Closing Adjustments. (a) Closing adjustments shall be made as of 12:00:01 A.M. on the day of the Closing Date (the “Adjustment Date”). (b) Seller shall be entitled to all revenues from the Property relating to the period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities. (c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c): (i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto. (ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller. (iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date. (iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing. (v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date. (d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxes. (e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Clarion Partners Property Trust Inc.)
Closing Adjustments. (a) Closing adjustments The following shall be made as of 12:00:01 A.M. apportioned on the day Closing Statement against sums due Seller at Closing:
A. All taxes and any installment of any special and other assessments which have become a lien and are due and payable upon the Premises prior to the Closing Date (the “Adjustment Date”).
(b) Seller shall be entitled paid by Seller and proof of such payment shall be given to all revenues from the Property relating to the period Purchaser prior to or at the Adjustment DateClosing, and Buyer or, at Seller's option, credit shall be entitled given to all such revenues relating to Purchaser therefor. Current real property taxes shall be prorated as though paid in advance on the period from and after due date basis of the Adjustment Date. taxing authority on the basis of 365 day year; Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating taxes up to the Property arising or accruing prior to date of Closing and Purchaser shall be responsible for taxes on the Adjustment Date. day of Closing and thereafter.
B. All tenant security deposits, and other deposits of whatever nature and kind whatsoever, shall be assumed by Purchaser with credit therefor against sums due at Closing and after the execution date hereof, Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all not apply any security deposits to delinquent rentals without a court order or judgment granting Seller such expenses, obligations and liabilitiesright.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date C. Current rents shall be apportioned between such respective portions prorated and adjusted as of the period in question according to date of Closing based upon the actual number of days in eachthe month of Closing, so that Seller will receive with Purchaser being credited for rents on the portion day of such revenues, Closing and bear the portion of such expenses, apportioned to the period before the Adjustment Date, thereafter and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer all prepaid rents and chargesSeller shall deliver all checks received by Seller which have not been deposited. In no event shall Purchaser be charged with any past due rentals and Seller's rights to receive all past due rentals shall be assigned and transferred to Purchaser at Closing. Seller shall have no surviving rights after Closing to collect past due rentals from tenants.
D. Seller shall pay all state, utility fees county and chargeslocal real estate conveyance, stamp and all other fees, similar taxes and charges relating any transfer taxes due upon Closing or required to or payable in connection with the use, occupancy, maintenance, ownership and operation be paid upon recording of the PropertyCovenant Deed.
E. Seller shall pay for any transfer tax on conveyance or title transfer of any manufactured homes, installment sales contracts/mortgages, vehicles or other personal property included in this sale, including any sales tax with respect to such personal property.
F. Any payments received by Seller with respect to any existing laundry contracts, telecommunications, or cable agreements which extend to periods after Closing, shall be adjusted prorated between Purchaser and prorated on Seller, based upon the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis remaining term of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined belowagreement(s), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by with Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive providing Purchaser with a credit for deposits made by amounts allocable to the remaining term after Closing against sums due Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer G. Seller shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date pay all outstanding bills of utility companies and service providers with respect to the use Premises through the day prior to the date of the Property after the Closing DateClosing.
(d) H. Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on pay the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable commissions due to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable "Broker" as defined in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxesSection 15 hereof.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Purchase and Sale Agreement
Closing Adjustments. (a) Closing adjustments Except as otherwise herein provided, the following items shall be made paid, prorated and/or adjusted as of 12:00:01 A.M. the close of business on the day of prior to the Closing Date (the “Adjustment "Proration Date”"), as follows:
9.1 All real estate taxes and all personal property taxes accruing with respect to the period ending on, but inclusive of, the Proration Date, and all penalties and interest thereon, and all certified and other special assessments affecting the Properties shall be paid in full by Seller (or credited to Purchaser) at Closing; provided, however, that, if any such certified and special assessments shall be pending or payable in installments, Seller only shall be responsible for paying the portion of such assessments accruing with respect to the period ending on, but inclusive of, the Proration Date.
(b) 9.2 Current real estate and personal property taxes shall be prorated as of the Proration Date, on an "accrual" basis in accordance with the standard closing practice of the county in which the Property, with respect to which such item shall relate, is located. The parties hereby further do agree to re-prorate such real estate taxes promptly upon Purchaser's receipt of the actual tax bill for the tax year in questio▇. ▇n no event shall Seller be charged with or be responsible for any increase in such taxes resulting from the sale of the Interests or improvements made to the Properties after the Closing. Seller shall be entitled to all revenues from retain the Property relating full amount of any tax refund received by Purchaser or Seller after the Closing and attributable to the a period prior to the Adjustment Closing, if such refund shall not be owed to Tenants pursuant to any leases. Purchaser promptly shall deliver the full amount of such tax refund to Seller, if the same shall have been received by Purchaser. The foregoing shall not be merged into this Agreement and shall survive the Closing.
9.3 Any non-cash security deposits shall be assigned (and all consents necessary to effectuate such assignment shall have been obtained) to Purchaser at the Closing, and Seller reasonably shall cooperate with Purchaser to change the named beneficiary under such security deposits, if, on the Proration Date, such deposits are not to be in the name of Purchaser or Aero SeaTac, as the case may be, all at Seller's sole cost and Buyer expense). In the event that as of a Closing, Seller has not obtained all necessary consents or otherwise effectuated the assignment of any non-cash security deposits with respect to any Properties acquired by Purchaser at such Closing, Seller shall use diligent commercially reasonable efforts to obtain such consents and cause such assignment to occur promptly after the Closing at Seller's expense. In addition, with respect to any such non-cash security deposits for which a consent has not been obtained or which has not been assigned as of the applicable Closing, if a tenant defaults under its lease and the landlord would have the right to apply any such non-cash security deposit, then Seller shall, upon Purchaser's written request, draw down on such non-cash security deposit and immediately deliver the proceeds therefrom to Purchaser and Purchaser agrees to indemnify, defend and hold Seller harmless against any Losses arising out of any claims by the applicable tenant arising as a result of the drawing down of such non-cash security deposit.
9.4 All of the following will be credited to Purchaser as of the Proration Date: (a) prepaid rent and rent paid for the balance of the month of the Closing, (b) cash security deposits made by Tenants, along with all interest thereon that shall be entitled due to all such revenues relating Tenants, but not including interest earned thereon that shall belong to Seller or Aero SeaTac, if any, received by Seller or Aero SeaTac, as the case may be, prior to the Proration Date, (c) except as provided in Paragraph 6.6(b), the amount of any Landlord Obligations remaining unpaid as of (or with respect to rent abatements, the amount applicable to the period from occurring after) the applicable Closing, and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all (d) utility costs, operating expenses, insurance costs, personal property expenses and real estate tax expenses (collectively, "Expense Contributions") that shall have been prepaid by Tenants. Any payment of rental obligations and liabilities relating to or Expense Contributions due, but not received, on the Property arising or accruing prior to the Adjustment Proration Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expensesTenants, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions as well as any unbilled Expense Contributions accrued as of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date "Credit Items"), shall be identified paid by Purchaser to Seller as and when such amounts are collected from the applicable Tenants and after Purchaser is made current on all rental obligations and Expense Contributions due and payable following the Closing. Following the Closing Date, if Seller or Aero SeaTac shall receive any payments from any Tenant, all such payments, other than Credit Items, promptly shall be remitted to Purchaser, and Seller shall take all steps as reasonably shall be necessary to notify the remitting party that all future payments should be sent to Purchaser. Seller shall cooperate with Purchaser in writing on the Certified Rent Roll (as defined below)its efforts to collect Credit Items, but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same required to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated take any direct action against any Tenant for such period promptly after receipt thereof by Buyer or Seller.
purpose (iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternativelythat, Seller shall be entitled to request sue a return Tenant or take any other a▇▇▇ons to collect any Credit Items due to Seller (and not previously paid to Seller) so long as such suit or other action does not seek a termination of said such Tenant's Lease or eviction of such Tenant). When actual Expense Contributions shall have become known, Purchaser shall bill each Tenant, pursuant to it▇ ▇▇ase, for the additional amount, if any, owed by such Tenant as a result of non-payment or underpayment of such Tenant's share of Expense Contributions. Upon the collection of such amounts, the same shall be prorated between Seller and Purchaser based on each such Tenant's share of the amount of the applicable Expense Contribution incurred by each party and the collections from each of such Tenants of such Expense Contributions by each party, through and including the Proration Date. The amount of any refund or credit due to any Tenant as a result of collection by Seller or Aero SeaTac prior to the Closing Date of payments by any Tenant for Expense Contributions, which shall exceed the actual amount of such Expense Contributions owed by such Tenant for the period prior to the Closing Date, shall be paid by Seller to Purchaser promptly after such Expense Contributions shall have been determined.
