, telephone, gas and other utility services at the Premises (collectively, "UTILITIES") shall be billed to Seller's account up to the Closing Date and, from and after the Closing Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the parties shall, within ten (10) Business Days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment. Seller shall use reasonable efforts to schedule utility meter readings with five (5) business days of the Closing Date.
(i) To the extent the same are ascertainable on the Closing Date, if the computation of the aforementioned apportionments shows that a net amount is owed by Seller to Purchaser, such amount shall be credited against the Purchase Price payable by Purchaser on the Closing Date. To the extent the same are ascertainable on the Closing Date, if such computation shows that a net amount is owed by Purchaser to Seller, such amount shall be paid to Seller by Purchaser on the Closing Date in accordance with Section 2(d).
Appears in 1 contract
Sources: Sale Purchase Agreement (Readers Digest Association Inc)
Apportionments. The following (a) Except as expressly set forth herein to the contrary in this Section 21, all items of income and expense at the Property shall be apportioned between ▇▇▇▇▇ and Fourmall on a per diem basis in the Seller manner specified in clause (f) below. To the extent that all information, bills and the Purchaser invoices are not available at the Closing as of 11:59 p.m. of the day preceding the Closing Date (the "ADJUSTMENT DATE"):
(a) fixed or base rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents allow for the month in which apportionment of any items of income and expense, ▇▇▇▇▇ and Fourmall agree to reconcile the apportionments within thirty (30) days after Closing occurs and Additional Rents and other amounts paid re-reconcile the apportionments within ninety (90) days after Closing (based upon preliminary financial information provided by tenants applicable ▇▇▇▇▇'▇ independent accountant) or such later time pursuant to periods which expire after the Closing Date, which have been received by Seller;clause (c) below.
(b) real estate taxesThe following items shall be apportioned as of 11:59 PM of the day immediately preceding the Closing Date:
1. Fixed rents, special assessments (but only any installment relating additional rents, percentage rents and all other sums and credits due or payable under the Tenant Leases, as and when collected, subject to the period in which the Adjustment Date occurs), water charges, sewer rents and charges and vault charges, if any, on the basis provisions of the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessed;
(c) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereof;
(d) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
clause (g) personal property taxes, if anyof this Section 21;
2. Real estate taxes on the Premises, on the basis of the fiscal year for which the same are levied, imposed or assessed, subject to the provisions of clause (e) of this Section;
(h) all other revenues from 3. Charges for water, sewer rents, electricity, steam, gas and telephone at the operation Premises, which are not metered or otherwise charged directly to Tenants under the Tenant Leases; provided that if the consumption of any of such utilities is measured by meters, ▇▇▇▇▇ Parties at the Closing shall furnish a current reading of each meter; and further provided that if there is not a meter or if the current ▇▇▇▇ for any of such utilities has not been issued prior to the Closing Date, the charges therefor shall be adjusted at the Closing on the basis of the Property other than Rents charges for the prior period for which bills were issued and Additional Rents shall be further adjusted when the bills for the current period are issued;
4. Fuel at the Premises, if any, at such Owner LLC's cost therefor (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenuesas determined by such Owner LLC's fuel supplier);
(i) New Lease Expenses as provided in Section 10.1.2; and
(j) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of Florida.5. Amounts paid or payable under transferable Operating Agreements;
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. of on the day immediately preceding the Closing Date (the "ADJUSTMENT DATE"):“Apportionment Date”), provided that to the extent any such amount to be apportioned is the obligation of Seller as tenant under the Lease, the apportionment shall occur as of the date Seller ceases to be required to pay the same under the Lease and no payment shall be due in respect thereof on the Closing Date:
(i) real estate taxes, payments in lieu of taxes, sewer rents and taxes, water rates and charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments (collectively, “Property Taxes”) levied or assessed against the Purchaser’s Unit, on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with paragraphs (b) and (c) of Article 11 hereof;
(ii) fuel, if any, supplied to the Purchaser’s Unit, based on a reading Seller will endeavor to have completed within five (5) days prior to Closing or if not so completed, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter dated within five (5) Business Days of the Closing Date from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor), provided that in calculating the apportionment described in this paragraph (a)(ii), no apportionment shall be made with respect to any fuel tank that serves only the Verizon Units. In all other circumstances, the apportionment described in this paragraph (a)(ii) shall be multiplied by a fraction equal to the Purchaser’s Unit Percentage Interest;
(iii) any amounts prepaid or payable under all Contracts which have been entered into by Seller, other than those Contracts which pursuant to Section 10.04 are to be terminated by Seller;
(iv) all other operating expenses with respect to the Purchaser’s Unit;
(v) such other items with respect to the Purchaser’s Unit as are customarily apportioned in accordance with real estate closings of commercial properties in the State and County in which the Property is located; and
(vi) charges for all electricity, steam and other utility services consumed in the Purchaser’s Unit.
(b) All Property Taxes assessed against the Property shall be prorated between Seller and Purchaser on an accrual basis based upon the actual current tax bill and on the basis of their relative Percentage Interests (as defined in the Declaration) in the Property submitted to the Condominium. If the most recent tax bill received by Seller before the Closing Date is not the actual current tax bill, then Seller and Purchaser shall initially prorate the Property Taxes as of the Apportionment Date by applying 100% of the tax rate for the period covered by the most current available tax bill to the latest assessed valuation, and shall reprorate the Property Taxes retroactively when the actual current tax bill is then available. All Property Taxes on the Property accruing before the Closing Date shall be the obligation of Seller. All Property Taxes on the Purchaser’s Unit accruing on and after the Closing Date shall be the obligation of Purchaser, subject to the provisions of the Lease, and all Property Taxes on the Verizon Units accruing on and after the Closing Date shall be the obligation of Seller. Any refunds of Property Taxes made after the Closing shall first be applied to the unreimbursed third-party costs incurred by Seller or Purchaser in obtaining the refund, and the balance, if any, shall be paid to Seller (for the period prior to the Closing Date) and, unless paid by Seller pursuant to the Lease (in which event such refunds shall be allocated to Seller), allocated to Purchaser and Seller based on their Percentage Interests (for the period commencing on and after the Closing Date until their respective Units are separately assessed). If any proceeding to determine the assessed value of the Property or the Property Taxes payable with respect to the Property has been commenced before the date of this Agreement and shall be continuing as of the Closing Date, Seller shall be authorized to continue to prosecute such proceeding and shall be entitled to any abatement proceeds therefrom allocable to any period before the Closing Date, and ▇▇▇▇▇▇▇▇▇ agrees to cooperate as reasonably requested with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(c) Property Taxes for the fiscal year in which the Closing occurs will reflect amounts payable for the Property as a whole and not for each Unit. In light of the foregoing, the amount to be paid by Purchaser as an apportionment hereunder shall be a percentage of the Property Taxes accruing on and after the Closing Date, such percentage to be the Percentage Interest attributable to Purchaser’s Unit, as set forth in the Condominium Documents (the “Purchaser’s Unit Percentage Interest”). Until such time as the City in which the Property is located has commenced assessing each Unit as a separate tax lot, Purchaser and Seller shall pay to the Board monthly a sum equal to one twelfth (1/12) of the estimated Property Taxes assessed upon the Condominium and allocated to the Unit based on its Percentage Interest in order to provide a sum sufficient to pay the total Property Taxes as they fall due. Purchaser and Seller shall pay any additional sums necessary to pay each party’s respective portion of the shortfall between the estimated payments collected and the amount of the actual Property Tax bill, and shall be credited by the Board with the amount of any excess payments. In the event of any conflict between this provision and the terms and provisions of the Condominium Documents and the Lease, with respect to this subject, the terms and provisions of the Condominium Documents and the Lease shall govern.
(d) With respect to amounts apportioned in accordance with clause (iii) or (iv) of paragraph (a) above, Seller and Purchaser acknowledge that such expenses are for more than just the Purchaser’s Unit and, after the Closing, are to be paid not by Purchaser, but by the Board on behalf of the Condominium. Accordingly, in calculating the amount of such apportionment, (i) if such amount has been paid by Seller prior to Closing, such apportionment (and the amount Purchaser has to pay as a result) shall be made and calculated based on a fraction of such amount, such fraction equal to the portion of such cost which would be charged to the Purchaser’s Unit (whether as a common area charge or other assessment) if the Board had paid such fee on behalf of the Condominium after the Closing and (ii) if such amount has not been paid by Seller prior to Closing, such apportionment (and the amount Seller has to pay as a result) shall be made and calculated based only on the amount paid or to be paid by Purchaser as a common area charge or other assessment with respect to the payment of such amounts by the Board on behalf of the Condominium. Seller and Purchaser shall cause the Board to cooperate with Seller and Purchaser in making these calculations.
(e) At the Closing, Seller shall have the right to prepay the fixed or annual base rents rent payable under the Lease ("RENTS"i) which have been prepaid, security deposits referred for the period from the Closing Date to in Section 8(e), Rents for the end of the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after Date occurs, (ii) for the Closing Date, which have been received by Seller;
(b) real estate taxes, special assessments (but only any installment relating to calendar month immediately succeeding the period month in which the Adjustment Closing Date occurs), water charges, sewer rents occurs and charges and vault charges, (iii) for such other period (if any) as Seller may elect in its sole discretion. If Seller exercises such right, on then Purchaser shall receive a credit against the basis Balance in the amount of the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessed;
(c) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereof;
(d) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(e) utilities, to the extent required by Section 3.4;such prepayment.
(f) deposits with telephone All prorations shall be complete and other utility companiesfinal no later than six (6) months after Closing or, and any other persons or entities who supply goods or services in connection with if applicable, the Property if same are assigned to the Purchaser at the Closing;Lease Expiration Date.
(g) personal property taxes, if any, on The provisions of this Article 11 shall survive the basis of the fiscal year for which assessed;
(h) all other revenues from the operation of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(i) New Lease Expenses as provided in Section 10.1.2; and
(j) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of FloridaClosing. ARTICLE 12.
Appears in 1 contract
Sources: Contract of Sale
Apportionments. The (a) In accordance with and during the term of the Master Lease, Seller will continue to receive all rents and other payments under the Existing Leases and will continue to be responsible for all of lessor’s obligations under all such Existing Leases until the Master Lease Termination Date (as hereinafter defined), including for payment of real estate taxes and operating expenses as provided in the Master Lease, and, accordingly, there will be no apportionment of rents and expenses at the time of Closing.
(b) On the Expiration Date (as defined in the Master Lease) or such earlier termination of the Master Lease in accordance with the terms thereof (the “Master Lease Termination Date”), the following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. (provided, however, that in the event that any of the day preceding Existing Leases provide that the Closing Date tenants thereunder are responsible for payment of any of the expenses in full (the "ADJUSTMENT DATE"as opposed to as part of Overage Rents (as hereinafter defined)), such expenses shall not be apportioned as between Seller and Purchaser):
(a) fixed or base rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Seller;
(bi) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and taxes, water rates and charges, vault charges and vault chargestaxes, business improvements district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively referred to as the “Property Taxes”);
(ii) prepaid rents, fixed rents and additional rents payable pursuant to the Existing Leases (including without limitation, operating expense escalation payments, real estate tax escalation payments and percentage rent, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessed;
(ciii) administrative charges and payments under Contracts that are being assigned to the Purchaser on security deposits held pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofExisting Leases;
(div) any prepaid items, including, without limitation, fees for licenses which are transferred license or other permits assigned to the Purchaser at the Closing and annual permit Purchaser;
(v) Permit, license and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(g) personal property taxes, if any, on the basis of the fiscal year for which assessedlevied, if the rights with respect thereto are assigned to Purchaser at the Closing;
(hvi) all other revenues Fuel, if any, at the cost per gallon most recently charged to Seller together with any sales taxes paid in connection therewith based on a reading Seller will endeavor to have completed within five (5) days prior to the Closing Date or, if not so completed, as estimated by Seller’s supplier (a letter from Seller’s fuel supplier shall be conclusive evidence as to the operation quantity of fuel on hand and the Property other than Rents and Additional Rents (includingSeller’s cost therefor, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenuesas the case may be);
(i) New Lease Expenses as provided in Section 10.1.2; and
(jvii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the Borough of Manhattan.
(c) Property Taxes shall be apportioned on the basis of the fiscal periods for which assessed. If the Master Lease Termination Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Master Lease Termination Date occurs, the apportionment of such Property Taxes based thereon shall be made on the basis of the most recent tax bills available. In the event the Property or any part thereof shall be affected by any special or general assessments which are or may become payable in installments, the installment for the tax year in which the Master Lease Termination Date occurs shall be pro rated between sellers the parties. There shall be no re-proration of Property Taxes after the Master Lease Termination Date.