9.5 Seller shall (and Seller shall cause Aero SeaTac to) pay all expenses necessary to repair, operate and maintain the Properties, as the case may be, in accordance with the ordinary course of its business up to the Proration Date, any such expenses which are prepaid by Seller (to the extent attributable to the period after the Proration Date) as of the Proration Date shall be credited to Seller and/or Aero SeaTac, as the case may be, and Purchaser and/or an Approved Assignee shall be responsible to pay such expenses incurred subsequent to the Proration Date.
9.6 Meters for utility services payable by Seller or Aero SeaTac, as the case may be, shall be read on or immediately prior to the Proration Date, or as close to the Closing as shall be possible, if a reading on the day prior to the Closing cannot be obtained, and the amounts due, as disclosed by such readings, shall be paid by Seller or credited to Purchaser. Otherwise, all utility charges and billings shall be prorated using ▇▇▇ ▇▇▇l for the calendar month imme▇▇▇▇ely preceding the Proration Date. Any security or service deposits from delivered by the vendors Companies or Aero SeaTac to utility companiesproviders, and any interest required to be paid thereon, shall be and remain the sole property of Seller, and any refund of such security deposits shall be made directly to Seller, except to the extent such deposits shall have been assigned to Purchaser and/or the Approved Assignee(s) by Seller, in which event it case, Purchaser shall be debited and Seller shall be credited the amount of such assigned deposits.
9.7 Seller shall bear and pay (a) the charges to comply with the terms of Paragraph 3.1, (b) additional title insurance premiums charged in connection with issuance to a Lender of any loan policy(ies) of title insurance (and endorsements thereto), (c) all fees, costs and/or expenses, including, without limitation, mortgage recording taxes, if applicable, imposed in connection with, as applicable, the (i) written consent of each Lender and each Ground Lessor, as the case may be, to the relevant transactions contemplated hereby, (ii) assumption of the Assumed Loans, the Loan Guarantees, the Ground Leases and/or the Ground Lease Guarantees, and/or (iii) release of all of the Loan Guarantors from all of the Loan Guarantees and/or all of the Ground Lease Guarantors from all of the Ground Lease Guarantees, all as contemplated hereby, including, without limitation, all assignment and/or assumption fees charged by any Lender or Ground Lessor or EDC.
9.8 Purchaser shall bear and pay all costs and expenses incurred in connection with (a) the Investigations, including, without limitation, the preparation of any Phase I, (b) any Updated Survey and/or the issuance to any lender, other than a Lender, of any loan policy(ies) of title insurance (and endorsements thereto).
9.9 Except as otherwise herein provided, each party shall be responsible for, and shall bear, any and all costs and expenses incurred by either of them or their respective employees, agents and/or representatives in connection with the transactions contemplated hereby, including, without limitation, those of their respective attorneys, accountants and consultants, which obligations shall not receive merge into this Agreement and shall survive the Closing or the termination of this Agreement, as applicable.
9.10 All costs relating directly to any escrow and/or closing services provided in connection with the transactions contemplated hereby shall be divided equally between the parties. Any and all (a) premiums for the Title Policies and the title update charges in connection therewith, (b) state, county and local transfer, documentary and/or stamp taxes imposed regarding the transactions contemplated hereby, (c) recording fees and (d) other items that are customarily prorated in transactions similar to the transactions contemplated hereby, but have not been herein addressed, will be prorated as of the Proration Date in accordance with the standard closing practice of the county in which the Property, with respect to which such item shall relate, is located as such standard closing practice is set forth in the Side Letter Agreement.
9.11 Any non-delinquent bonds that relate to items other than real estate taxes, that, as of the Closing Date, shall be a credit current lien against any of the Properties shall be prorated as of the Closing Date.
9.12 All adjustments made pursuant to this Article 9 shall be paid in cash or credited against the cash portion of the Purchase Price at the Closing. All adjustments made pursuant to this Article 9 shall be made on the basis of a 365 day year and, to the extent reasonably practicable, such prorations shall be made at the Closing. To the extent any such prorations cannot be made at the Closing, the same shall be adjusted and completed after the Closing as and when complete information shall become available. Seller and Purchaser each agrees to cooperate and use its commercially reasonable efforts to complete such prorations no later than thirty (30) days after the Closing Date. Seller and Purchaser each shall use its commercially reasonable efforts prior to the Closing to prepare a schedule of prorations that shall cover current monthly rent, prepaid rent, security deposits, utility charges, operating expenses, if applicable, and real property taxes, so that such prorations can be made at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior 9.13 Subject to the Closing Date with respect provisions of Paragraph 12.9, each party hereby agrees to the use of the Property after the Closing Date.
(d) Seller shall be responsible for all incomedefend, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and forever hold Buyer harmless the other, from and against all liability from Taxes attributable any Losses that such other party shall sustain by reason of the failure of the indemnifying party to pay the Pre-Closing Period. If Buyer receives amounts it shall be required to pay or to take the actions it is required to take on a refundtimely basis, credit or reduction of Taxes attributable in whole or in part pursuant to the Pre-Closing Periodthis Article 9, Buyer which indemnifications, defenses and hold harmless agreements shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxes.
(e) The provisions of not be merged into this Section 5 Agreement and shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Sale Agreement (Amb Property Lp)
Closing Adjustments. (a) Closing adjustments The following shall be made apportioned against sums due Seller at Closing:
A. All payments received by Seller from the Tenant for fixed rent shall be prorated as of 12:00:01 A.M. on the day of the Closing Date with Purchaser receiving the fixed rent payable with respect to the day of Closing and for all periods thereafter and all payments received by Seller from the Tenant, for additional rental items such as real estate taxes, utilities, maintenance and operating expenses, insurance and similar reimbursements, expenses, escalation payments and prepaid expense items allocable to lease periods (under the “Adjustment Date”)Lease) extending to periods after the Closing, shall be prorated as of the Closing with Purchaser receiving a credit for the amount payable for the day of Closing and thereafter, shall be allocated and distributed to Purchaser together with an accounting therefor or at Purchaser's option credited to Purchaser at the Closing. In the event that the Tenant pays additional rental items such as real estate taxes, maintenance and operating expenses and insurance on an estimated basis, then, prior to Closing, Seller shall complete a reconciliation of all such expenses and shall provide Purchaser with a credit at Closing for any amounts which Purchaser may be obligated to refund to the Tenant. In no event shall Purchaser be charged with any past due rentals, which, if collected by Purchaser, shall be remitted to Seller only after all current rents and other charges have been satisfied, and less Purchaser's reasonable costs of collection, including attorney's fees. Seller shall have no surviving rights after Closing to collect from the Tenant any past due amounts. Should any current charges or ▇▇▇▇▇▇▇▇ to or for utilities, including electricity, sewer and water charges that are payable in arrears, be unknown at the Closing, such charges shall be estimated and prorated as of the Closing, with Purchaser receiving a credit from Seller, based upon the last available invoices or billing therefor.
(b) B. All real and personal property taxes and special assessments of whatever nature and kind which have become due and payable or are delinquent as of the date of Closing shall be paid and discharged by Seller and reimbursed by Tenant in the manner consistent with the Lease. To the extent not paid directly by the Tenant, all taxes for periods prior to Closing which have not yet been paid and are not yet due and payable as of the date of Closing shall become the responsibility of the Purchaser to provide the tax statements to Tenant and receive full reimbursement for all taxes paid from Tenant in the manner consistent with the Lease. In the event Seller is owed any taxes for periods prior to Closing and which are to be paid for by Tenant pursuant to the Lease, then, Purchaser shall not be required to provide Seller with a credit at Closing; provided, however, at such time as Purchaser has received such amounts from the Tenant under the Lease, it shall remit such amounts to Seller and in no event shall Purchaser be responsible for payment to Seller of any amount of real estate taxes under this Section 9.B. Seller shall be entitled provide evidence of all tax payments and statements to all revenues from Purchaser for the Property relating to the period prior to the Adjustment previous three (3) years within five (5) days of Effective Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. .
C. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating operating expenses related to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date Subject Premises prior to the Closing Date through the Adjustment Date Date, which shall be apportioned on paid in full prior to Closing and Seller shall provide Purchaser with reasonable evidence that all such operating expenses including all outstanding bills of utility companies and service providers have been paid in full for the basis of such last reading, but shall be reapportioned according time period prior to actual charges promptly after the first reading following the Closing Date. Unmetered water charges Purchaser shall be apportioned on the basis of the charges therefor responsible for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted all such expenses on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when Date and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Sellerthereafter.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) D. Seller shall be responsible for payment of all income, franchise and other taxes imposed on Seller, or its income, or on amounts due under all reciprocal easement agreements for the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before time period prior to the Adjustment Date (the “Pre-Closing Period”)Date. Buyer Purchaser shall be responsible for all Taxes imposed such amounts on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Closing Date (the “Post-Closing Period”). and thereafter.
E. All tenant security deposits, if any, shall be assumed by Purchaser with credit therefor against sums due at Closing.
F. Seller shall indemnify pay all state, county, city and hold Buyer harmless from other real estate conveyance, tangible, intangible, stamp and against all liability from Taxes attributable similar taxes and any other transfer taxes due upon Closing or required to be paid upon recording of the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Special Warranty Deed.
G. Purchaser and Seller shall promptly reimburse Buyer for such portion of such refundsplit, credit or reduction of taxeson a fifty/fifty (50/50) basis, any escrow fees/closing fees charged by the Escrow Agent.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Purchase Agreement (Aei Income & Growth Fund Xxii LTD Partnership)
Closing Adjustments. (a) Closing adjustments The following items affecting the Property shall be made apportioned, adjusted or otherwise accounted for between Seller and Buyer as of 12:00:01 A.M. on the day of the Closing Date (the “Adjustment Date”).
(b) Seller shall be entitled to all revenues from the Property relating to the period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c)::
(i) Personal property taxesSubject to paragraph (d) of this Section, real property taxesrent, water and sewer rents and chargesadditional rent, utility fees and charges, common area maintenance and all other fees, taxes and charges relating payable by Seller as tenant under the Leases as follows:
(1) any charge payable on a monthly basis which is subject to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, year end adjustment shall be adjusted prorated for the month in which the Closing Date shall occur and prorated on the basis of the fiscal any year for which assessedend adjustment thereof shall be paid by, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period refund from the last reading date lessor paid to, Seller and Buyer in proportion to their respective payments thereof (i.e., Seller to make all such payments prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of and Buyer to make all such last reading, but shall be reapportioned according to actual charges promptly payments after the first reading following the Closing Date. Unmetered water charges ), and (2) Impositions under the Leases not payable monthly but payable in full after the Closing at the end of a lease year or tax fiscal year, as provided in the respective Leases, shall be apportioned on the basis prorated as of the charges therefor for Closing Date but Seller will pay Buyer its share thereof within 15 days after Buyer furnishes Seller the same period in the preceding calendar year, but applying the current rate thereto.billing and substantiation thereof received from each respective lessor;
(ii) All rents Payments owing by Seller under the Leases to merchants' associations or similar business promotion organizations;
(including base rents, percentage rents, common area maintenance charges iii) Buyer shall pay Seller on the Closing Date for any security deposits (and other charges payable any interest prescribed by any Tenant to Seller statute) held by lessors under the Leases, if anyand the Seller's pett▇ ▇▇▇h at each theatre;
(iv) Reduced admission tickets, group tickets or so-called other "discount tickets" (collectively, the “Rents”collectively "Discount Tickets") that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on issued by Seller prior to the Closing Date. Buyer shall remit Date and presented by customers for admission to the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and Theatres on or after the Closing Date shall be deemed honored by Buyer but may be redeemed by Buyer from Seller for the amount shown on the Discount Ticket as the cost paid to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated Seller for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”)Ticket. Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly also reimburse Buyer for such portion in the amount of such refund, credit or reduction of taxes.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).any gift certificates issued by Seller prior to the
Appears in 1 contract
Closing Adjustments. 7.1 The closing of the transaction provided for in this Agreement (athe "Closing") Closing adjustments shall be made take place as soon as practicable after each of 12:00:01 A.M. on the day conditions set forth in Section 8 have been fulfilled or waived in accordance herewith (the actual date of the Closing being referred to herein as the "Closing Date"); provided, however, that in no event shall the Closing Date (be subsequent to July 15, 1997. In the “Adjustment Date”)event that the Closing Date does not occur on or prior to July 15, 1997, this Agreement shall automatically be deemed terminated and neither party shall have any further liabilities or obligations hereunder except that each party shall be responsible for paying their own expenses, including legal fees and Assignee shall pay the cost of the ALTA Survey and the Phase I environmental study.
7.2 The parties hereto agree that (bi) Seller shall be entitled all compensation payable to the County under the Lease and all revenues from the Property other operating expenses of Assignor relating to the Lease (i.e., cost of goods sold, advertising, collections, fees, hired services, insurance, miscellaneous expenses, postage, repairs and maintenance, supplies, taxes, utilities, wages and interest on indebtedness, but specifically not including professional fees and expenses, travel and lodging or depreciation), and (ii) all income of Assignor, including accounts receivable, shall be apportioned between Assignor and Assignee as of the Effective Date based on the portion of each such expense or revenue attributable to the period falling before the Effective Date on the one hand, which Assignor shall bear the responsibility and benefit of, and the portion of each such expense or revenue attributable to the period falling on or after the Effective Date, on the other hand, which Assignee shall bear the responsibility and benefit of (the "Adjustment"). The net Adjustment will be paid by the party owing the same to the other in cash or by certified or official bank check or wire transfer. The expenses and liabilities for which Assignor shall be liable pursuant to this Section shall be included within the meaning of the term "Retained Liabilities".
7.3 To the extent that any of the prorations made pursuant to this Article are based upon estimates of payments to be made and/or expenses to be incurred by Assignee subsequent to the Closing Date, or either party discovers any errors in or omissions in respect of the Adjustment, Assignor and Assignee agree to adjust such prorations promptly upon receipt by Assignor or Assignee, as the case may be, of such payments or of bills or other documentation setting forth the actual amount of such expenses.
7.4 The Assignor hereby agrees that any and all property taxes which become due and owing on the Premises or Property and which relate to a period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Effective Date shall be apportioned between such respective portions of the period in question according upon notice by Assignee to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the PropertyAssignor, shall be adjusted paid promptly by Assignor.
7.5 Assignor and prorated on the basis of the fiscal year for which assessed, Assignee shall maintain and make available to each other any books or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges records necessary for the period from the last reading date prior adjustment of any item pursuant to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Datethis Article. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxes.
(e) The provisions of this Section 5 Article shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Assignment and Assumption of Lease (Family Golf Centers Inc)
Closing Adjustments. (a) Closing The following adjustments shall be made at Closing, subject to the provisions of the FSI Sublease:
4.5.1 All real estate taxes applicable to any of the Real Property due and payable in the year of Closing, together with all special assessments payable therewith, shall be prorated between Seller and Purchaser on a daily basis as of 12:00:01 A.M. May 1, 2005 based upon a calendar fiscal year, with Seller paying those allocable to the period prior to May 1, 2005, and Purchaser being responsible for those allocable for the period from and after May 1, 2005. Purchaser shall receive a credit from Seller at closing for the estimated amount of real estate taxes due for the period prior to May 1, 2005. Such calculation shall be made on the day basis of the prior year’s taxes and shall be deemed final as between Seller and Purchaser. Notwithstanding the foregoing, Seller shall be responsible for any supplemental taxes assessed on or after the Closing Date (the “Adjustment Date”).
(b) Seller shall be entitled to all revenues from the Property relating back to the period prior to the Adjustment Closing Date. The provision described in the immediately preceding sentence shall survive the Closing.
4.5.2 Personal property taxes, if any, applicable to any of the Personal Property and Buyer Excluded Personal Property due and payable in the year of Closing shall be entitled to all such revenues relating prorated between Seller and Purchaser on a daily basis as of the Closing Date based upon a calendar fiscal year, with Seller paying those allocable to the period from prior to the Closing Date and after Purchaser being responsible for those allocable to the Adjustment DateClosing Date and thereafter. Seller shall be responsible for personal property taxes, if any, applicable to any personal property retained by Seller.
4.5.3 Purchaser shall assume all special assessments (and charges in the payment nature of or in lieu of such assessments) levied, pending or constituting a lien with respect to any of the Real Property as of the Closing Date.
4.5.4 Seller shall pay all sales tax due regarding this transaction, if any.
4.5.5 Seller shall pay all state deed tax regarding the deed to be delivered by Seller to Purchaser. Purchaser shall pay any mortgage registry tax regarding any mortgage given by Purchaser on the Real Property in connection with this transaction.
4.5.6 Seller shall pay the cost of recording all documents, including the deed to be delivered by Seller to Purchaser.
4.5.7 Purchaser shall pay all service charges for and discharge costs of the Commitment.
4.5.8 Purchaser shall pay all premiums required for any owner’s or mortgagee’s title insurance policy issued in connection with this transaction.
4.5.9 Seller shall pay any Closing fee payable to Title Company with respect to the transaction contemplated by this Agreement.