(d) (i) Monthly base or fixed rents (“Base Rents”) under the Existing Leases shall be adjusted and purchasers pro rated on an if, as and when collected basis. If, on the Master Lease Termination Date, there are any past due Base Rents owing by any tenant for any period through the Master Lease Termination Date, Purchaser shall use its commercially reasonable efforts to collect same (which shall not require commencement of real properties of a type similar legal proceedings) after the Master Lease Termination Date. Following the Master Lease Termination Date, Seller may ▇▇▇▇ tenants owing Base Rents for periods prior to the Property Master Lease Termination Date and located may take all steps it deems appropriate, including litigation against the tenant, to collect Base Rents which are due Seller. Base Rents collected by Purchaser or Seller after the Master Lease Termination Date from tenants who owe Base Rents for periods prior to the Master Lease Termination Date, shall be applied first to the month in which the State Master Lease Termination Date occurs, second to amounts due Purchaser for periods following the month in which the Master Lease Termination Date occurred and third to amounts due Seller for periods prior to the month in which the Master Lease Termination Date occurred. The party receiving such amount shall pay, after deducting reasonable costs of Floridacollection, if any, to the other party the portion to which it is entitled, within 15 days of its receipt of same.
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. of (the “Cut-Off Time”) on the day immediately preceding the Closing Date (the "ADJUSTMENT DATE"):“Apportionment Date”) on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year, such that Purchaser shall be treated as the owner of the Property for purposes of prorations of income and expenses, on and after the day of Closing:
(ai) fixed or base rents ("RENTS") which have been prepaid, security deposits referred Subject to in Section 8(e8(d), Rents for prepaid rents, fixed rents and additional rents payable pursuant to Leases (including, without limitation, operating expense escalation payments, real estate tax escalation payments and percentage rent, if any, payable under the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing DateLeases) (collectively, which have been received by Seller“Rents”);
(bii) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and taxes, water rates and charges (to the extent not accounted for pursuant to sub-clause (iii) below), vault charges and vault chargestaxes, if anybusiness improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, “Property Taxes”), on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, respective periods for which same have been assessedeach is assessed or imposed, are to be apportioned in accordance with Section 8(b) below;
(ciii) charges for all utilities and payments other due and unpaid operating expenses shall be paid by Seller (and apportioned if necessary) in accordance with Section 8(c) hereof;
(iv) prepaid fees for licenses and other permits assigned to Purchaser at the Closing (which cover any period after the Closing);
(v) any amounts prepaid or payable by Seller under Contracts that (if any) which are being assigned to be assumed by Purchaser at Closing;
(vi) administrative charges, if any, permitted under the Purchaser Leases or applicable law, on security deposits held pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofLeases;
(dvii) any prepaid itemsSubject to Section 8(e), wage and fringe benefits (including, without limitation, fees for licenses which are transferred vacation pay, sick days, health, welfare, pension and disability benefits) and other compensation payable to all Hotel Employees.
(viii) all other operating expenses with respect to the Purchaser at the Closing and annual permit and inspection fees;
(e) utilities, Premises to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services such matters are customarily apportioned in connection with the Property if same are assigned to the Purchaser at the Closing;real estate closings of hotel properties located in New York, New York.
(gi) personal property taxes, if any, Property Taxes shall be apportioned on the basis of the fiscal year period for which assessed;. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding year to the latest assessed valuation, but promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) Business Days based on such calculation. If as of the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien or has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date.
(hii) all Seller may file and/or prosecute an application for the reduction of the assessed valuation of the Premises or any portion thereof for real estate taxes or a refund of Property Taxes previously paid (a “Tax Certiorari Proceeding”) to the City of New York for any fiscal year. Seller shall have the right to withdraw, settle or otherwise compromise Tax Certiorari Proceedings affecting real estate taxes assessed against the Premises (A) for any fiscal period prior to the fiscal year in which the Closing shall occur without the prior consent of Purchaser, and (B) for the fiscal year in which the Closing shall occur or any fiscal year thereafter, provided Purchaser shall have consented with respect thereto, which consent shall not be unreasonably withheld or delayed. The amount of any tax refunds (net of attorneys’ fees and other revenues costs of obtaining such tax refunds) with respect to any portion of the Premises for the tax year in which the Apportionment Date occurs shall be apportioned between Seller and Purchaser as of the Apportionment Date. If, in lieu of a tax refund, a tax credit is received with respect to any portion of the Premises for the tax year in which the Apportionment Date occurs, then (x) within thirty (30) days after receipt by Seller or Purchaser, as the case may be, of evidence of the actual amount of such tax credit (net of attorneys’ fees and other costs of obtaining such tax credit), the tax credit apportionment shall be readjusted between Seller and Purchaser, and (y) upon realization by Purchaser of a tax savings on account of such credit, Purchaser shall pay to Seller an amount equal to the savings realized (as apportioned). All refunds, credits or other benefits applicable to any fiscal period prior to the fiscal year in which the Closing shall occur shall belong solely to Seller (and Purchaser shall have no interest therein) and, if the same shall be paid to Purchaser or anyone acting on behalf of Purchaser, same shall be paid to Seller within thirty (30) days following receipt thereof and, if not timely paid, with interest thereon from the operation thirtieth (30th) day following such receipt until paid to Seller at a rate equal to ten percent (10%) per annum. All refunds, credits or other benefits applicable to any fiscal period following the fiscal year in which the Closing shall occur shall belong solely to Purchaser (and Seller shall have no interest therein) and, if the same shall be paid to Seller or anyone acting on behalf of Seller, same shall be paid to Purchaser within thirty (30) days following receipt thereof and, if not timely paid, with interest thereon from the thirtieth (30th) day following such receipt until paid to Purchaser at a rate equal to ten percent (10%) per annum. Purchaser agrees to reasonably cooperate with Seller in all such Tax Certiorari Proceedings. To the extent received by either party, sums payable to the other party hereunder shall be held by the receiving party as a trust fund, and remitted to the other party within thirty (30) days of receipt. Purchaser shall assume all liabilities under the property tax certiorari agreements with respect to the Property other than Rents between ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and Additional Rents (Seller, including, without limitationlimitation any fees or other amounts payable to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP thereunder, parking chargestrue, tenant direct electrical reimbursementscorrect and complete copies of which have been provided to Purchaser.
(c) Purchaser and Seller hereby acknowledge and agree that the amounts of all telephone, HVAC overtime chargeselectric, gas, steam, sewer, water bills, trash removal bills, janitorial and telephone booth maintenance service bills and vending machine revenues);other utility bills (collectively, “Utilities”) relating to the Premises and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid thereafter by Seller or adjusted between Purchaser and Seller after the same have been determined. Seller shall attempt to have all utility meters read as of the day immediately preceding the Closing Date. Seller shall promptly pay all unpaid bills, which obligation shall survive Closing. At Closing, Seller shall receive a credit for all refundable cash or other deposits posted with utility companies serving the Premises or any governmental agencies or authorities or posted pursuant to any Contract, or, at Seller’s option, Seller shall be entitled to receive and retain such refundable cash and deposits.
(d) (i) New Lease Expenses Monthly base rents (collectively, “Base Rents”) under the Leases shall be adjusted and prorated on an if, as and when collected basis. Base Rents collected by Purchaser or Seller after the Closing Date from tenants who owe Base Rents for periods prior to the Closing Date, shall be applied, (A) first to rents due and payable for the calendar month in which the Closing occurs, (B) next to all rents due and payable for the period after the calendar month in which the Closing occurs, and (C) next to all rents due and payable for the period preceding the calendar month in which the Closing occurs. Each such amount, less reasonable collection costs, shall be adjusted and prorated as provided in Section 10.1.2; and
above, and the party receiving such amount shall, within five (j5) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar Business Days, pay to the Property and located in other party the State of Floridaportion thereof to which it is so entitled.
Appears in 1 contract
Sources: Purchase and Sale Agreement (DiamondRock Hospitality Co)
Apportionments. 3.1 The following shall be apportioned between the Seller and the Purchaser at the Closing Closing, as of 11:59 p.m. midnight of the day night preceding the Closing Date on the basis of the actual number of days of the relevant period and a year of three hundred sixty five (the "ADJUSTMENT DATE"):365) days:
(a) fixed or base rents ("RENTS") which have been prepaidprepaid rents, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid payable by tenants applicable to periods which expire after the Closing DateTenants, which have been received by Sellerif, as and when received;
(b) to the extent not payable directly by any Tenants under their Leases, real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs)personal property taxes, water charges, sewer rents and charges and vault charges, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year)years, respectively, for which the same have been assessed;
(c) the value of fuel stored at the Properties, at Seller’s cost (including, without limitation, any taxes), on the basis of a statement from Seller’s supplier;
(d) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement transferred to, and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofassumed by, Purchaser;
(de) any prepaid items, items relating to the Properties (including, without limitation, fees for licenses which Licenses that are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(e) utilities, to the extent required by Section 3.4);
(f) utilities (including, without limitation, telephone, steam, electricity and gas), either:
(i) to the extent that current meter readings are available, on the basis of such readings; or
(ii) to the extent that current meter readings are unavailable, on the basis of the most recently issued bills therefor, subject to adjustment after the Closing when the next bills are available;
(g) transferable deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property Properties, if same are assigned to the Purchaser at the Closing, which deposits shall be credited in their entirety to Seller;
(gh) personal property taxesannual permit, license and inspection fees, if any, on the basis of the fiscal year for which assessed;
(h) all other revenues from the operation of the Property other than Rents and Additional Rents (includinglevied, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues)if rights thereunder are transferable to Purchaser;
(i) New Lease Expenses as provided itemized supplies on hand in Section 10.1.2unopened cartons or other containers, at Seller’s cost plus applicable sales taxes; and
(j) as to each Property, such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property Properties and located in the State city and state where the Property is located. In addition to the foregoing apportionments, Purchaser shall be credited with the Net Tenant Incentive Reimbursement, determined as set forth in Section 3.7 below.
3.2 If the Closing shall occur before a new real estate or personal property tax rate is fixed, then the apportionment of Floridataxes at the Closing shall be made initially on the basis of the tax rate for the preceding fiscal year applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed, any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party shall be reimbursed.
3.3 If, on the Closing Date, any Tenant is in arrears in the payment of rent, or has not paid the rent payable by it for the month in which the Closing occurs (whether or not it is in arrears for such month on the Closing Date), any rents received by Purchaser or Seller from such Tenant after the Closing shall be paid and applied in the following order of priority:
(a) first, to Seller and Purchaser (to be allocated between them as provided in Section 3.1), to the extent of all rent due and payable by such Tenant for the month in which the Closing occurs;
(b) next, to Purchaser, to the extent of all rent due and payable by such Tenant for the month after the month in which the Closing occurs;
(c) next, to Seller, to the extent of all rent due and payable by such Tenant for the month prior to the month in which the Closing occurs;
(d) next, to Purchaser, to the extent of all rent due and payable by such Tenant for the month or months after the month provided for in Section 3.3(b) above; and
(e) last, to Seller, to the extent of all rent due and payable by such Tenant for the period prior to the month provided for in Section 3.3(c) above. If rents, or any portion thereof, received by Seller or Purchaser after the Closing are due and payable to the other party by reason of this Section 3.3, the appropriate sum, less a proportionate share of any reasonable attorneys’ fees and costs and expenses expended in connection with the collection thereof, shall be promptly paid to the other party.
3.4 Purchaser shall promptly pay to Seller, out of the first “pass-through” charges for real estate taxes, operating expenses and/or other charges of a similar nature (“Additional Rents”) received from each Tenant, the amount of all Additional Rents that are due and payable by such Tenant with respect to any period prior to the Closing Date (whether or not such Additional Rents first became due and payable on or after the Closing Date), less a proportionate share of any reasonable attorneys’ fees and costs and expenses of collection thereof. Notwithstanding anything provided herein to the contrary, if it shall be determined by any court or arbitrator of competent jurisdiction that any Additional Rents charged to any Tenants prior to the Closing Date were in excess of what Seller was entitled to charge such Tenants, then, as between Seller and Purchaser, Seller shall be responsible for reimbursing such Tenants for any such overcharges, and Purchaser shall have no liability as a result of any such overcharges. Each of the parties shall cooperate with the other in all reasonable respects in connection with the preparation and distribution to the Tenants of reconciliation statements for Additional Rents due for the 2004 calendar year (if such statements are not prepared and distributed by Seller prior to the Closing) and for the 2005 calendar year, and each party shall promptly deliver to the other party true and complete copies of all of such reconciliation statements issued thereby.
3.5 After the Closing, Seller shall continue to have the right, in its own name, to demand payment of, and to collect, rent and/or Additional Rent arrearages owed to Seller by any Tenant, which right shall include the right to commence and/or continue legal actions or proceedings against any Tenant for the payment of any such arrearages, provided, however, that Seller shall not commence or continue any legal action or proceeding to terminate a Tenant’s tenancy. Seller’s delivery of the Lease Assignment to Purchaser at Closing shall not constitute a waiver by Seller of such right. Purchaser shall cooperate with Seller in all reasonable respects in connection with Seller’s efforts to collect such rents and/or Additional Rents, and shall take all reasonable steps, whether before or after the Closing Date, as may be necessary or desirable in order to carry out the intention of the foregoing, including, without limitation:
(a) adding any such arrearages to Purchaser’s bills to such Tenant for current rental obligations;
(b) delivering to Seller, upon demand, any relevant books and records (including, without limitation, any rent and/or Additional Rent statements, receipted bills and copies of Tenant checks used in payment of rent and/or Additional Rent);
(c) executing and delivering to Seller any and all reasonably required consents or other documents;
(d) testifying on behalf of Seller at any legal actions or proceedings in which collection of such rents and/or Additional Rents has become an issue; and
(e) performing any other reasonable act that shall be necessary or desirable in furtherance of Seller’s collection of such rents and/or Additional Rents. Purchaser shall not be obligated to incur any out-of-pocket cost or expense in connection with such cooperation, provided, however, that, if any such action requested in writing by Seller shall entail such cost and/or expense, then:
(i) Purchaser shall notify Seller of such cost and/or expense in writing (including Purchaser’s reasonable estimate of the amount thereof) prior to taking such action;
(ii) Purchaser shall nonetheless take such action if Seller notifies Purchaser that Seller will reimburse Purchaser for the reasonable, out-of-pocket cost and/or expense thereof; and
(iii) Seller shall reimburse Purchaser for such reasonable, out-of-pocket costs and/or expenses promptly after Seller’s receipt of a reasonable detailed invoice in connection therewith. If any such Tenant, in response to Seller’s legal actions or proceedings to recover any such rent and/or Additional Rent arrearages, commences its own legal action against Seller, or files a counterclaim to Seller’s legal action or proceeding, and such Tenant’s legal action or counterclaim names Purchaser as a defendant and relates to the issues raised in Seller’s legal action or proceeding, then, in such event, Seller shall indemnify, hold harmless and defend Purchaser with counsel of Seller’s choice and reasonably acceptable to Purchaser with respect to any such legal action or counterclaim. Purchaser shall not waive, compromise, settle, release, or discharge any claims against any Tenants for any past due rents and/or Additional Rent accrued prior to the Closing Date without Seller’s prior written consent.
3.6 If any of the items subject to apportionment under the foregoing provisions of this Article 3 cannot be apportioned at the Closing because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in computing apportionments at the Closing are discovered subsequent to the Closing, then such item shall be reapportioned, such errors and omissions shall be corrected and the proper party shall be reimbursed as soon as practicable after the Closing. Neither party shall have the right to require a recomputation of a Closing apportionment, or the correction of an error or omission in a Closing apportionment, unless one of the parties:
(a) has obtained the previously unavailable information or has discovered the error or omission; and
(b) has given notice thereof to the other party, together with a copy of its good faith recomputation of the apportionment and copies of all substantiating information used in such recomputation. The failure of a party to obtain any previously unavailable information or discover an error or omission with respect to an item subject to apportionment hereunder and to give notice thereof as provided above after the Closing 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.
3.7 Seller has informed Purchaser, and Purchaser confirms its understanding, that, pursuant to the provisions of the Fourth Amendment to Lease dated as of September 30, 2004, by and among Seller, as landlord, and Novo Nordisk Pharmaceuticals, Inc., as tenant, Seller is obligated to:
(a) reimburse Novo Nordisk Pharmaceuticals, Inc., for all or a portion of the cost and expense of renovating the premises formerly occupied by D▇▇▇▇ ▇▇▇▇▇▇ LLP; and
(b) after the earlier day to occur of June 30, 2005 or the date upon which ZS Associates, Inc., shall vacate and surrender its premises in the 100 College Road Building:
(i) reimburse Novo Nordisk Pharmaceuticals, Inc., for all or a portion of the cost and expense of renovating the premises surrendered by ZS Associates, Inc.;
(ii) allow Novo Nordisk Pharmaceuticals, Inc., to use and occupy the premises surrendered by ZS Associates, Inc., for three months rent free; and
(iii) construct a doorway from the fitness facility located on the first floor of the north wing of the 1▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ to the outside of the Building and install a key card operated access control system on such door and on the existing door from the cafeteria facility to the outside of the Building. Purchaser hereby acknowledges that its assumption of the Leases at Closing will include, but not be limited to, the foregoing reimbursement, rent credit and construction obligations. In exchange therefor, Seller shall allow to Purchaser an apportionment credit at closing, pursuant to Section 3.1 above, in an amount (the “Net Tenant Incentive Reimbursement”) equal to the difference between:
(x) One Million Ninety-Five Thousand Nine Hundred Twenty-Six ($1,095,926) Dollars, which the parties agree is a reasonable estimate of the aggregate cost and expense to be incurred by Purchaser in connection with such reimbursements, credit and construction work, without discount or interest factor; less
(y) if, between the date hereof and the Closing Date, Seller shall reimburse Novo Nordisk Pharmaceuticals, Inc., in whole or in part, for a reimbursable cost or expense as described above in this Section 3.7, allow a rent credit so described to Novo Nordisk Pharmaceuticals, Inc. and/or construct such doorway, the amount so reimbursed, credited and/or expended for such construction, as substantiated to Purchaser’s reasonable satisfaction at or prior to Closing. The provisions of this Section 3.7 shall survive the Closing.
3.8 The provisions of this Article 3 (including, without limitation, the provision for one party to give notice to the other under Section 3.6 requesting any correction or recomputation of a closing apportionment) shall survive the Closing for a period of one year, except that the respective rights and obligations of the parties under Sections 3.4 and 3.5 shall survive the Closing for the period expiring one year after the respective items of rent and/or Additional Rent referred to therein shall become due and payable and, thereafter, during the pendency of any action brought by Seller during such period against the applicable Tenant.
Appears in 1 contract
Apportionments. The (a) With respect to each Property, subject to the express terms of this Section 12, the following shall be apportioned prorated between the Seller applicable Property Owner as indirectly constituted immediately prior to the Closing (with Cedar owning 20% of Property Owner and the Purchaser at remaining 80% being owned by RioCan) and the applicable Property Owner as constituted immediately following the Closing (with RioCan owning 100% of such Property Owner), as of 11:59 p.m. of on the day preceding the Closing Date (the "ADJUSTMENT DATE"“Adjustment Date”) (on the basis of the actual number of days elapsed over the applicable period):
(ai) fixed Fixed rents, additional rents, percentage rent and all other sums and credits due or base rents payable under the applicable Leases and any other items of income, as and when collected ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other it being acknowledged that all such amounts paid by tenants applicable to periods which expire received after the Closing Date, which have been received by Sellershall be applied as provided in Section 12(i));
(bii) All real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and rents, vault charges and vault charges, if any, assessments on the Property on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, year for which same have been assessedassessed (except to the extent required to be paid by Tenants in good standing pursuant to Leases);
(ciii) charges and payments under Contracts that are being assigned to All operating expenses, including, without limitation, all amounts payable by the Purchaser applicable Property Owners pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofGround Leases (except to the extent required to be paid by Tenants in good standing pursuant to Leases);
(div) any Any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(ev) utilitiesUtilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor (except to the extent required to be paid by Section 3.4Tenants pursuant to Leases);
(fvi) deposits Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(gvii) personal property taxesWithout duplication of Section 2(a)(I), if any, on the basis payments of the fiscal year for which assessedprincipal and interest and other costs payable under any Loan Documents;
(hviii) all other revenues from Subject to clause (j) below, cash and cash equivalents (e.g., U.S. Treasuries) held by or for the operation account of any of the Property other than Rents and Additional Rents (Owners, REIT, REIT Sub or the Partnership including, without limitation, parking charges(a) the net amount paid under the Franklin Purchase Agreement and (b) any reproration of, tenant direct electrical reimbursementsor adjustments to, HVAC overtime chargesthe net amount paid, and telephone booth and vending machine or expenses or revenues, under the Franklin Purchase Agreement (in the case of either (a) or (b), whether paid to REIT Sub or any assignee or designee);
(iix) New Lease Expenses as provided Deposits, reserves or escrows made by or on behalf of any of the Owners with respect to Loans and other obligations that will remain in Section 10.1.2effect on and after the Closing; and
(jx) such Such other items as are customarily apportioned between sellers and purchasers of real properties (and interests therein) of a type similar to the Property Properties and located in the State or Commonwealth in which each such Property is located.
(b) With respect to each Lease pursuant to which the applicable Tenant commenced the payment of Floridaregularly scheduled rent before July 1, 2012, Cedar, as to 20%, and RioCan, as to 80%, shall be responsible and liable to pay and shall pay when due the following (collectively, “Leasing Costs”):
(i) any real estate or leasing commissions (including, without limitation, commissions payable to Cedar or its affiliates);
(ii) any tenant inducements or tenant allowances payable under the Leases (or any modification or amendment thereof);
(iii) any costs and expenses of any lease take-over, assignment, assumption or other commitments required pursuant to the Leases (or any modification or amendment thereof) and
(iv) the costs and expenses of any initial tenant build-out work or improvements to rentable or rental space in the applicable Building required to be performed by the landlord thereunder and arising pursuant to the Leases (or any modification or amendment thereof).
(c) With respect to Leasing Costs for each Lease pursuant to which the applicable Tenant did not commence the payment of regularly scheduled rent until on or after July 1, 2012, RioCan shall be responsible for payment of the Leasing Costs for each such Lease. For purposes of clause (b) and this clause (c), with respect to Leasing Costs incurred in connection with amendments or modifications of Leases (including, without limitation, extensions of Leases), allocation of responsibility for Leasing Costs incurred in connection with such amendments or modifications shall be based on the commencement of regularly scheduled rent under such amendments or modifications or, if no regularly scheduled rent shall be contemplated by such amendments or modifications and Leasing Costs were nonetheless incurred, based on the date of such amendment or modification.
(d) There will be no adjustment (other than current year adjustments) for deferred amortized common area costs, if any, that are recoverable from Tenants after any Closing nor will any adjustments (other than current year adjustments) be made with respect thereto after any Closing regardless of any amounts received from Tenants relating thereto.
(e) All PREIT Earnouts due and payable after the Closing shall be the sole responsibility of the applicable Property Owner as constituted immediately following the Closing (with RioCan owning 100% of such Property Owner) and shall not be subject to proration.
(f) A statement of adjustments shall be prepared by Cedar for approval of RioCan, acting reasonably, at least five (5) Business Days before the Closing Date. The net amount of such adjustments shall be an adjustment for purposes of calculating the Net Consideration as contemplated by clause 2(a)(II).
(g) If, on the Closing Date, any items of additional rent or percentage rent under the Leases or other income or expense of the Properties shall not have been ascertained, then such items shall be adjusted retroactively as and when the same are ascertained. If the final cost or amount of any item which is to be adjusted cannot be determined at Closing, then an initial adjustment for such item shall be made at Closing, such amount to be estimated by Cedar, acting reasonably, as of the Adjustment Date on the basis of the best evidence available at the Closing as to what the final cost or amount of such item will be. A final adjustment shall be made no later than the date being one (1) year after the Closing Date with respect to all matters other than real estate taxes and two (2) years after the Closing Date with respect to real estate taxes (each, an “Outside Adjustment Date”). No re-adjustment may be claimed by any party with respect to any Property later than the applicable Outside Adjustment Date.
(h) If, with respect to any Property, the Closing shall occur before the applicable real estate tax rate is fixed, the apportionment of real estate taxes for such Property at the Closing shall be based upon the tax rate for the next preceding year applied to the latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed.
(i) If any Tenant at a Property is in arrears in the payment of rent or any other receivables on the Closing Date, any and all rents and receivables received from such Tenant after the Closing shall be applied in the following order of priority: (i) first to the month in which the Closing occurred; (ii) then to any month or months following the month in which the Closing occurred; and (iii) then to the months preceding the month in which the Closing occurred. If rents or other receivables or any portion thereof received after the Closing are payable to the other party by reason of this allocation, the appropriate sum, less a proportionate share of any reasonable attorneys’ fees, costs and expenses of collection thereof, shall be promptly paid to the other party.
(j) Notwithstanding the foregoing, the first $660,000 of cash and cash equivalents shall be paid to Cedar, and shall not be subject to adjustment or apportionment in accordance with the terms of this Agreement, or otherwise be taken into account in calculating the Net Consideration. After such payment, for purposes of the calculation in Section 12(a), the balance of cash and cash equivalents shall be allocated 20% to Cedar and 80% to RioCan.
(k) The provisions of this Section 12 shall survive the Closing.
Appears in 1 contract
Apportionments. The (a) As to each Property, the following items shall be apportioned between the Seller relevant Partnership and the Purchaser at the Closing Operating Partnership as of 11:59 p.m. of the day immediately preceding the Closing Date (it being understood that all such adjustments shall be made to the "ADJUSTMENT DATE"quantity of OP Units to be issued and delivered to the Affiliated Partnerships, and that, for purposes thereof, the Operating Partnership shall be deemed to be the owner of the Properties on the Closing Date):
(a1) fixed or base rents interest on the Morgan Loan;
("RENTS"2) the Reserves and Escrows (which have been prepaid, security deposits referred to in Section 8(e), Rents will be held by Morgan for the benef▇▇ ▇▇ the Operating Partnership following the Closing);
(3) real estate and personal property taxes, on the usual and customary "DUE DATE" basis;
(4) rents under the Leases for the relevant month, as and when collected;
(5) coin operated laundry concession income;
(6) the full amount of all Security Deposits then held under the Leases;
(7) charges for water, sewer, electricity, fuel, gas, telephone and other utilities, which are not metered or otherwise charged directly to tenants under the Leases; provided that if the consumption of any such utilities is measured by meters, at Closing the Partnership shall furnish a current reading of each meter, and provided, further, that if there is not a meter, or if the meter(s) cannot be read by the relevant utility prior to the Closing, the charges therefor shall be adjusted at the Closing on the basis of the charges for the prior period for which bills were issued, and shall be further adjusted when the bills for the period including the Closing Date are issued;
(8) amounts paid or payable under the Service Contracts to be assigned to and assumed by the Operating Partnership;
(9) fees paid for assignable current Licenses;
(10) premiums on existing transferable insurance policies, or renewals of those expiring prior to Closing, if any such policy shall, at the option of the operating Partnership, be assigned to and assumed by the operating Partnership at the Closing; and
(11) other expenses of operation.