4.5.10 All utility expenses, obligations including water, fuel, gas, electricity, telephone, sewer, trash removal, heat and liabilities other services furnished to or provided for the Property, and all other operating costs of the Property (including, without limitation, dues payable to the Association and all dues or associations fees attributable to any declarations of covenants, conditions and restrictions or similar agreements that run with the land relating to the Property arising to which Seller is a party or accruing prior by which Seller or the Property or any portion thereof may be bound), shall be paid by Seller, pursuant to the Adjustment Date. provisions of the FSI Sublease.
4.5.11 Except as provided in Section 13, Seller and Purchaser shall each pay their own attorneys’ fees incurred in connection with this transaction.
4.5.12 At Closing, (i) Seller shall pay to Seller’s Broker a fee equal to One Hundred Forty-Nine Thousand Three Hundred Fifty No/100 Dollars ($149,350.00); (ii) Seller shall pay to Purchaser’s Broker a fee equal to Two Hundred Seventeen Thousand No/100 Dollars ($217,000.00); and discharge and defend(iii) Purchaser shall pay to Purchaser’s Broker a fee equal to Twenty-Nine Thousand Two Hundred Fifty No/100 Dollars ($29,250.00). If any of the amounts allocated under this Section 4.5 cannot be calculated with complete precision at Closing because the amount or amounts of one or more items included in such calculation are not then known, indemnify and hold harmless Buyer from and against all then such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date calculation shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated made on the basis of the fiscal year for which assessedreasonable estimates of Seller and Purchaser, subject to prompt adjustment (by additional payment or refund, as necessary) when the fiscal period covered by amount of any such item or items become known (the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior foregoing covenant to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at survive the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxes.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Closing Adjustments. (a) Closing adjustments Except as otherwise set forth hereafter, if the transaction contemplated by this Agreement shall be made consummated, the following items shall be paid, prorated or adjusted as of 12:00:01 A.M. the close of business on the day of prior to the Closing Date (the “Adjustment Proration Date”).) in the manner hereinafter set forth:
(b) Seller shall be entitled to 10.1 Real estate and all revenues from personal property taxes due and owing as of the Property relating to the period prior to the Adjustment Proration Date, and Buyer all penalties and interest thereon and special assessments affecting the Property, will be paid in full by Seller.
10.2 Current real estate taxes and personal property taxes shall be entitled prorated as of the Proration Date, without regard to all such revenues relating when said taxes would be payable in relation to the tax year of the applicable taxing authority, so that the portion of the current taxes allocable to the period from and after the Adjustment beginning of such tax year, through the Proration Date. Seller , shall be responsible for credited to Purchaser, and the payment and discharge portion of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are current taxes allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenuestax year, and bear from the portion Proration Date to the end of such expensestax year, apportioned shall be the responsibility of Purchaser. If the amount of the current taxes shall not then be ascertainable, the adjustment thereof shall be predicated upon one hundred five percent (105%) of the most recent ascertainable taxes. Seller and Purchaser hereby further do agree as to the period before proration for real estate taxes, to re-prorate said real estate taxes promptly upon Purchaser’s receipt of the Adjustment Date, and Buyer will receive and bear actual tax b▇▇▇ for the balance of each relating relevant tax year. Notwithstanding anything contained herein to the period from contrary, in no event shall Purchaser be liable for any taxes levied with respect to buildings or improvements not on the Land. In addition, Purchaser shall have the exclusive right to file, prosecute and/or appeal a tax complaint for the year in which the Proration Date shall occur, all prior years and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and chargesall subsequent years, and all refunds and other feessums due by reason of such tax complaint and/or appeal (collectively, “Refunds”) shall be the property of, and any and all costs associated therewith shall be payable by, the party that shall be responsible, whether pursuant to this Agreement and/or the Lease, for the relevant taxes payable as to the Property and attributable to the year to which such Refunds, if any, shall be applied. Seller hereby assigns to Purchaser all rights that Seller and S▇▇▇▇▇, respectively, may have to file a tax complaint or appeal for such years. Along those lines, promptly after the Effective Date, Purchaser shall initiate the process of appealing the current assessed valuation of the Property.
10.3 Seller shall bear and pay the premium for the Title Policy, the charges relating to or payable comply with the terms of Paragraph 4.1, the cost of the Survey, subject to the remaining terms and conditions hereof, all state, county and local transfer, documentary and stamp taxes on the sale contemplated hereby, all release and recording fees and the ACM Remediation Credit.
10.4 Purchaser shall bear and pay any title examination fees and additional premiums charged in connection with issuance of any loan policy of title insurance (and endorsements thereto), as well as the costs of Purchaser’s due diligence investigation, tests and reports as to the Property, including, without limitation, all costs associated with obtaining any environmental assessments of the Property.
10.5 Except as otherwise expressly set forth herein, each party shall bear, pay and be responsible for any and all costs and expenses incurred by such party and/or its respective employees, agents and representatives in connection with the usesubject transaction, occupancyincluding, maintenancewithout limitation, ownership those of their respective attorneys and operation accountants.
10.6 All other items that customarily would be prorated in connection with transactions similar to the subject transaction, and which have not been addressed herein, will be prorated as of the PropertyProration Date in accordance with standard C▇▇▇ County, Illinois closing practices.
10.7 All adjustments made pursuant to this Article 10 shall be paid in cash or credited against the cash portion of the Purchase Price at the Closing. All adjustments made pursuant to this Article 10 shall be made on the basis of a thirty (30) day month and, to the extent reasonably practicable, such prorations shall be made at the Closing. To the extent any such prorations cannot be made at the Closing, the same shall be adjusted and prorated on completed after the basis of Closing as and when complete information shall become available. Seller and Purchaser agree to cooperate and use their commercially reasonable efforts to complete such prorations no later than thirty (30) days after the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading thereforClosing Date. Metered utility charges for the period from the last reading date Seller and Purchaser shall use their commercially reasonable efforts prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis prepare a schedule of the charges therefor for the same period items to be prorated in the preceding calendar yearaccordance with this Article 10, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof so that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall prorations can be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit made at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxes.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Closing Adjustments. The prorations and adjustments described in this Section 5.1 (collectively the “Closing Adjustments”) shall be made between Buyer and Seller at Closing.
(a) All city, state and county ad valorem taxes and similar impositions levied or imposed upon or assessed against the Property (the “Taxes”) for the year in which Closing adjustments occurs shall be made prorated as of 12:00:01 A.M. midnight the day before the Closing Date. In the event the Taxes are not determinable at the time of Closing, the Taxes shall be prorated on (i) the latest available tax rate and assessed valuation, and (ii) any supplemental assessment, if obtainable prior to Closing (the “Estimated Taxes”). Seller shall pay all certified assessment liens imposed on the day Property at Closing. In the event any of the Taxes are delinquent at the time of Closing, Seller shall pay same at Closing. If any taxes are imposed because of a change in the use of the Property prior to Closing (e.g., farm use or rollback taxes), Seller shall be responsible for and shall pay at Closing such taxes on the Property, if any, relating solely to the period prior to Closing. If the Property has not been assessed on a completed basis but will be assessed on a completed basis for the tax year in which the Closing occurs, the parties shall complete the proration based on the most recent ascertainable assessed values and tax rates, but shall adjust said proration at such time as actual rates and valuation become available once the Property has been assessed on a completed basis for the year of Closing and the overcompensated party shall compensate the under compensated party within thirty (30) days thereafter. It is the parties’ intent and agreement that, ultimately, each party shall be responsible and liable for any Taxes (as well as assessments) which relate to the period during which such party owned the Property; i.e., as between the parties, Seller shall be responsible and liable for Taxes and assessments which relate to any period prior to the Closing Date (and Buyer shall be responsible and liable for Taxes and assessments which relate to the “Adjustment Date”)period commencing on the Closing Date and continuing thereafter, and each party’s obligations and liabilities in this regard shall survive the Closing.
(bi) All operating expenses, utility charges and reimbursement for utility charges accrued through 12:00 a.m. immediately prior to the Closing Date for the Property (including, without limitation, telephone, water, storm and sanitary sewer, electricity, gas, garbage and waste removal) (to the extent not paid or payable by tenants under Leases) shall be prorated as of midnight the day before the Closing Date, transfer fees required with respect to any such utility shall be paid by or charged to Buyer, and Seller shall be entitled to all revenues claim from the applicable utility company any deposits held on account for Seller.
(ii) Recoveries from the utility expense reimbursements payable by tenants of the Property relating to the extent collected by Seller (or a third party service provider) shall be prorated at Closing based upon, and shall relate back to, the months in which the billed expenses were incurred. Buyer acknowledges that utility charges are billed to the tenants of the Property in arrears, and that any b▇▇▇▇▇▇▇ allocable to the period prior to the Adjustment Date, and Buyer Closing Date shall be entitled paid to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilitieswhen received.