(b) Rents which are due and payable to the Partnership by any tenant but uncollected as of the Closing Date shall not be adjusted at the Closing. All rents collected by the operating Partnership after the Closing Date shall be applied first to rentals accruing subsequent to the Closing Date, and then to any rents past due for the calendar month in which the Closing Date occurs (subject to adjustment). All rent collected after Closing for any period prior to the Closing shall belong to the relevant Partnership, and Additional Rents and other amounts if paid to the Operating Partnership, the Operating Partnership shall promptly send such rent to the relevant Partnership, less all expenses incurred by the Operating Partnership, if any, in regard to the collection thereof. At the Closing, each Partnership shall deliver to the Operating Partnership a schedule of all such past due, but uncollected rents owed by tenants. All rents collected by any Partnership, prior to Closing, for rental period(s) subsequent to the Closing shall be paid by tenants applicable such Partnership to the Operating Partnership at the Closing. All rents collected by the Operating Partnership or the Affiliated Partnerships for rental periods which expire after the Closing shall belong to the Operating Partnership, and if paid to the Affiliated Partnerships, the Affiliated Partnerships shall promptly send such rent to the Operating Partnership.
(c) Any apportionment estimated at the Closing shall be finally adjusted as soon as practicable after the Closing. Any error in the calculation of apportionments shall be corrected subsequent to the Closing with appropriate credits to be given based upon corrected adjustments; provided, however, that all adjustments (except as to errors caused by misrepresentation) shall be deemed final upon the expiration of ninety (90) days after the Closing Date, which have been received by Seller;
(b) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and charges and vault charges, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessed;
(c) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereof;.
(d) If on the Closing Date, any prepaid itemsProperty shall be affected by any special assessment for public improvements or otherwise which is or may become payable by the relevant Partnership in annual installments, includingof which the first installment is then a charge or lien or has been paid, without limitationthen, fees for licenses the purposes of this Agreement, all the unpaid installments of such assessment, including those which are transferred to become due and payable after the Purchaser Closing, shall be deemed to be due and payable and to be liens upon such Property, and shall be paid and discharged by the relevant Partnership at the Closing and annual permit and inspection fees;Closing.
(e) utilitiesEach Partnership shall be responsible for, and shall pay at or prior to Closing, all amounts due to the extent required by Section 3.4;
(f) deposits with telephone Closing Date for employees, salaries, accrued vacation pay, withholding and payroll taxes, and other utility companiesbenefits, and any other persons management fee affecting the Property, or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(g) personal property taxesProperties, if any, on the basis of the fiscal year for which assessed;
(h) all other revenues from the operation of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(i) New Lease Expenses as provided in Section 10.1.2; and
(j) owned by such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of FloridaPartnership.
Appears in 1 contract
Sources: Agreement for Contribution of Real Estate and Related Property (Acc Corp)
Apportionments. The (a) With respect to each Property, the following shall be apportioned prorated between the Seller applicable Property Owner as constituted immediately prior to the Closing (assuming that Cedar owned 100% of the Interests in such Property Owner), and the Purchaser at applicable Property Owner as constituted immediately following the Closing (assuming that Cedar owned 20% of the Interests in such Property Owner and the remaining 80% of such Interests were owned by RioCan), as of 11:59 p.m. of on the day preceding the Closing Date (the "ADJUSTMENT DATE"“Adjustment Date”) (on the basis of the actual number of days elapsed over the applicable period):
(ai) fixed Fixed rents, additional rents, percentage rent and all other sums and credits due or base rents payable under the applicable Leases and any other items of income, as and when collected ("RENTS") which have been prepaid, security deposits referred to it being acknowledged that all such amounts received after the applicable Closing shall be applied as provided in Section 8(e19(i), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Seller);
(bii) All real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and rents, vault charges and vault charges, if any, assessments on the Property on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, year for which same have been assessedassessed (except to the extent required to be paid by Tenants in good standing pursuant to Leases);
(ciii) charges and payments under Contracts that are being assigned to All operating expenses, including, without limitation, all amounts payable by the Purchaser applicable Property Owners pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofGround Leases (except to the extent required to be paid by Tenants in good standing pursuant to Leases);
(div) any Any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(ev) utilitiesUtilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor (except to the extent required to be paid by Section 3.4Tenants pursuant to Leases);
(fvi) deposits Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(gvii) personal property taxes, if any, on the basis Payments of the fiscal year for which assessedprincipal and interest and other costs payable under any Loan Documents;
(hviii) all other revenues from Cash and cash equivalents (e.g., U.S. Treasuries) held by or for the operation account of any of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues)Owners;
(iix) New Lease Expenses as provided Deposits, reserves or escrows made by or on behalf of any of the Owners with respect to loans and other obligations that will remain in Section 10.1.2effect on and after the applicable Closing; and
(jx) such Such other items as are customarily apportioned between sellers and purchasers of real properties (and interests therein) of a type similar to the Property Properties and located in the State or Commonwealth in which each such Property is located, including, without limitation, any items not expressly included in the items that are the responsibility of FloridaCedar pursuant to Section 19(b) through (d) below).
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. of on the day immediately preceding the Closing Date (the "ADJUSTMENT DATE"):“Apportionment Date”) on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365-day year: 507997960.5 132
(ai) fixed or base rents ("RENTS") which have been prepaid, security deposits referred subject to in Section 8(e6(b), Rents for the month in which the Closing occurs prepaid rents, fixed rents and Additional Rents and any other amounts paid payable by tenants applicable to periods which expire after Seller pursuant to the Closing DateLeases (including, which have been received by Sellerwithout limitation, operating expense escalation payments, real estate tax escalation payments and percentage rent, if any, payable under the Leases) (collectively, “Rents”);
(bii) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above), vault charges and vault chargestaxes, if anybusiness improvement district taxes, and other real estate assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, “Property Taxes”), on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, respective periods for which same have been assessedeach is assessed or imposed, to be apportioned in accordance with Section 6(c);
(ciii) charges and payments administrative charges, if any, permitted under Contracts that are being assigned to the Purchaser Leases or applicable law, on security deposits held pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofLeases;
(div) fuel supplied for the Building, if any, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter from Seller’s fuel supplier shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor);
(v) prepaid items, including, without limitation, fees for licenses which are transferred and other permits assigned to the Purchaser at the Closing and annual permit and inspection fees(it being understood that evidence of such prepayment must be provided to Purchaser);
(evi) any amounts prepaid or payable under the Assumed Contracts and, if Purchaser elects to assume the Property Management Agreement, the Property Management Agreement;
(vii) electricity, water, gas, steam, telephone, internet, cable or satellite television and any other utilities, at the rates most recently charged to Seller, plus sales taxes thereon, except to the extent required to be paid by Section 3.4tenants pursuant to Leases in effect as of the Closing Date directly to the entity imposing same;
(fviii) deposits all other operating expenses and income with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with respect to the Property if same which are assigned to the Purchaser at the Closingcustomarily apportioned;
(gix) personal property taxes, if any, on any amounts prepaid or payable under the basis of the fiscal year for which assessedGround Lease;
(hx) all other revenues from any amounts prepaid or payable under the operation of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(i) New Lease Expenses as provided in Section 10.1.2Airspace Lease; and
(jxi) such other items as are customarily apportioned between sellers in real estate closings of commercial properties in the Seattle, Washington area.
(i) Monthly base rents (collectively, “Base Rents”) under the Leases shall be adjusted and purchasers of real properties of a type similar prorated on an if, as and when collected basis. Base Rents collected by Purchaser or Seller after the Closing Date from tenants who owe Base Rents for periods prior to the Property Closing Date, shall, after first deducting Purchaser’s actual out-of-pocket costs of collection, 507997960.5 133 if applicable, be applied, (A) first, to Base Rents attributable to periods from and located in the State of Florida.after Closing and
Appears in 1 contract
Sources: Purchase and Sale Agreement
Apportionments. The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. of the day preceding the Closing Date (the "ADJUSTMENT DATEAdjustment Date"):
(a) fixed or base rents ("RENTSRents") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Seller;
(b) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and charges and vault charges, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessed;
(c) value of prepaid fuel belonging to the Seller stored on the Property, at the Seller's cost, including any taxes, on the basis of a statement from the Seller's suppliers;
(d) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE Schedule 3 hereto or permitted renewals or replacements thereof;
(de) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(ef) utilities, to the extent required by Section 3.4;
(fg) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(gh) personal property taxes, if any, on the basis of the fiscal year for which assessed;
(hi) all other revenues from the operation of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(ij) New Lease Expenses as provided in Section 10.1.2;
(k) all rent, charges, additional rent or expenses or other charges under the Ground Leases; and
(jl) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of FloridaLos Angeles County, California.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Dean Witter Realty Yield Plus Ii Lp)
Apportionments. 6.1. The parties agree that the following shall be apportioned between the Seller and the Purchaser at the Closing Closing, as of 11:59 p.m. of the day immediately preceding the Closing Date (on the "ADJUSTMENT DATE"):
(a) fixed or base rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for basis of the actual number of days of the month in which that shall have elapsed as of the Closing occurs Date and Additional Rents based upon the actual number of days in the month and other amounts paid by tenants applicable a 365-day year, with Seller receiving credit (and retaining obligations) with respect to any periods which expire prior to the Closing Date, and Purchaser receiving credit (and assuming obligations) with respect to any period from and after the Closing Date, which have been received and the net aggregate amount thereof either shall be paid by Seller;
(b) real estate taxesPurchaser to Seller or credited to Purchaser towards the Purchase Price, special assessments (but only any installment relating to as the period in which the Adjustment Date occurs)case may be, water charges, sewer rents and charges and vault charges, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessed;
(c) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereof;
(d) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;:
(gi) personal Non-delinquent real property taxes, if any, on the basis of the fiscal year for which assessed;
(h) all other revenues from the operation of the Property other than Rents taxes and Additional Rents assessments (including, without limitation, parking any assessments relating to Permitted Title/Survey Exceptions (as hereinafter defined), business improvement district assessments or similar charges), tenant direct electrical reimbursements, HVAC overtime water rates and charges, and telephone booth sewer taxes, in each case, not otherwise payable directly to the taxing authority by any tenant under a Lease.
(ii) Fixed, escalation, additional and vending machine revenuespercentage rent, parking charges and all other charges under the Leases (including, without limitation, electricity and utility surcharges, administrative fees in connection with security deposits held by Seller under the Leases);, if, as and when collected in accordance with Section 6.6 of this Agreement (all of the foregoing being collectively referred to as “Rents”).
(iii) Charges under the Contracts.
(iv) Non-delinquent vault charges and taxes not otherwise payable directly to the taxing authority by any tenant under a Lease.
(v) Annual license, permit, franchise and inspection fees, to the extent transferred to Purchaser at Closing pursuant hereto.
(vi) Deposits, if any, on account with utility companies servicing the Premises (and Seller and Purchaser each agrees to cooperate to effectuate the transfer of any such deposits), provided that, at Seller’s option, Seller will obtain a refund of any such utility deposits in effect and Purchaser shall provide Purchaser’s own utility deposits directly to the applicable utility companies.
(vii) All other items (including, without limitation, utilities) customarily apportioned in connection with the sale of similar properties similarly located.
6.2. If the real property taxes and assessments (including, without limitation, any assessments relating to Permitted Title/Survey Exceptions, business improvement district assessments or similar charges), water rates and charges, and sewer taxes, in each case, not otherwise payable directly to the taxing authority by any tenant under a Lease are not finally fixed before the Closing Date, the apportionments thereof made at the Closing shall be based on the real property taxes and assessments assessed for the preceding fiscal year or the applicable billing period, or on estimated water and sewer charges and after the real property taxes or assessments or water and sewer charges are finally fixed, Seller and Purchaser shall, within thirty (30) days after the date such taxes or rates and charges are fixed, make a recalculation or the apportionment of the same, and Seller or Purchaser, as the case may be, shall promptly make an appropriate settlement with the other based upon such recalculation.
(i) New Lease Expenses as provided If the Premises or any part thereof shall be or shall have been affected by any bond or special assessment prior to the Closing Date, such bond or special assessment due and relating to the period of time prior to the Closing Date shall be paid by Seller and such bond or special assessment due or relating to the period of time from and after the Closing Date shall be paid by Purchaser. If any bond or special assessment on the Premises is payable in Section 10.1.2; andinstallments, then the installment for the current period shall be prorated (with Purchaser assuming the obligation to pay any installments due from and after the Closing Date).
(jii) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar If the Premises or any part thereof shall be or shall have been affected by any bond or special assessment on or subsequent to the Property Closing Date, whether or not payable in annual installments, the entire amount of such assessment shall be paid by Purchaser.
6.4. If there are any water meters on the Premises (other than meters measuring water consumption costs which are the obligation of tenants to pay under Leases), Seller shall furnish readings as close to Closing as reasonably practicable (provided such third-parties are able to provide such meter readings), but in any event not more than five (5) days prior to Closing, and located the unfixed water rates and charges and sewer taxes and rents, if any, based thereon for the intervening time, shall be apportioned on the basis of such last readings. If there is any fuel on hand, Seller shall furnish a reading, and the unfixed charges for such fuel, for the period from the date of such reading until the Closing Date shall be apportioned based upon such reading.
6.5. The amount of any unpaid taxes, assessments, water charges, sewer taxes and rents and vault charges and taxes which Seller is obligated to pay and discharge, with interest and penalties thereon through and including the date two (2) days after the Closing Date may, at the option of Seller, be allowed to Purchaser out of the balance of the Purchase Price, provided that official bills therefor with interest and penalties thereon are furnished by Seller and paid at Closing. If there are any other liens or encumbrances which Seller is paying and discharging pursuant to Section 8 of this Agreement, Seller may use any portion of the Purchase Price to satisfy the same, provided that the Title Company (as hereinafter defined) shall be willing to insure Purchaser against collection of such liens and/or encumbrances, including interest and penalties, in which event such liens and encumbrances shall not be objections to title.
(i) To the extent that Purchaser or Seller receives Rents under Leases (including monthly payments of escalation and percentage rents and “pass-throughs”) after the Closing Date, such Rents shall be distributed and applied in the State following order of Floridapriority: (x) first, to Purchaser for Rents due and payable which accrue on or after the Closing Date until such tenants are current on post-Closing Rents; (y) second, to Purchaser and Seller on a prorated basis for Rents due and payable which accrue for the calendar month in which the Closing occurred; and (z) third, to Seller to the extent of all past due Rents which accrued pre-Closing.
(ii) Purchaser shall use good faith efforts to collect any and all Rents due pursuant to the Leases with respect to any period prior to Closing for a period of six (6) months thereafter, provided that Purchaser shall not be obligated to file suit or dispossess any tenant to collect same. If Seller is entitled, in accordance with the provisions of this Agreement, to all or any portion of any Rents owed by any tenant under a Lease and such tenant shall be in default of such tenant’s obligation to pay such Rents, Seller reserves the right to commence any and all appropriate legal proceedings to collect such Rents only (i) against those former tenants who no longer occupy any portion of the Premises, and (ii) after the expiration of the aforesaid six (6) month period.
6.7. Prior to the Closing, Purchaser and Seller shall cooperate to arrange for utility services to the Premises to be discontinued in Seller’s name, as of the day immediately prior to the Closing Date, and to be reinstated in Purchaser’s name, as of the Closing Date. In the event that the foregoing cannot be effectuated, then Seller shall furnish readings of the applicable utility meters to a date not more than thirty (30) days prior to the Closing Date, and the unfixed charges, if any, based thereon for the intervening time, shall be apportioned on the basis of such last readings.
Appears in 1 contract
Sources: Sale Purchase Agreement (Bluerock Residential Growth REIT, Inc.)
Apportionments. 8.1 The following items of expenditure and income shall be apportioned between such that the Seller cost of items of expenditure accrued, or referable to periods, prior to the Completion Date shall be borne by the Vendors and thereafter by the Purchaser and the benefit of items of income accrued, or referable to periods, prior to the Completion Date shall belong to the Vendors and thereafter to the Purchaser:
8.1.1 all rents, rates, gas, water, electricity and telephone charges and other outgoings relating to or payable in respect of the Leased Properties;
8.1.2 all rents, royalties and other periodical payments receivable in respect of the Business;
8.1.3 all vehicle licence fees payable in respect of any motor vehicles included in the Machinery and Equipment;
8.1.4 all salaries, wages, accrued holiday pay entitlement, and other emoluments and all statutory contributions, salaries tax and employer's contributions to the Retirement Scheme relating to the employment of the Transferring Employees in the Business;
8.1.5 all pre-payments made, and all deposits received, by the Vendors under the Purchased Contracts; and
8.1.6 all rents, royalties, licence fees and other periodical payments in respect of the Business.
8.2 The Vendors and the Purchaser at the Closing as of 11:59 p.m. shall use all reasonable endeavours to draw up and agree a statement of the day preceding the Closing Date (the "ADJUSTMENT DATE"):
(a) fixed or base rents ("RENTS") which have been prepaid, security deposits apportionments referred to in Section 8(e)Clause 8.1, Rents for and the month in which balance owing by either the Closing occurs and Additional Rents and other amounts paid by tenants applicable Vendors or the Purchaser to periods which expire one another, as soon as practicable after the Closing Completion Date. If such statement has not been prepared and agreed within 30 days after the Completion Date, which have been received by Seller;
either the Vendors or the Purchaser may refer the matter for resolution in accordance with the procedure in Clause 16. Payment of the balance agreed, or determined under Clause 16 to be due, shall be made within 14 days after agreement or determination (bas the case may be) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and charges and vault charges, if any, together with interest on the basis amount due from and including the Completion Date down to but not including the date of the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessed;
(c) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereof;
(d) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser payment at the Closing and annual permit and inspection fees;
(e) utilitiesrate of 2% above the best lending rate from time to time of The Hongkong Bank, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(g) personal property taxes, if any, compounded on the basis last days of the fiscal year for which assessed;
(h) all other revenues from the operation of the Property other than Rents March, June, September and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(i) New Lease Expenses as provided December in Section 10.1.2; and
(j) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of Floridaeach year.
Appears in 1 contract
Apportionments. The (a) Subject to the express terms of this Section 12 the following items of income and expense shall be apportioned between prorated on the Seller basis that REIT Sub owned the Property Owner (and the Purchaser at Property) prior to the Closing transfer of the Interests to Cedar and that Cedar owned the Property Owner (and the Property) following the Closing. as of 11:59 p.m. of on the day preceding the Closing Date (the "ADJUSTMENT DATE"“Adjustment Date”) (on the basis of the actual number of days elapsed over the applicable period):
(ai) fixed Fixed rents, additional rents, percentage rent and all other sums and credits due or base rents payable under the Leases and any other items of income, as and when collected ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other it being acknowledged that all such amounts paid by tenants applicable to periods which expire received after the Closing Date, which have been received by Sellershall be applied as provided in Section 12(j);
(bii) All real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and rents, vault charges and vault charges, if any, assessments on the Property on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, year for which same have been assessedassessed (except to the extent required to be paid by Tenants in good standing pursuant to Leases);
(ciii) charges and payments under Contracts that are being assigned All operating expenses (except to the Purchaser extent required to be paid by Tenants in good standing pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofLeases);
(div) any Any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(ev) utilitiesUtilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor (except to the extent required to be paid by Section 3.4Tenants pursuant to Leases);
(fvi) deposits Deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(gvii) personal property taxesWithout duplication of Section 2(a), if any, on payments of principal and interest and other costs payable under the basis of the fiscal year for which assessedLoan;
(hviii) all other revenues from Cash and cash equivalents (e.g., U.S. Treasuries) held by or for the operation account of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues)Owner;
(iix) New Lease Expenses as provided Deposits, reserves or escrows made by or on behalf of the Property Owner with respect to the Loan and other obligations that will remain in Section 10.1.2effect on and after the Closing; and
(jx) such Such other items as are customarily apportioned between sellers and purchasers of real properties (and interests therein) of a type similar to the Property and located in the State or Commonwealth in which the Property is located.
(b) With respect to each Lease pursuant to which the applicable Tenant commenced the payment of Floridaregularly scheduled rent before July 1, 2012 REIT Sub shall be responsible and liable to pay and shall pay when due the following (collectively, “Leasing Costs”):
(i) any real estate or leasing commissions (including, without limitation, commissions payable to Cedar or its affiliates);
(ii) any tenant inducements or tenant allowances payable under the Leases (or any modification or amendment thereof);
(iii) any costs and expenses of any lease take-over, assignment, assumption or other commitments required pursuant to the Leases (or any modification or amendment thereof); and
(iv) the costs and expenses of any initial tenant build-out work or improvements to rentable or rental space in the applicable Building required to be performed by the landlord thereunder and arising pursuant to the Leases (or any modification or amendment thereof).
(c) With respect to Leasing Costs for each Lease pursuant to which the applicable Tenant did not commence the payment of regularly scheduled rent until on or after July 1, 2012, Cedar shall be responsible for payment of the Leasing Costs for each such Lease. For purposes of clause (b) and this clause (c), with respect to Leasing Costs incurred in connection with amendments or modifications of Leases (including, without limitation, extensions of Leases), allocation of responsibility for Leasing Costs incurred in connection with such amendments or modifications shall be based on the commencement of regularly scheduled rent under such amendments or modifications or, if no regularly scheduled rent shall be contemplated by such amendments or modifications and Leasing Costs were nonetheless incurred, based on the date of such amendment or modification.
(d) There will be no adjustment (other than current year adjustments) for deferred amortized common area costs, if any, that are recoverable from Tenants after Closing nor will any adjustments (other than current year adjustments) be made with respect thereto after Closing regardless of any amounts received from Tenants relating thereto.
(e) A statement of adjustments shall be prepared by Cedar for approval of RioCan Holdings, REIT and REIT Sub, acting reasonably, at least five (5) Business Days before the Closing Date.
(f) If, on the Closing Date, any items of additional rent or percentage rent under the Leases or other income or expense of the Property shall not have been ascertained, then such items shall be adjusted retroactively as and when the same are ascertained. If the final cost or amount of any item which is to be adjusted cannot be determined at Closing, then an initial adjustment for such item shall be made at Closing, such amount to be estimated by Cedar, acting reasonably, as of the Adjustment Date on the basis of the best evidence available at the Closing as to what the final cost or amount of such item will be. A final adjustment shall be made no later than the date being one (1) year after the Closing Date with respect to all matters other than real estate taxes and two (2) years after the Closing Date with respect to real estate taxes (each, an “Outside Adjustment Date”). No re-adjustment may be claimed by any party with respect to any Property later than the applicable Outside Adjustment Date.
(g) Adjustment made pursuant to subsections (e) and (f) above shall be adjustments to income and expense and not to the consideration payable for the Interests, and the net amount thereof shall be paid by one party to the other in accordance therewith.
(h) If, with respect to the Property, the Closing shall occur before the applicable real estate tax rate is fixed, the apportionment of real estate taxes for the Property at the Closing shall be based upon the tax rate for the next preceding year applied to the latest assessed valuation. Promptly after the new tax rate or assessment is fixed, the apportionment of taxes or assessments shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed.
(i) Cedar agrees that the Price will not be distributed by REIT Sub prior to sale to RioCan Holdings pursuant to the Other Agreement.
(j) If any Tenant at the Property is in arrears in the payment of rent or any other receivables on the Closing Date, any and all rents and receivables received from such Tenant after the Closing shall be applied in the following order of priority: (i) first to the month in which the Closing occurred; (ii) then to any month or months following the month in which the Closing occurred; and (iii) then to the months preceding the month in which the Closing occurred. If rents or other receivables or any portion thereof received after the Closing are payable to the other party by reason of this allocation, the appropriate sum, less a proportionate share of any reasonable attorneys’ fees, costs and expenses of collection thereof, shall be promptly paid to the other party.
(k) The provisions of this Section 12 shall survive the Closing.
Appears in 1 contract
Sources: Agreement Regarding Purchase of Interests (Cedar Realty Trust, Inc.)