(c) Revenues and expenses that are allocable to a period of time falling in part on or beforeAll paid rents, and in part after, together with any other sums paid by tenants under the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the PropertyLeases, shall be adjusted and prorated on as of midnight the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following day before the Closing Date. Unmetered water charges shall be apportioned on In the basis event that, at the time of Closing, there are any past due or delinquent rents or other sums owing by any tenants of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) Property (collectively, the “RentsDelinquent Rent”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit to Seller its pro-rata share thereof, to the appropriate portion extent, and only to the extent, that the aggregate rents received by Buyer from each such tenant owing Delinquent Rent exceed the sum of (A) the same to Seller, as, when aggregate rents and if received other sums then due and payable by such tenant for periods from and after the Closing Date, provided that all Rents received and (B) any reasonable and necessary amounts expended by Buyer to collect such Delinquent Rent. Buyer shall use its good faith efforts to collect any such amounts due to Seller from tenants in occupancy at the Real Property under the Leases but Buyer shall have no obligation to file suit against any of such tenants. Buyer shall have the exclusive right to collect any sums due Seller from tenants in occupancy at the Real Property under the Leases, and after Seller may not disturb the possession of such tenants by bringing any action to evict them or collect rent. Seller hereby retains the right to pursue any tenant no longer in occupancy as of the Closing Date at the Real Property under the Leases for any sums due Seller for periods attributable to Seller’s ownership of the Real Property. In the event that, after Closing, Seller receives any payments of rent or other sums due from tenants under Leases, Seller shall be deemed promptly forward such payments to represent Rents most recently due and payable, Buyer for Buyer’s disbursement in inverse order accordance with this Section 51(c). The provisions of arrearage. Rents paid this Section 5.1(c) shall survive the Closing for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Sellerof three (3) months.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(vd) Buyer shall receive a credit against the Purchase Price in the amount of all security, pet, cleaning and/or other tenant deposits paid by tenants under Leases, and interest accrued thereon, contingently payable to such tenants for any depositwhose account they are maintained, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) and Seller shall be responsible for retain such funds free and clear of any and all income, franchise and other taxes imposed on Seller, or its income, or claims on the Property (“Taxes”) for all taxable periods or portions part of taxable periodstenants under Leases. After Closing, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on maintaining as security, pet, cleaning and/or other tenant deposits, as applicable, the Property or Buyer’s income for all taxable periods or portions aggregate amount so credited to Buyer in accordance with the provisions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxesLeases relevant thereto.
(e) The provisions Buyer shall receive a credit against the Purchase Price in the amount of this Section 5 all prepaid rent under the Leases. Seller shall survive the closing pay all sales taxes due for income paid on or before Closing.
(f) All amounts payable under any of the sale Service Agreements shall be prorated as of midnight the day before the Closing Date, excluding, however, any signing bonuses, incentive payments and/or other upfront money or fees received by the Seller under any Service, the parties agreeing that any such fees shall be deemed fully earned by, and property of, the Seller.
(g) Seller is a party that certain Reimbursement Agreement with Forest Hill Associates (“Forest Hill”), pursuant to which Forest Hill is required to reimburse Seller for a share of the costs of the construction of a public road along the eastern boundary of the Property hereunder running from Winchester Road to tie in with the existing Crestwyn Hills Road that presently runs to Forest Hill-I▇▇▇▇ Road. Forest Hill’s reimbursement obligations are secured by a deed of trust in favor of Seller. Seller shall retain the right to receive the reimbursement payment from Forest Hill and retain all right, title, and interest in and to the Reimbursement Agreement and deed of trust. Seller represents that as of Closing, Seller has performed all of its obligations under the Reimbursement Agreement.
(h) All other continuing items of paid expense and collected income regarding the “Closing”)operation and ownership of the Property shall be prorated as of midnight the day before the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Trade Street Residential, Inc.)
Closing Adjustments. (a) Closing adjustments Seller and Buyer shall be made as each pay one half of 12:00:01 A.M. on all state, county and local transfer taxes, if any, occasioned by the day conveyance of the Closing Date (Premises and the “Adjustment Date”)transactions contemplated herein and the parties shall each execute and deliver any tax form, return or affidavit required in connection with the payment of such transfer taxes or the application for an exemption therefrom.
(b) Seller All real estate taxes due and payable for the calendar or fiscal year, as the case may be, in which the Closing takes place allocable or imposed upon the Premises shall be entitled to all revenues from the Property relating to the period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilitiespayable by Seller.
(c) Revenues and expenses that are Seller shall pay all additional or “roll-back” taxes allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear Closing Date imposed against the balance of each relating Premises pursuant to the period from Farmland and after Forest Rollback Act and the Adjustment Date. Without limiting Open Space Rollback Act which are assessed or imposed against the generality of this paragraph (c):
(i) Personal property taxesPremises, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to whether before or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order as a result of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof any agreement entered into by Buyer Seller or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, predecessor in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Datetitle.
(d) Seller If on the Effective Date, the Premises or any part thereof shall be responsible for all incomeor shall have been affected by an assessment or assessments which are or may become payable in annual installments, franchise and other taxes imposed on Sellerof which the first installment is then a charge or lien, or its incomehas been paid, or on then for the Property (“Taxes”) for purposes of this Agreement all taxable periods or portions the unpaid installments of taxable periodsany such assessment, ending before including those which are to become due and payable after the Adjustment Date (the “Pre-Closing Period”). Buyer Date, shall be responsible for all Taxes imposed on deemed to be due and payable and to be liens upon the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller Premises affected thereby and shall indemnify be paid and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxesdischarged by Seller.
(e) Buyer shall pay all premiums and charges of the Title Company for the Title Policy (including endorsements other than endorsements required to remove Title Objections which Seller has agreed to remove at Closing) to be issued pursuant to the Commitment, all recording and filing charges in connection with the Deed, one-half (1/2) of any escrow or closing charges (exclusive of any escrow charges under the Lease which, pursuant to Section 6(f), shall be born solely by Landlord), all costs of Buyer’s due diligence, and any other costs customarily paid by the buyer pursuant to local practice.
(f) Each party hereto shall pay its own attorneys.
(g) Any credit due to Buyer pursuant to this Section 7 shall be applied as a credit against the Purchase Price. Any credit due to Seller pursuant to this Section 7 shall be paid to Seller in addition to, and together with, the payment of the Purchase Price at Closing. The provisions of this Section 5 7 shall survive the closing Closing or the termination of the sale of the Property hereunder (the “Closing”)this Agreement.
Appears in 1 contract
Sources: Agreement to Sell and Purchase Real Estate (Kulicke & Soffa Industries Inc)
Closing Adjustments. 6.1. The following are to be prorated or adjusted (aas appropriate), if feasible, at the Closing, as of 11:59 P.M. on the day immediately preceding the Closing (the "Adjustment Date"):
6.1.1. All collected rent and other collected income (and any applicable state or local tax on rent) under Leases in effect on the Closing adjustments Date shall be prorated. Seller shall be charged with any rent and other income collected by Seller before Closing but applicable to any period of time after Closing. Uncollected rent and other income shall not be prorated. Purchaser shall apply rent and other income from tenants that are collected after the Closing first to the obligations then owing to Purchaser for its period of ownership and to costs of collection, remitting the balance, if any, to Seller. Any prepaid rents for the period following the Closing Date shall be paid over by Seller to Purchaser. Purchaser will make reasonable efforts, without suit, to collect any rents applicable to the period before the Closing Date. Seller may pursue collection against tenants as to any rent not collected by Purchaser within 6 months following the Closing Date provided that Seller shall have no right to pursue collection efforts against any tenant while in occupancy of an apartment at the Property. In the event that any tenant pays its rent via an ACH or other automatic debit system, Seller shall cancel such automatic payments at Closing; provided, however, in the event that an automatic rent payment is erroneously forwarded to Seller after Closing, Seller, shall remit such payment to Purchaser in accordance with Section 6.2. For purposes of this Section 6.1.1, the term "rents" excludes any application fees, administrative fees, non-refundable deposits, late fees or other charges. One final adjustment shall be made on or about the 90th day following Closing and this adjustment shall be final.
6.1.2. Real estate taxes and assessments (“Taxes”), including penalties and interest, shall be prorated as follows: Seller shall pay all Taxes which became due and payable prior to the Closing and a prorata share of 12:00:01 A.M. the Taxes becoming due and payable after the Closing based on the day Taxes which are a lien for the year of the Closing, even if such Taxes and assessments are not yet due and payable. If bills for real estate taxes have not been issued as of the Closing Date (Date, and if the “amount of real estate taxes for the then current tax year is not then known, the apportionment of real estate taxes shall be made at Closing on the basis of the full value of the prior year’s real estate taxes and adjusted after Closing pursuant to Section 6.2 hereof. Seller’s protest of the 2013 Taxes has been resolved and Seller shall pay, on or before Closing, the balance of any amounts due for the 2013 real estate tax liability for the Property.
6.1.3. Tax and utility company deposits, if any, and if assignable and assigned.
6.1.4. Electric, gas, water and sewer charges on the basis of the most recent bills available, but if there are meters on the Property, Seller, to the extent the same is obtainable, shall furnish a reading effective as of the Adjustment Date”).
(b) Seller shall be entitled , or if not so obtainable, to all revenues from the Property relating to the period a date not more than 30 days prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible unfixed meter charges based thereon for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a intervening period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading. Upon the taking of a subsequent actual reading, but such apportionment shall be reapportioned according readjusted and Seller or Purchaser, as the case may be, will promptly deliver to actual charges promptly after the first other the amount determined to be so due upon such readjustment. If Seller is unable to furnish such prior reading, any reading following subsequent to the Closing Date. Unmetered water charges shall will be apportioned on a per diem basis from the basis date of such reading immediately prior thereto and Seller shall pay the proportionate charges due up to the date of Closing.
6.1.5. Amounts paid or payable in respect of any Contracts assigned to Purchaser pursuant to the "▇▇▇▇ of Sale and Assignment" (as such term is defined in Section 8.1.2 hereof).
6.1.6. Purchaser shall receive a credit against the cash portion of the charges therefor for the same period Purchase Price in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges an amount equal to all Tenant security deposits and other charges payable accrued interest required to be held by any Tenant to Seller as landlord under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel6.1.7. All other normal and customarily proratable items including without limitation operating expenses, personal property taxes, prepaid license fees, pre-paid “door fees”, if any, that has been purchased by and other charges for licenses and permits for the Real Property which will remain in effect for Purchaser’s benefit after Closing, shall be apportioned pro rata between Seller and Purchaser on a per diem basis based upon a calendar year.
6.1.8. Not more than forty eight (48) hours prior to Closing (“Walk Though Date”), a representative of Purchaser and a representative of Seller shall be adjusted and prorated conduct an onsite walk-through of the then unoccupied rental units on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier Property to determine whether such unoccupied rental units are in “rent ready” condition. With respect to any rental unit that is vacated on or about before five (5) Business Days prior to Closing that Seller has not placed in a “rent ready” condition before the Adjustment Walk Through Date.
(iv) Seller , Purchaser shall receive a credit against the Purchase Price at Closing in the amount of $750 per unit. As used herein, “‘rent ready’ condition” shall mean ready for deposits made by Seller occupancy, equipped, repaired, and cleaned in accordance with utility companies, provided reasonable proof that such deposits are then being held has been provided to BuyerSeller’s normal operating practices. Alternatively, Seller Nothing contained in this Section 6.1.8 shall be entitled to request a return construed as limiting Purchaser’s rights and Seller’s obligations under the other provisions of said deposits from this Agreement. Except as set forth in this Agreement, the vendors or utility companies, customs of the county in which event it the Property is located shall not receive such a credit at govern prorations. The provisions of Section 6.1 and 6.2 shall survive the Closing.
(v) Buyer shall receive a credit 6.2. If final prorations cannot be made at Closing for any deposititem being prorated under Section 6.1, prepaid rent then Purchaser and Seller agree to allocate such items on a fair and equitable basis as soon as invoices or other payments bills are available, with final adjustment to be made to Seller by any Tenant prior as soon as reasonably possible after the Closing, but no later than 90 days after the Closing (except that taxes will be reprorated within 30 days after each party receives a final, non-appealable tax ▇▇▇▇ and without regard to the Closing Date foregoing 90 day period), to the effect that income and expenses are received and paid by the parties on an accrual basis with respect to their period of ownership. Payments in connection with the use of the Property after the Closing Date.
(d) Seller final adjustment shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions due within 30 days of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”)written notice. Seller shall indemnify have reasonable access to, and hold Buyer harmless from the right to inspect and against all liability from Taxes attributable audit, Purchaser’s books to confirm the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxesfinal prorations.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Agreement of Sale and Purchase (Resource Real Estate Opportunity REIT, Inc.)
Closing Adjustments. (a) Closing adjustments shall be made as of 12:00:01 A.M. on the day of the Closing Date (the “Adjustment Date”).
(b) Seller shall be entitled to all revenues from the Property relating to the period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for all real estate taxes and annual installments of special assessments against the payment Premises for all tax years preceding the year in which Closing is held and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge the same and defend, indemnify certified and hold harmless Buyer from pending liens at or before settlement. All real estates taxes and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period annual installments of time falling special assessments for the current tax year in part on or before, and in part after, the Adjustment Date which Closing is held shall be apportioned between such respective portions the parties as of the period in question according to the number date of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated Closing on the basis of the fiscal year for which assessedof the respective taxing authorities. All municipal and Commonwealth transfer taxes shall be divided equally between Buyer and Seller. Seller shall pay as of midnight of the day immediately preceding the closing date, or the fiscal period covered by the appropriate invoiceall costs of fuel, ▇▇▇▇ or statementwater and sewer, or based gas, electricity, telephone and all other public utilities. If there are meters on the most recently available meter reading therefor. Metered utility charges for Premises measuring the period from the last reading date consumption of water, gas or electricity or other utilities, Seller shall, not more than two (2) days prior to the Closing Date through closing date, cause such meters to be read, and shall properly pay all utility bills for which the Adjustment Date shall be apportioned on Seller is liable upon receipt of statements therefore. In the basis of event any such last readingmeters are not read, or bills are not timely provided, or bills are provided but shall be reapportioned according to actual charges promptly after are incorrect and are later corrected by the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar yearrespective utility company, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) Seller shall be responsible for all incomeamounts which are due for the period ending as of midnight of the day immediately preceding the closing date, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed amounts which are due for the period from and after midnight of the day immediately preceding closing and each party shall immediately pay the amounts for which it is responsible and shall indemnify the other party as to such amounts. This obligation to pay and indemnify shall survive closing. In the event any item to be prorated hereunder is not known with certainty as of Closing the proration shall be made based on a mutually agreeable estimate, and the Property or Buyer’s income for all taxable periods or portions parties will make a further adjustment and payment when the actual number is known. In the event of taxable periods beginning on any error in any proration at Closing discovered by either party and made known to the Adjustment Date other party within six (6) months following Closing, the “Post-Closing Period”)parties will make a further adjustment and payment to correct such error. FIRE OR CASUALTY TO BUILDING The Seller shall maintain, until Closing, to the extent such insurance is reasonably available, those insurance policies relating to the Premises which Seller presently holds. Seller shall indemnify maintain the Premises until Closing in substantially the condition the same was as of September 30, 2000, reasonable wear and hold Buyer harmless from tear and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit damage by fire or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxescasualty excepted.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Agreement of Sale (Cott Corp /Cn/)
Closing Adjustments. (a) The prorations and adjustments described in this Section 9 (collectively the “Closing adjustments Adjustments”) shall be made as of 12:00:01 A.M. on the day of the between Buyer and Seller at Closing Date (the “Adjustment Date”)or thereafter in accordance with Section 9(b) hereof.
(b) Seller shall be entitled to all revenues from the Property relating to the period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxesAll city, real property taxes, water state and sewer rents and charges, utility fees and charges, and all other fees, county ad valorem taxes and charges relating to similar impositions levied or payable imposed upon or assessed against the Property (the “Taxes”) for the year in connection with the use, occupancy, maintenance, ownership and operation of the Property, which Closing occurs shall be adjusted and prorated as of midnight the day before the Closing Date. In the event the Taxes are not determinable at the time of Closing, the Taxes shall be prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, 2007 Tax ▇▇▇▇ or statement, or based on (the most recently available meter reading therefor“Estimated Taxes”). Metered utility charges for In the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis event any of the charges therefor for Taxes are delinquent at the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as time of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. AlternativelyClosing, Seller shall pay same at Closing. If the Taxes are not paid at Closing, Seller shall deliver to Buyer the bills for the Taxes promptly upon receipt thereof and Buyer shall thereupon be entitled to request a return responsible for the payment in full of said deposits from the vendors or utility companiesTaxes within the time fixed for payment thereof and before the same shall become delinquent. Notwithstanding the foregoing, in which the event it actual Taxes for 2008 exceed the Estimated Taxes for 2008 (the “Tax Excess”) or Estimated Taxes for 2008 exceed the actual Taxes for 2008 (the “Tax Refund”), Seller and Buyer shall not receive prorate and pay such a credit at the Closing.Tax Excess or such Tax Refund as follows:
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(dA) Seller shall be responsible for all incomea portion of the Tax Excess or shall receive credit for the Tax Refund prorated from January 1, franchise and other taxes imposed on Seller, or its income, or on 2008 through midnight of the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before day prior to the Adjustment Closing Date (the “Pre-Closing Period”)based upon a 365 day calendar year. Buyer shall be responsible for all Taxes imposed on notify Seller of any Tax Excess or Tax Refund. The notification shall include a calculation of the Property amount due to Buyer from Seller in the case of a Tax Excess or Buyer’s income for all taxable periods or portions the amount due to Seller from Buyer in the case of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”)a Tax Refund. Seller shall indemnify have thirty (30) days from Seller’s receipt of such notification to pay its portion of the Tax Excess to Buyer and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the have thirty (30) days from Buyer’s delivery of such notification to Seller for such to pay Seller its portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxesTax Refund.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Closing Adjustments. (a) Closing The following adjustments shall be made at the Closing:
(i) Taxes and assessments as set forth in Section 9 of 12:00:01 A.M. on the day of the Closing Date (the “Adjustment Date”)this Contract.