Apportionments. A. The following shall be apportioned between the Seller and the Purchaser at the Closing with respect to the Premises as of 11:59 p.m. of the day immediately preceding the Closing Date (the "ADJUSTMENT DATE"):
(a) fixed or base rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received and the net amount thereof either shall be paid by Seller;
(b) real estate taxesPurchaser to Seller or credited to Purchaser, special assessments (but only any installment relating to as the period in which case may be, at the Adjustment Date occurs), water charges, sewer rents and charges and vault charges, if any, on the basis of the fiscal years Closing (or applicable billing period if other than a fiscal year)thereafter, respectively, for which same have been assessed;
(c) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement hereof):
(i) Real property taxes and listed on SCHEDULE 3 hereto assessments (or permitted renewals installments thereof), BID taxes, vault charges and any other governmental taxes, charges or replacements thereofassessments levied or assessed against the Premises, except those required by Leases to be paid by a Tenant directly to the entity imposing same;
(dii) any prepaid itemsWater rates and charges, including, without limitation, fees for licenses which are transferred except those required by Leases to be paid by a Tenant directly to the Purchaser at entity imposing same;
(iii) Sewer taxes and rents, except those required by Leases to be paid by a Tenant directly to the Closing entity imposing same (collectively with the items described in the immediately preceding clauses (i) and annual permit (ii), “Property Taxes”);
(iv) Permit, license and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(g) personal property taxes, if any, on the basis of the fiscal year for which assessedlevied, if the rights with respect thereto are transferred to Purchaser;
(hv) all other revenues from Fuel, if any, at the operation cost per gallon most recently charged to Seller as of the Property other Closing Date, based on the supplier’s measurements thereof, plus sales taxes thereon, which measurements shall be given by Seller to Purchaser as close to the Closing Date as is reasonably practicable (but in no event more than two (2) Business Days prior to Closing), and which, absent manifest error, shall be conclusive and binding on the Seller and Purchaser, except those required by Leases to be paid by a Tenant directly to the entity imposing same;
(vi) Deposits on account with any utility company servicing the Premises to the extent transferred to Purchaser shall not be apportioned, and Seller shall receive a credit in the full amount thereof (including accrued interest thereon, if any);
(vii) Rents (as hereinafter defined), if, as and Additional Rents when collected, in accordance with Section 7(F) hereof;
(viii) Leasing Costs (as hereinafter defined), in accordance with Section 20(B) hereof;
(ix) Payments due under any Surviving Contracts;
(x) Wages and fringe benefits (including, without limitation, parking vacation pay, sick days, health, welfare, pension and disability benefits) and other compensation payable to all Employees (other than and not including pension withdrawal liability, which is addressed in Article 11 hereof); and
(xi) All other items customarily apportioned in connection with the sale of similar properties similarly located.
B. Apportionment of Property Taxes shall be made on the basis of the fiscal year for which assessed. If the Closing Date shall occur before an assessment is made or a tax rate is fixed with respect to Property Taxes for the tax period in which the Closing Date occurs, apportionment for any item not yet fixed shall be made on the basis of the Property Tax rate for the preceding year applied to the latest assessed valuation. After the tax rate for Property Taxes is finally fixed, Seller and Purchaser shall promptly make a recalculation of the apportionment of same after the Closing, and Seller or Purchaser, as the case may be, shall make an appropriate payment to the other based upon such recalculation.
C. Any unpaid amounts due in respect of Property Taxes which Seller is obligated to pay and discharge, with interest and penalties thereon (if any) to the Closing Date may, at Seller’s option, be allowed to Purchaser out of the balance of the Purchase Price, provided that official bills therefor with interest and penalties thereon (if any) are furnished by Seller at the Closing and provided that the Title Insurer will omit same as exceptions from Purchaser’s title insurance policy, at no additional cost or expense to Purchaser.
D. If any refund of Property Taxes is made after the Closing Date covering a period prior to and/or after the Closing Date, the same shall be applied first to the reasonable out-of-pocket costs incurred by Seller or Purchaser, as the case may be, in obtaining same and the balance, if any, of such refund shall, to the extent received by Purchaser, be paid to Seller to the extent that any portion thereof is attributable to the period prior to the Closing Date and, to the extent received by Seller, be paid to Purchaser to the extent that any portion thereof is attributable to the period commencing on the Closing Date. Any payment to Seller pursuant to the immediately preceding sentence shall be net of any amount payable to a Tenant in accordance with its Lease (and any payment to Purchaser by Seller pursuant to the immediately preceding sentence shall include (without double counting) any amount payable to a Tenant in accordance with its Lease, and Purchaser shall promptly pay any such amounts received by Purchaser from Seller to the extent owing to such Tenant pursuant to its Lease. Purchaser hereby agrees to indemnify, defend and hold harmless Seller against any claims, losses, costs and expenses incurred by Seller to the extent resulting from Purchaser’s failure to remit such amount payable to such Tenant pursuant to its Lease promptly after receipt thereof from Seller by Purchaser (including, without limitation, any reasonable attorneys’ fees, disbursements and court costs). Purchaser’s indemnification obligations hereunder shall survive the Closing and delivery of the Deed.
E. If there are meters measuring water consumption or sewer usage at the Property (other than meters measuring water consumption or sewer usage for which a Tenant is obligated to pay under its Lease directly to the taxing authority or utility), Seller shall attempt to obtain readings to a date not more than thirty (30) days prior to the Closing Date, and apportionment for water rates and charges and sewer taxes and rents shall be made based on such reading. If such readings are not obtained (and if such readings are obtained, then with respect to any period between such reading and the Closing Date), water rates and charges and sewer taxes and rents, if any, shall be apportioned based upon the last meter readings, subject to reapportionment when readings for the relevant period are obtained after the Closing Date, and the parties shall, within five (5) business days following notice of the determination of such actual reading, make an appropriate payment to the other based upon such recalculation. Charges for all electricity, steam, gas and other utility services (collectively, “Utilities”) shall be billed to Seller’s account up to the Closing Date and, from and after the Closing Date, all Utilities shall be billed to Purchaser’s account. If for any reason such changeover in billing is not practicable as of the Closing Date as to any Utility, such Utility shall be apportioned on the basis of actual current readings (which shall be made no more than thirty (30) days prior to the Closing Date). If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the parties shall, within five (5) business days following notice of the determination of such actual reading, readjust such apportionment and make an appropriate payment to the other based upon such recalculation. If any of the Tenants pay electric charges based on a submeter for their electric consumption, then Seller shall cause any such submeter to be read as close as possible to the Closing Date and upon completion of such reading, Seller shall b▇▇▇ each such Tenant electric charges, tenant direct electrical reimbursementsbased on such reading. At the Closing, HVAC overtime Seller shall provide the Purchaser with documentation as to any such readings and b▇▇▇▇▇▇▇ for submetered electric charges.
F. To the extent that Seller or Purchaser receives Rents after the Closing Date, the same shall be held in trust by Seller or Purchaser, as the case may be, and telephone booth and vending machine revenuesshall be applied in the order of priority set forth in this Section 7(F);.
(i) New Lease Expenses The following terms shall be as provided in Section 10.1.2; and
(j) such defined herein: “Base Rents”: fixed rent, and other items as are customarily apportioned between sellers and purchasers of real properties amounts of a type similar fixed nature (which may include, without limitation, electric inclusion and supplemental water, HVAC and condenser water charges paid or payable by Tenants); “Overage Rents”: a percentage of the Tenant’s business during a specified annual or other period (sometimes referred to the Property as “percentage rent”), so-called “escalation rent”, and located additional rent based upon increases in the State or otherwise attributable to real estate and BID taxes, operating expenses, utility costs, a cost of Florida.living index or p▇▇▇▇▇’▇ wages or otherwise, but which shall in no event include Reimbursable Payments (as hereinafter defined); “Reimbursable Payments”:
Appears in 1 contract
Sources: Sale Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. of on the day immediately preceding the Closing Date (the "ADJUSTMENT DATE"):“Apportionment Date”) on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:
(a) fixed or base rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Seller;
(bi) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and taxes, water rates and charges, vault charges and vault chargestaxes, if anybusiness improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, “Property Taxes”), on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, respective periods for which same have been assessedeach is assessed or imposed, to be apportioned in accordance with Section 7(b);
(cii) charges and payments under Contracts that are being assigned fuel oil, if any, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter from Seller’s fuel supplier shall be conclusive evidence as to the Purchaser pursuant quantity of fuel on hand and the current cost therefor). To aid in such prorations, Seller shall endeavor to obtain meter readings as of a date that is no earlier than thirty (30) days prior to the terms Closing Date, and the unfixed meter charges, based thereon for the intervening time shall be apportioned on the basis of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofsuch last reading;
(diii) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing Permits and annual permit and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are Licenses assigned to the Purchaser at the Closing;
(giv) personal property taxes, if any, on any amounts prepaid or payable by the basis owner of all or a portion of the fiscal year for which assessedProperty under the Contracts assigned to Purchaser at Closing;
(hv) all other revenues from the operation of the Property other than Rents salaries, wages and Additional Rents fringe benefits (including, without limitation, parking chargesvacation pay, tenant direct electrical reimbursementssick pay, HVAC overtime chargeshealth, welfare, pension, disability and telephone booth and vending machine revenuesother benefits) of all Employees (as hereinafter defined);
(ivi) New Lease Expenses as provided in Section 10.1.2all other operating expenses with respect to the Property; and
(jvii) such other items as are customarily apportioned between sellers in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding year to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and purchasers Seller or Purchaser, as the case may be, shall make an appropriate payment to the other within ten (10) business days based on such recalculation. If as of real properties the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date.
(c) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within thirty (30) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of the last available reading. If the apportionment is not based on an actual current reading, then, upon the taking of a type similar subsequent actual reading, the parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.
(d) Charges for all electricity, steam, gas, light, telephone and other utility services at the Premises (each a “Utility” and collectively, “Utilities”) shall be billed to Seller’s account up to the Apportionment Date and, from and after the Apportionment Date, all Utilities shall be billed to Purchaser’s account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(e) Charges payable under Contracts that Seller elects to assume in respect of the billing period of the related service provider in which the Closing Date occurs (the “Current Billing Period”) will be allocated on a per diem basis to Seller, based upon the number of days in the Current Billing Period prior to the Closing Date, and to Purchaser, based upon the number of days in the Current Billing Period on and after the Closing Date, and assuming that all charges are incurred uniformly during the Current Billing Period.
(f) At or prior to the Closing, Seller and Purchaser and/or their respective agents or designees will jointly prepare a preliminary closing statement (the “Preliminary Closing Statement”) which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within six (6) months following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the “Final Closing Statement”) setting forth the final determination of the adjustments and prorations provided for in this Agreement and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid). The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the party obligated therefor within five (5) business days following the approval by both parties of the Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in the Final Closing Statement and except for other amounts payable hereunder pursuant to provisions which survive the Closing. Prior to and following the Closing Date, each party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property during normal business hours upon reasonable advance notice) in order to make the preliminary and located final adjustments and prorations provided for herein.
(g) If any payment to be made after Closing under this Section 7 shall not be paid when due hereunder, the same shall bear interest (which shall be paid together with the applicable payment hereunder) from the date due until so paid at a rate per annum equal to the Prime Rate (as such rate may vary from time to time) as reported in the State Wall Street Journal plus 3% (the “Default Rate”). To the extent a payment provision in this Section 7 or elsewhere in this Agreement does not specify a period for payment, then for purposes hereof such payment shall be due within five (5) business days of Floridathe date such payment obligation is triggered.
(h) The provisions of this Section 7 shall survive the Closing.
Appears in 1 contract
Apportionments. 3.1 The following shall be apportioned between the Seller and the Purchaser at the Closing Closing, as of 11:59 p.m. of the day preceding 12:01 A.M. on the Closing Date (the "ADJUSTMENT DATE"as hereinafter defined):
(aA) fixed or base prepaid rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents (as hereinafter defined) and other amounts paid payable by tenants applicable to periods which expire after the Closing Datetenants, which have been received by Sellerin accordance with Sections 3.3 and 3.4 hereof;
(bB) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and charges and vault charges, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year)years, respectively, for which same have been assessed;
(cC) value of fuel stored on the Properties, at Seller's cost (including any taxes), on the basis of a statement from Seller's supplier;
(D) charges and payments under Contracts (as hereinafter defined) that are being assigned Purchaser elects to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofassume;
(dE) any prepaid items, items for operating expenses relating to the Properties incurred in the normal course of business (including, without limitationbut not limited to, fees for licenses which that are transferred to the Purchaser at the Closing and annual permit and inspection fees);
(eF) utilitiesutilities (including, but not limited to, water, steam, electricity and gas) on the basis of the most recently issued bills therefor, subject to adjustment within sixty (60) days after the extent required by Section 3.4Closing when the next bills are available, or, if current meter readings are available at the Closing, on the basis of such readings;
(fG) transferable deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property Properties, if Purchaser elects to assume the contracts and/or accounts to which said deposits are applicable and the same are assigned to the Purchaser at the Closing, which shall be credited in their entirety to Seller;
(gH) personal property taxes, if any, on the basis of the fiscal year for which assessed;
(hI) Seller's share, if any, of all other revenues from the operation of the Property Properties other than Rents rents and Additional Rents (including, without limitationbut not limited to, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues), if, as and when received;
(iJ) New Lease Expenses as provided in permitted administrative charges, if any, on those tenants' security deposits transferred by Seller pursuant to Section 10.1.211.1(e); and
(jK) as to each Property, such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the such Property and located in the State city and state where the same is located.
3.2 If the Closing shall occur before a new real estate or personal property tax rate is fixed, the apportionment of Floridataxes at the Closing shall be made on the basis of the old tax rate for the preceding fiscal year applied to the latest assessed valuation. Within sixty (60) days after the new tax rate is fixed, the apportionment of taxes shall be recomputed, and any discrepancy resulting from such recomputation shall be promptly corrected and the proper party reimbursed.
3.3 If, on the Closing Date, any tenant is in arrears in the payment of rent (other than Additional Rents for the periods January 1, 1998 to December 31, 1998 and January 1, 1999 to the Closing Date), or has not paid the rent payable by it for the month in which the Closing occurs (whether or not it is in arrears for such month on the Closing Date), any rents received by Purchaser or Seller from such tenant after the Closing shall be applied to rents due and payable by such tenant in the following order of priority:
(A) first, to all rent due and payable by such tenant during the month in which the Closing Date occurred;
(B) second, to all rents due and payable by such tenant for the months immediately following the month in which the Closing Date occurred, to the month in which such payment is received;
(C) third, to all rents due and payable by such tenant for the month immediately preceding the month in which the Closing Date occurred; and
(D) fourth, to all remaining rent arrearages of such tenant. Tenant arrears as of June 23, 1999 are set forth on SCHEDULE 2-A annexed hereto and made a part hereof (to be updated as of the Closing) and, except as otherwise provided in Section 3.4 hereof with respect to Additional Rents (defined below) for the periods January 1, 1998 to December 31, 1998 and January 1, 1999 to the Closing Date, the application of rent monies collected after the Closing shall be governed by the provisions of this Section 3.3. If rents, or any portion thereof, received by Seller or Purchaser after the Closing are due and payable to the other party by reason of the foregoing allocation, the appropriate sum, less a proportionate share of any reasonable attorneys' fees and other costs and expenses incurred in connection with the collection thereof, shall be promptly paid to the other party.
3.4 If, on the Closing Date, pursuant to the 1998 Additional Rent Reconciliation set forth on SCHEDULE 2-B annexed hereto and made a part hereof (to be updated as of the Closing), any tenant is in arrears or was undercharged (whether in its monthly obligations or in an end of year reconciliation) in the payment of percentage rent, escalation charges for real estate taxes, parking charges, operating expenses and maintenance escalation rents or charges, cost-of-living increases, or other charges of a similar nature ("ADDITIONAL RENTS") for the period January 1, 1998 to December 31, 1998, any Additional Rents received by Purchaser or Seller from such tenant after the Closing Date and reasonably identifiable or ascertainable by reference to the 1998 Additional Rent Reconciliation (as updated) shall first be applied (net of all reimbursements to tenants for overpayment of Additional Rent for the period January 1, 1998 to December 31, 1998) to all Additional Rent arrearages of such tenant for the period January 1, 1998 to December 31, 1998 as shown on SCHEDULE 2-B (as updated). With respect to Additional Rents for the period January 1, 1999 to the Closing Date, SCHEDULE 2-C annexed hereto and made a part hereof sets forth monthly (except where otherwise indicated) bill▇▇▇▇ ▇▇ tenants for 1999 based upon estimated expenses. If, on the Closing Date, there are any Additional Rent arrearages for the period January 1, 1999 to the Closing Date (net of all reimbursements to tenants for overpayment of Additional Rent for the period January 1, 1999 to the Closing Date), then, provided first that such tenant is current in all of its rent and Additional Rent obligations for the period commencing with the Closing Date, the next Additional Rents received by Purchaser or Seller from such tenant after the Closing Date shall be applied to all remaining Additional Rent arrearages of such tenant for the period January 1, 1999 to the Closing Date. If Additional Rents or any portion thereof received by Seller or Purchaser after the Closing Date are due and payable to the other party by reason of the foregoing allocation, the appropriate sum, less a proportionate share of any reasonable attorneys' fees and costs and expenses expended in connection with the collection thereof, shall be promptly paid to the other party. "1999 ADDITIONAL RENT RECONCILIATION" means an accounting to be prepared by Purchaser in calendar year 2000 and delivered to Seller by no later than March 31, 2000 to determine if Seller's estimated Additional Rent calculation for calendar year 1999 was greater or less than the actual Additional Rent calculation as determined by Purchaser. Seller and its property manager shall, in good faith, assist Purchaser:
Appears in 1 contract
Apportionments. The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. of the day preceding the Closing Date (the "ADJUSTMENT DATEAdjustment Date"):
(a) fixed or base rents ("RENTSRents") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which begin before but expire after the Closing Date, which have been received by Seller;
(b) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs)assessments, water charges, sewer rents and charges with the Seller to be responsible for any period or portion thereof (calculated on a per diem basis) occurring prior to the Adjustment Date and vault chargesthe Purchaser to be responsible for all of the same relating to any period or portion thereof occurring thereafter, if anyregardless of when billed;
(c) value of prepaid fuel belonging to the Seller stored on the Property, at the Seller's cost, including any taxes, on the basis of a statement from the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessedSeller's suppliers;
(cd) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE Schedule 3 hereto or permitted renewals or replacements thereof;
(de) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(ef) utilities, to the extent required by Section 3.4;
(fg) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(gh) personal property taxes, if any, on the basis of the fiscal year for which assessed;
(hi) all other revenues from the operation of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(ij) New Lease Expenses as provided in Section 10.1.2; and
(jk) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of FloridaDeptford Township, New Jersey.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Dean Witter Realty Yield Plus L P)
Apportionments. The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. of the day preceding the Closing Date (the "ADJUSTMENT DATEAdjustment Date"):
(a) fixed or base rents ("RENTSRents") which have been prepaid, security deposits referred to in Section 8(e9(e), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Seller;
(b) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and charges and vault sewer charges, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, for which same have been assessed;
(c) value of prepaid fuel belonging to the Seller stored on the Property, at the Seller's cost, including any taxes, on the basis of a statement from the Seller's suppliers;
(d) charges and payments under Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE Schedule 3 hereto or permitted renewals or replacements thereof;
(de) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(ef) utilities, to the extent required by Section 3.4;
(fg) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(gh) personal property taxes, if any, on the basis of the fiscal year for which assessed;
(hi) all other revenues from the operation of the Property other than Rents and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);
(ij) New Lease Expenses as provided in Section 10.1.211.1.2; and
(jk) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property and located in the State of FloridaWashington.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Witter Dean Realty Income Partnership Ii Lp)
Apportionments. The following shall be apportioned between Lessee and Lessor with respect to the Seller and the Purchaser at the Closing Premises as of 11:59 p.m. P.M. on the day immediately preceding the date of the day preceding the Closing Date expiration or earlier termination of this Lease (other than termination for any default by Lessee) (the "ADJUSTMENT DATEApportionment Date"):), and the net amount thereof shall be paid by Lessor to Lessee or by Lessee to Lessor, as the case may be, within ten (10) days after the Apportionment Date, to the extent practicable, subject to reapportionment from time to time within six (6) months after the Apportionment Date to the extent that any amount to be apportioned hereunder cannot reasonably be determined on the Apportionment Date:
(a) fixed or base rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(e), Rents for the month in which the Closing occurs real property taxes and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Seller;
(b) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occursor installments thereof), water charges, sewer rents and charges and vault charges, if any, on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, year for which same have been assessedpayable;
(b) water rates and charges, except those required to be paid directly by tenants in occupancy of portions of the Premises to the entity imposing same;
(c) charges sewer taxes and payments under Contracts that are being assigned rents, except those required to be paid directly by tenants in occupancy of portions of the Premises to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofentity imposing same;
(d) any prepaid itemsannual permit, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit license and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are assigned to the Purchaser at the Closing;
(g) personal property taxes, if any, on the basis of the fiscal year for which assessedlevied, if the rights with respect thereto are transferable to Lessor;
(e) fuel, if any, at the cost per gallon or cubic foot most recently charged to Lessee, based on the supplier's measurements thereof, plus sales taxes thereon;
(f) deposits on account with any utility company servicing the Premises, to the extent transferred to Lessor;
(g) fixed, escalation and other rent of tenants in occupancy of the Premises, if, as, and when collected (the "Sublease Rents"
(h) all other revenues from amounts deposited with the operation holder of the Property other than Rents any Fee Mortgage or any Leasehold Mortgagee for escrows of real estate taxes and Additional Rents (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues);insurance premiums; and
(i) New Lease Expenses as provided in Section 10.1.2; and
(j) such all other items as are customarily apportioned between sellers and purchasers of real in connection with similar properties of a type similar to the Property and located in the State of Floridasimilarly located.
Appears in 1 contract
Sources: Master Lease Agreement (Steinway Musical Instruments Inc)
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing as of 11:59 p.m. midnight of the day preceding the Closing Date (the "ADJUSTMENT DATE"):Date:
(ai) amounts payable by tenants (including fixed or base rents, percentage rents, additional rents ("RENTS") which have been prepaid, security deposits referred to in Section 8(eand tax and operating expense escalation and pass-throughs), Rents for the month in which the Closing occurs if, as and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Sellerwhen received;
(bii) all ad valorem, real estate taxes, special assessments and school taxes (but only any installment relating to no matter how levied or denominated) (based upon the period in which the Adjustment Date occursmaximum discounted rate), water charges, sewer rents and charges and vault charges, if any, and any other taxes in the nature thereof on the basis of the fiscal years (or applicable billing period if other than a fiscal year)years, respectively, for which same have been assessed, but excluding any tangible or personal property taxes due on any personal property not being transferred pursuant to this Agreement;
(ciii) charges and payments under transferable Contracts that are being assigned to the Purchaser pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofthereof which are transferred to Purchaser;
(div) any prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(ev) utilities, including, without limitation, telephone, steam, electricity and gas, on the basis of the most recently issued bills therefor, subject to adjustment after the extent required by Section 3.4Closing when the next bills are available, or if current meter readings are available, on the basis of such readings;
(fvi) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property Premises if same are assigned to the Purchaser at the Closing, which shall be credited in their entirety to Seller;
(gvii) personal property taxes, if any, on the basis of the fiscal year for which assessed;
(hviii) all other revenues from the operation of the Property Premises other than Rents and Additional Rents rents of whatever kind or nature (including, without limitation, parking charges, tenant direct electrical reimbursements, HVAC overtime charges, and telephone booth and vending machine revenues), if, as and when received;
(iix) New Lease Expenses as provided in Section 10.1.2taxes which are payable and which relate to operations of the Premises, including, without limitation, business and occupancy taxes and sales tax, if any; and
(jx) such other items as are customarily apportioned between sellers and purchasers of real properties of a type similar to the Property Premises and located in the City of Jacksonville, County of ▇▇▇▇▇ and State of Florida. Notwithstanding anything else contained herein, there shall be no apportionment for Seller's insurance because the Purchaser will not be assuming the same at the Closing and Seller shall have the right to cancel the same at the Closing.
(b) If the Closing shall occur before a new real estate or personal property tax rate is fixed or tax bill is issued, the apportionment of taxes at the Closing shall be upon the basis of the old tax rate or tax bill for the preceding tax fiscal year applied to the latest assessed valuation. Promptly after the new tax rate is fixed or tax bill is issued, the apportionment of taxes shall be recomputed and any discrepancy resulting from such recomputation and any errors or omissions in computing apportionments at Closing shall be promptly corrected and the proper party reimbursed, which obligations shall survive the Closing in accordance with Section 3(d). All such tax prorations shall be made based upon the tax which would be due assuming that the maximum discounted tax rate is employed.
(c) If there is a water meter on the Premises, Seller shall furnish a reading on the Closing Date, and the unfixed water charges and sewer rent, if any, based thereon for the intervening time shall be apportioned on the basis of such last reading.
(d) If any of the items subject to apportionment under the foregoing provisions of this Section 3 cannot be apportioned at the Closing because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in computing apportionments at the Closing are discovered subsequent to the Closing, 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 period of three hundred sixty-five (365) days after the Closing Date as hereinafter provided. Neither party hereto shall have the right to require a recomputation of a Closing apportionment or a correction of an error or omission in a Closing apportionment unless within the aforestated three hundred sixty-five (365) 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 good faith recomputation of the apportionment and copies of all substantiating information used in such recomputation. The failure of a party to obtain any previously unavailable information or discover an error or omission with respect to an item subject to apportionment hereunder and to give notice thereof as provided above within three hundred sixty-five (365) days after the Closing 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. Notwithstanding any of the foregoing provisions of this Section 3(d) to the contrary, Purchaser and Seller agree that the three hundred sixty-five (365) day limitation set forth in this Section 3(d) shall not apply to the parties' obligations under Section 3(b) and that such obligations shall survive the Closing forever.
(e) If, on the Closing Date, the Premises or any part thereof shall be affected by any governmental assessment or assessments (whether payable in a lump sum or payable in installments), then Seller shall be obligated to pay on or before the Closing such lump sum payment(s) or all installments of any such assessment(s).
(f) Seller shall have the responsibility to remit sales tax owing on all leases of the Premises for the periods prior to Closing except for amounts actually collected by Purchaser after Closing.
(g) Within ninety (90) days after the Closing, Seller shall provide to Seller a receipt from the Florida Department of Revenue showing that all sales taxes due in connection with the leases of the Premises for the periods prior to Closing have been paid in full or a certificate from the Florida Department of Revenue stating that no taxes, interest or penalties are due in connection with the leases of the Premises for the periods prior to Closing.
(h) Purchaser shall have the responsibility to remit sales tax owing on all leases of the Premises for the periods including and after Closing except for amounts actually collected by Seller after the Closing.