(bii) Seller shall be entitled to all A proration of the collected rents (including, without limitation, payments or reimbursements for operating expenses, common area costs, insurance and real estate and personal property taxes), vending machine revenues from the Property relating to the period prior to the Adjustment Date(if any), utilities, and Buyer shall be entitled to all such revenues relating to the period from other income and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities operating expenses relating to the Property arising or accruing prior shall be made between Seller and Buyer as of the Closing Date, with Seller being responsible for the expenses and entitled to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on revenues accrued or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned applicable to the period before the Adjustment Closing Date, and Buyer will receive being responsible for the expenses and bear entitled to the balance of each relating revenues accrued or applicable to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(diii) Seller If at any time any of the amounts to be apportioned under this Section 10 C hereof cannot be calculated with complete precision because the amount or amounts of one or more items included in such calculation are not then known, such calculations shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or made on the Property (“Taxes”) for all taxable periods basis of a reasonable estimate by Seller and Buyer of the amount or portions amounts of taxable periodsthe item or items in question, ending before based upon the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable previous amounts paid therefore with respect to the Pre-Property, if any; provided, however, the real estate tax proration shall not be adjusted after the Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part Date to account for any difference between the Pre-Closing Period, Buyer shall promptly reimburse 2004 real estate taxes and the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of 2005 real estate taxes.
(eiv) With respect to any rents (including without limitation reimbursement obligations for operating expenses, common area costs, insurance, or real estate and personal property taxes) for any given tenant, due but not paid as of the Closing Date or becoming due after the Closing Date but pertaining to the period before the Closing Date (collectively, Seller’s Tenant Reimbursements”), Buyer shall forward any such amounts received by Buyer directly to Seller, but all rent, including such reimbursement obligations, paid after the Closing Date, by or for any given tenant shall be credited first to amounts payable by said tenant with respect to the period on and after the Closing Date. The parties further agree with respect to Seller’s Tenant Reimbursements as follows:
(a) Schedule 10C attached hereto and incorporated herein contains a summary of Seller’s Tenant Reimbursements incurred during the 2004 calendar year and being billed to tenants during the 12-month period ending in February, 2006. Notwithstanding anything seemingly to the contrary herein, Buyer shall pay at the Closing the full amount of its share (as tenant under the Lease) of Seller’s Tenant Reimbursement for the 2004 calendar year.
(b) Buyer shall use commercially reasonable efforts to collect Seller’s Tenant Reimbursements, which efforts shall not include any obligation of Buyer to file suit or engage third parties to collect such amounts. The Assignment of Leases delivered to Buyer at the Closing shall reserve the right of Seller to collect Seller’s Tenant Reimbursements from tenants who fail to pay the same, but Seller shall not be permitted to terminate leases or evict tenants.
(c) The provisions parties hereby agree to cooperate with each other and to exchange information necessary for Buyer to ▇▇▇▇ tenants for operating expense escalations for the 2005 calendar year and to prorate such amounts, if any, between Buyer and Seller. Once such proration is determined, Seller’s portion shall constitute Seller’s Tenant Reimbursements subject to the terms of this Section 5 10 C(iv).
(v) Seller shall survive pay to Buyer the closing amount of all damage, escrow or security deposits collected or received by Seller with respect to any tenants of the sale of the Property hereunder (the “Closing”)Property, which must be repaid to any such tenants pursuant to any leases or any applicable statute, without deduction or set off.
Appears in 1 contract
Closing Adjustments. (a) Closing adjustments The following items shall be made paid, prorated, or adjusted as of 12:00:01 A.M. on the day of the Closing Date in the manner hereinafter set forth:
(a) All real estate Taxes as well as any Taxes assessed on the “Adjustment Personal Property, due and owing on or before the Closing Date”), all penalties and interest thereon, and all special assessments affecting the Terminals, whether payable in installments or not, shall be paid in full by Seller.
(b) Current ad valorem Taxes including real estate Taxes, special assessments and charges for the current year (“Property Taxes”) shall be allocated between Seller and Buyer as of the Closing Date on the basis of no applicable discount. The allocation shall be based on the number of days that each party owns the Terminals during the year of the sale. If the amount of such Property Taxes with respect to any of the Terminals for the calendar year in which the Closing occurs has not been determined as of the Closing Date, then the Property Taxes with respect to such Terminals for the preceding calendar year, on the basis of no applicable discount, shall be used to calculate such allocations, with known changes in valuation applied. Seller’s allocated share of the Property Taxes for the current year shall be credited to Buyer at Closing as a reduction in Purchase Price and Buyer shall assume the responsibility to pay the Property Taxes, unless Seller has already paid the current year’s Property Taxes, in which case Seller shall be entitled to all revenues from credited at Closing as an increase in Purchase Price with Buyer’s allocated share of the Property relating Taxes. If the actual amount of any such Property Taxes varies by more than Twenty Thousand Dollars ($20,000) from estimates used at the Closing to prorate such taxes, then the period prior to parties shall re-prorate such Property Taxes within ten (10) days following a request by either party based on the Adjustment Date, and Buyer shall be entitled to all such revenues relating to actual amount of the period from and after the Adjustment Date. tax bills.
(c) Seller shall be responsible for the payment cost of Terminals utilities up to Closing and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated responsible for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Datecosts thereafter.
(d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for bear and pay all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify title insurance premiums and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxescharges.
(e) The provisions of this Section 5 Buyer shall survive bear and pay all realty transfer fees, recording costs and Taxes associated with the closing conveyance of the sale Real Property, the Improvements and the Personal Property, except Taxes imposed by reason of capital or income of Seller. Seller and Buyer agree that no sales and use taxes will be reported on any of the Property hereunder Terminals transferred to Buyer since such sale qualifies for an occasional sale exemption.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the “cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable revenue-generating contract shall be prorated as of the Closing Date upon the payment cycle established under such revenue-generating contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing”).
(h) The Parties shall make all other adjustments necessary to effectuate the intent of the Parties as set forth in this Agreement.
Appears in 1 contract
Sources: Terminals Sale and Purchase Agreement (Sunoco Logistics Partners Lp)
Closing Adjustments. (a) Closing adjustments The following items shall be made paid, prorated, or adjusted as of 12:00:01 A.M. on the day of the Closing Date in the manner hereinafter set forth:
(a) All real estate Taxes, as well as Taxes assessed on Terminal Inventory, due and owing on or before the “Adjustment Closing Date”), all penalties and interest thereon, and all special assessments affecting the Terminals, whether payable in installments or not, shall be paid in full by Seller.
(b) Seller Current real estate Taxes, assessments and charges for the Terminals shall be entitled prorated as of the Closing Date upon the tax year of the applicable taxing authority, without regard to all revenues when said Taxes are payable, so that the portion of current Taxes allocable to the period from the Property relating beginning of such year to the Closing Date shall be the responsibility of Seller and the portion of the current Taxes allocable to the portion of such year from the Closing Date to the end of such year shall be the responsibility of Buyer. These Taxes will be prorated -57- based on the current assessed value for 2004. A post-closing adjustment will be made to reflect accurately Seller's responsibility for that portion of real estate Taxes attributable to the period prior to the Adjustment Closing Date, and Buyer shall be entitled to all such revenues relating Buyer's responsibility for that portion of real estate Taxes attributable to the period from and after following the Adjustment Closing Date. The post-closing adjustment will be made upon receipt by Buyer of the relevant tax bill from the appropriate Governmental Authorities, but no later than ▇▇▇ year following the Closing Date. Any post-closing adjustment proposed by Buyer will be supported by copies of said tax bills along with other reasonable documentation to be provided to Seller.