(i) There shall be no apportionment for the contract which is the subject of the Notice of Commencement which is listed as a Permitted Encumbrance. Rather Seller shall remain responsible for this contract in full because it relates to the Seller's business operations in the premises it occupies rather than to the Premises as a whole.
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between the Seller and the Purchaser at the Closing Purchaser, on an Individual Premises-by-Individual Premises basis, as of 11:59 p.m. of on the day immediately preceding the Closing Date with respect to each Individual Premises (each, an “Apportionment Date”) on the "ADJUSTMENT DATE"):basis of the actual number of days of the month which shall have elapsed as of such Closing Date and based upon the actual number of days in the month and a 365 day year:
(ai) subject to Section 7(b) below, prepaid rents, fixed or base rents and additional rents payable pursuant to the Leases ("RENTS"including, without limitation, operating expense escalation payments, real estate tax escalation payments and percentage rent, if any, payable under the Leases) which have been prepaid(collectively, security deposits referred to in Section 8(e“Rents”), Rents for the month in which the Closing occurs and Additional Rents and other amounts paid by tenants applicable to periods which expire after the Closing Date, which have been received by Seller;
(bii) real estate taxes, special assessments (but only any installment relating to the period in which the Adjustment Date occurs), water charges, sewer rents and taxes, water rates and charges, vault charges and vault chargestaxes, if anybusiness improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, “Property Taxes”), on the basis of the fiscal years (or applicable billing period if other than a fiscal year), respectively, respective periods for which same have been assessedeach is assessed or imposed, to be apportioned in accordance with Section 7(c) below;
(ciii) charges and payments administrative charges, if any, permitted under Contracts that are being assigned to the Purchaser Leases or applicable law, on security deposits held pursuant to the terms of this Agreement and listed on SCHEDULE 3 hereto or permitted renewals or replacements thereofLeases;
(div) fuel, if any, as estimated by Seller’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter from Seller’s fuel supplier dated no later than three (3) business days prior to the Closing shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor);
(v) prepaid items, including, without limitation, fees for licenses which are transferred to the Purchaser at the Closing and annual permit and inspection fees;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any other persons or entities who supply goods or services in connection with the Property if same are permits assigned to the Purchaser at the Closing;
(gvi) personal property taxes, if any, on any amounts prepaid or payable by any Seller under the basis Contracts that Purchaser is otherwise obligated to assume as of the fiscal year for which assessedClosing Date in accordance with the terms hereof;
(hvii) all other revenues from the operation of the Property other than Rents wages and Additional Rents fringe benefits (including, without limitation, parking chargesvacation pay, tenant direct electrical reimbursementssick days, HVAC overtime chargeshealth, welfare, pension and telephone booth disability benefits) and vending machine revenuesother compensation payable to all Employees (it being understood, however, that Purchaser shall not be liable for any portion of any withdrawal liability assessed in connection with or related to events occurring prior to the Closing Date);
(iviii) New Lease Expenses as provided in Section 10.1.2interest payable on the Existing Loans; and
(jix) such other items as are customarily apportioned between sellers in real estate closings of commercial properties in The City of New York, State of New York.
(i) Monthly base rents (collectively, “Base Rents”) under the Leases shall be adjusted and purchasers prorated on an if, as and when collected basis. Base Rents collected by or on behalf of real properties Purchaser (or any Subsidiary Owner) or Seller after the Closing Date from tenants who owe Base Rents for periods prior to the Closing Date, shall be applied, (A) first to all rents due and payable by the tenant in question for the calendar month in which the Closing occurs, then (B) to all rents due and payable by such tenant for the calendar months following the month in which the Closing occurs, then (C) to all delinquent rents due and payable by such tenant for the calendar months preceding the calendar month in which the Closing occurs. Each such amount, less reasonable collection costs, shall be adjusted and prorated as provided above, and the party receiving such amount shall, within five (5) business days, pay to the other party the portion thereof to which it is so entitled.
(ii) Purchaser, after the Closing, shall cause the Subsidiary Owners to ▇▇▇▇ tenants owing Base Rents for periods prior to the Closing Date, on a monthly basis and use commercially reasonable efforts to collect such past due Base Rents; provided, that the Subsidiary Owners shall have no obligation to commence any actions or proceedings to collect any such past due Base Rents or terminate any Lease. Purchaser shall provide or cause to be provided to Seller monthly reports setting forth the status of such collection efforts. In addition to the foregoing, Seller may take all steps it deems appropriate, including litigation, to collect Base Rents delinquent as of the Closing Date which are still uncollected; provided, that Seller may not cause any Lease to be terminated. Any such amounts that Seller collects after the Closing shall be applied by Seller as provided in Section 7(b)(i) hereof.
(iii) With respect to any Lease that provides for the payment of additional or escalation rent based upon (A) a percentage of a type similar tenant’s gross sales during a specified annual or other period or (B) increases in real estate taxes, operating expenses, labor costs, cost of living indices or ▇▇▇▇▇▇’▇ wages (collectively, “Overage Rent”), such Overage Rent shall be adjusted and prorated on an if, as and when collected basis as set forth below.
(iv) Purchaser, after the Closing, shall cause the Subsidiary Owners to (A) promptly render bills for any Overage Rent payable for any accounting period that expired prior to the Property Closing Date or an accounting period in which the Closing Date occurs, but which is to be paid after the Closing Date or an accounting period in which the Closing Date occurs; (B) ▇▇▇▇ tenants for such Overage Rent attributable to an accounting period that expired prior to the Closing Date, on a monthly basis; and located (C) use commercially reasonable efforts in the State collection of Floridasuch Overage Rent; provided, that the Subsidiary Owners shall have no obligation to commence any actions or proceedings to collect any such Overage Rents or terminate any Lease. In addition to the foregoing, Seller shall have the right to pursue tenants to collect such delinquencies (including, without limitation, the prosecution of one or more lawsuits) which, if collected, shall be applied as provided herein; provided, that Seller may not cause any Lease to be terminated. Seller shall furnish to Purchaser all information relating to the period prior to the Closing Date necessary for the billing of such Overage Rent, and Purchaser shall to deliver to Seller, concurrently with delivery to tenants, copies of all statements relating to Overage Rent for any period prior to the Closing Date. Purchaser, after the Closing, shall cause the Subsidiary Owners to ▇▇▇▇ tenants for Overage Rents for accounting periods prior to the Closing Date and accounting periods in which the Closing Date occurs in accordance with and on the basis of such information furnished by Seller.
(v) Subject to the terms of this Section 7(b)(v), Overage Rent payable for the accounting period in which the Closing Date occurs shall be apportioned between Seller and Purchaser based upon the ratio that the number of days in such accounting period prior to the Closing Date bears to the number of days in the entire such accounting period. If, prior to the Closing Date, Seller receives any installments of Overage Rent attributable to Overage Rent for periods from and after the Closing Date, such sums (less reasonable collection costs) shall be apportioned on the Closing Date. If Purchaser or any Subsidiary Owner receives any installments of Overage Rent attributable to Overage Rent for an accounting period ending prior to the Closing Date or Seller’s proportionate share of Overage Rent attributable to an accounting period in which the Closing Date occurs, such sums (less reasonable collection costs actually incurred by Purchaser or such Subsidiary Owner shall be paid to Seller within five (5) business days after Purchaser or such Subsidiary Owner receives payment thereof. If, after the Closing Date, Seller receives any installments of Overage Rent attributable to Overage Rent for Purchaser’s proportionate share of Overage Rent attributable to an accounting period in which the Closing Date occurs, or an accounting period commencing on or after the Closing Date, such sums (less reasonable collection costs actually incurred by Seller) shall be paid to Purchaser within five (5) business days after Seller receives payment thereof.
(vi) Any payment by tenants of Overage Rent shall be applied to Overage Rents then due and payable in the following order of priority: (A) first, in payment of Overage Rents by the applicable tenant for the accounting period in which the Closing Date occurs (subject to apportionment pursuant to this Section 7); (B) second, in payment of Overage Rents by such tenant for the period preceding the accounting period in which the Closing Date occurs; and (C) third, in payment of Overage Rents by such tenant for the accounting period following the one in which the Closing Date occurs.
(vii) To the extent any portion of Overage Rent is required to be paid monthly or in other periodic installments by tenants on account of estimated amounts for the current period, and at the end of each calendar year (or, if applicable, at the end of each lease year or tax year or any other applicable accounting period), such estimated amounts are to be recalculated based upon the actual expenses, taxes and other relevant factors for that calendar (lease or tax) year, with the appropriate adjustments being made with such tenants, then such portion of the Overage Rent shall be prorated between Seller and Purchaser on the Closing Date based on such estimated payments (i.e., with (x) Seller entitled to retain all monthly installments of such amounts with respect to periods prior to the calendar month in which the Closing Date occurs, to the extent such amounts are as of the Closing Date estimated to equal the amounts ultimately due to Seller for such periods, (y) Purchaser entitled to receive all monthly installments of such amounts with respect to periods following the calendar month in which the Closing Date occurs, and (z) Seller and Purchaser apportioning all monthly installments of such amounts with respect to the calendar month in which the Closing Date occurs). At the time(s) of final calculation and collection from (or refund to) tenants of the amounts in reconciliation of actual Overage Rent for a period for which estimated amounts have been prorated, there shall be a re-proration between Seller and Purchaser, with the net credit resulting from such re-proration, after accounting for amounts required to be refunded to tenants, being payable to the appropriate party (i.e., to Seller if the recalculated amounts exceed the estimated amounts and to Purchaser if the recalculated amounts are less than the estimated amounts).
(viii) To the extent that any amounts are paid or payable to Seller by a tenant under a Lease in advance of the period to which such expense applies, whether as a one time payment or in installments (e.g., for real property tax escalations), such amounts shall be apportioned as provided above but based upon the period for which such payments were or are being made.
(ix) To the extent tenants pay items of Rent which are not Base Rents or Overage Rents, such as charges for electricity, steam, water, cleaning, overtime services, sundry charges or other charges of a similar nature (collectively, “Additional Rent”), such rent shall be applied based on the period covered by such Additional Rent charge (i.e., the period the applicable work, utility or service was provided). If (x) Seller or Purchaser or any Subsidiary Owner receives a payment from a tenant for Additional Rent, and (y) such tenant does not specify the time period or the particular charge to which such payment relates, then the Additional Rent shall be applied in the following order of priority: (A) first, for the period in which the Closing Date occurred (subject to apportionment pursuant to this Section 7); (B) second, for the period or periods preceding the period in which the Closing Date occurred; and (C) third, for the most recent period or periods after the Closing Date such work, utility or service was provided. In the case of any Additional Rent payable for a period that expired prior to the Closing Date, but which is to be paid after the Closing Date, Purchaser shall pay the entire amount thereof to Seller within five (5) business days after receipt thereof, less any reasonable collection costs actually incurred. Purchaser, after the Closing, shall cause the Subsidiary Owners to (A) promptly render bills for any Additional Rent payable for any period that expired prior to the Closing Date, but which is to be paid after the Closing Date; (B) ▇▇▇▇ tenants for such Additional Rent attributable to a period that expired prior to the Closing Date, on a monthly basis, and (C) use commercially reasonable efforts in the collection of such Additional Rent; provided, that the Subsidiary Owners shall have no obligation to commence any actions or proceedings to collect any such Additional Rent or terminate any Lease. In addition to the foregoing, Seller shall have the right to pursue tenants to collect such delinquencies due for the period prior to the Closing Date (including, without limitation, the prosecution of one or more lawsuits) which, if collected, shall be applied as provided herein; provided, that Seller may not cause any Lease to be terminated. Seller shall furnish to Purchaser all information relating to the period prior to the Closing Date necessary for the billing of such Additional Rent, and Purchaser shall cause the Subsidiary Owners to deliver to Seller, concurrently with delivery to tenants, copies of all statements relating to Additional Rent for any period prior to the Closing Date. Purchaser shall cause the Subsidiary Owners to ▇▇▇▇ tenants for Additional Rent relating to periods prior to the Closing Date in accordance with and on the basis of such information furnished by Seller. Additional Rent payable for the period in which the Closing Date occurs shall be apportioned between Seller and Purchaser based upon the same method used to apportion the underlying expense being billed to such tenant, or if such expense is not being apportioned, then based upon the ratio that the portion of such accounting period prior to the Closing Date bears to the entire such accounting period.
(x) To the extent any payment received from a tenant after Closing does not indicate whether the payment is for an item of Base Rent, Overage Rent or Additional Rent, and the same cannot be clearly determined from the context of such payment, then such payment will be applied (x) first, to payment of any Base Rent then due or delinquent, in accordance with Sections 7(b)(i) and 7(b)(ii) above, (y) second, to payment of any Additional Rent then due or delinquent, in accordance with Section 7(b)(ix) above and (z) third to any Overage Rent then due or delinquent, in accordance with Sections 7(b)(iii)-7(b)(viii) above.
(c) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed. If the Closing Date shall occur before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding year to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller or Purchaser shall make an appropriate payment to the other within five (5) business days based on such recalculation. If as of the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within thirty (30) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purcha
Appears in 1 contract
Sources: Purchase and Sale Agreement (Boston Properties Inc)