(c) Seller shall be responsible for the payment cost of utilities for each Terminal up to Closing and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated responsible for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Datecosts thereafter.
(d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for bear and pay all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify title insurance premiums and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxescharges.
(e) The provisions of this Section 5 Buyer shall survive bear and pay all realty transfer fees, recording costs and Taxes associated with the closing conveyance of the sale Real Property, the Improvements and the Personal Property.
(f) Seller and Buyer shall each pay their own respective legal fees and expenses and the cost of performance of their respective obligations hereunder.
(g) All amounts due Seller under any assignable Revenue-Generating Contract shall be prorated as of the Property hereunder Closing Date upon the payment cycle established under such Revenue-Generating Contract so that the portion the amounts due Seller from the beginning of such payment cycle to the Closing Date will be credited to Seller at Closing.
(h) The Parties shall make all other adjustments necessary to effectuate the “Closing”)intent of the Parties as set forth in this Agreement.
Appears in 1 contract
Sources: Terminal Purchase and Sales Agreement (Buckeye Partners L P)
Closing Adjustments. (a) Closing adjustments Except as otherwise set forth hereinafter, if this Agreement is consummated the following items shall be made paid, prorated, or adjusted as of 12:00:01 A.M. 11:59 p.m. on the day of the Closing Date (the “Adjustment Proration Date”).) in the manner hereinafter set forth:
9.1 The following will be credited to Purchaser as of the Proration Date: (a) prepaid rent and additional rent paid for the balance of the month of Closing and for January 2006 as set forth in the Lease; (b) Seller shall be entitled all cash security deposits required to all revenues from have been deposited with Purchaser under the Property relating to the period prior to the Adjustment Date, Lease; and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. (c) accrued real estate taxes reasonably estimated by Purchaser.
9.2 Seller shall pay all expenses necessary to repair, operate and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable maintain the Subject Property incurred up to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) 9.3 Seller shall be responsible for all incomebear and pay one-half of the escrow fees, franchise one-half of any New York style closing fee, one-half of the state and other taxes imposed on Sellercounty transfer, documentary, or its income, or stamp taxes on the Property (“Taxes”) sale contemplated hereunder and all release fees or, at Purchaser’s option, Seller shall allow Purchaser a credit therefor at Closing. Purchaser shall pay one-half the escrow fees, one-half of any New York style closing fee, and all costs of any title policies and the survey as well as all recording fees for all taxable periods or portions the Warranty Deed, but not fees related to the release of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or BuyerSeller’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”mortgage(s). Seller and Purchaser shall indemnify each pay their respective legal fees and hold Buyer harmless from expenses and against all liability from Taxes attributable the cost of performance of each of its respective obligations hereunder (except if specifically provided to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable contrary herein).
9.4 All other items which are customarily prorated in whole or in part transactions similar to the Pre-Closing Periodtransaction contemplated hereby and which were not heretofore in this Article 10 dealt with, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxes.
(e) The provisions of this Section 5 shall survive the closing will be prorated as of the sale of the Property hereunder (the “Closing”)Proration Date.
Appears in 1 contract
Closing Adjustments. (a) Closing adjustments Prorations shall be made between Seller and Purchaser on a per diem basis as of 12:00:01 A.M. on the Closing Date. The Closing Date shall be a day of income and expense for Purchaser. The following items shall be prorated and adjusted between Seller and Purchaser as of the Closing Date, except as otherwise specified:
9.1 All rents and other amounts paid by the Tenants under the Leases (collectively, "Rent"), for the month of Closing shall be prorated as of the Closing Date (based on the “Adjustment Date”).
(b) Seller shall be entitled to all revenues from the Property relating to the period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that of ownership of Seller will receive and Purchaser for such month. If the portion of such revenues, and bear the portion of such expenses, apportioned to the period Closing shall occur before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the PropertyRents have actually been paid for such month, the apportionment of the Rents shall be adjusted and prorated on upon the basis of the fiscal year for which assessedRents actually received by Seller. Rents in arrears will not be prorated, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date but Seller's share thereof shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant remitted to Seller under the Leases, by Purchaser if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Dateand when collected by Purchaser. Buyer shall remit the appropriate portion of the same to Seller, as, when and if Monies received after the Closing Date, provided that all Rents received by either party from and Tenants after the Closing Date shall be deemed applied in the chronological order in which they accrue.
9.2 To the extent not paid by directly by Tenants, the parties will coordinate to represent Rents most recently due transfer billing for water, electricity, sewer, gas, telephone and payableother utilities charges as of the Closing Date, in inverse order and/or prorate such items if such billing transfers cannot be accomplished on Closing. Any security deposits or similar items paid to utility providers by Seller shall remain the property of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel9.3 Real estate taxes shall be prorated as of the Closing Date on a cash, if anyrather than accrual basis, that has been purchased based on the last ascertainable tax ▇▇▇▇ and such proration shall be final.
9.4 All unapplied balances of security deposits under the Leases held by Seller shall be adjusted and prorated credited to Purchaser on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxes.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Industrial Building Lease
Closing Adjustments. The prorations and adjustments described in this Section 10 (collectively the "Closing Adjustments") shall be made between Buyer and Seller at Closing or thereafter in accordance with the following:
(a) All state and county ad valorem taxes and similar impositions levied or imposed upon or assessed against the Property (the "Taxes") for the year in which Closing adjustments occurs shall be made prorated as of 12:00:01 A.M. on the day of the Closing Date (the “Adjustment Date”).
(b) Unless Buyer initiates new utility accounts or contracts with the applicable utility providers, all utility charges (including, without limitation, telephone, water, storm and sanitary sewer, electricity, gas, garbage and waste shall be prorated as of the Closing Date, transfer fees required with respect to any such utility shall be paid by or charged to Buyer, and Seller shall be entitled to all revenues from the Property relating credited with any deposits transferred to the period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge account of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.Buyer;
(c) Revenues and expenses that are allocable to a period of time falling in part on or beforeAll sums paid by parties under the Facility Agreements, and in part after, the Adjustment Date shall be apportioned between such respective portions prorated as of the period Closing Date;
(d) Unless otherwise agreed to in question according to the number of days in each, so that writing by Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):Buyer,
(i) Personal property taxes, real property taxes, water All Property income and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges receivables relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date periods prior to the Closing Date through shall remain the Adjustment Date shall be apportioned on the basis property of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.Seller;
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges Property income and other charges payable by any Tenant receivables relating to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing periods commencing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and or after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order the property of arrearageBuyer. Rents paid for a period that includes days before and on or after Income from the Adjustment Date Property received for/during the month of the Closing shall be adjusted prorated between Seller and prorated for such period promptly after receipt thereof by Buyer or Seller.Buyer; and
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted All other items of expense and prorated on income regarding the basis of the written estimate of the quantity operation and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use ownership of the Property after shall be prorated as of the Closing Date.
(de) Seller shall be responsible The parties acknowledge that not all invoices for all income, franchise and other taxes imposed on Seller, or its income, or on expenses incurred with respect to the Property (“Taxes”) for all taxable periods or portions prior to the Closing will be received by the Closing and that a mechanism needs to be in place so that such invoices can be paid as received. All of taxable periods, ending before the Adjustment Date (Closing Adjustments will be done on an interim basis at the “Pre-Closing Period”and will be subject to final adjustment in accordance with this Section 10(e). After Closing, upon receipt by Buyer shall be responsible of an invoice for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes Property's operating expenses that are attributable in whole or in part to a period prior to the Pre-Closing Periodand that were not apportioned at Closing, Buyer shall promptly reimburse within ten (10) days submit to Seller a copy of such invoice with such additional supporting information as Seller shall reasonably request. Within ten (10) days of receipt of such copy, Seller shall pay to Buyer an amount equal to the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes invoice attributable in whole or in part to the Post-period ending on the Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxesDate.
(ef) In the event that any of the prorations or adjustments described in this Section 10 are based upon estimated or erroneous information, then the parties shall make between themselves any equitable adjustment required by reason of any difference between such estimated or erroneous amounts and the actual amounts of such sums within ten (10) days following the receipt by the parties of information correcting or finalizing such estimated or erroneous information. In making the prorations required by this Section 10, the economic burdens and benefits of ownership of the Property for the Closing Date shall be allocated to Buyer. The provisions of this Section 5 10 shall survive the closing Closing for a period of the sale of the Property hereunder twelve (the “Closing”)12) months.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Closing Adjustments. (a) Closing adjustments Purchaser shall be made charged at the Closing with the following items, adjusted as of 12:00:01 A.M. on midnight of the day of immediately preceding the Closing Date (the “Adjustment Date”).
(b) Seller shall be entitled to all revenues from the Property relating to the period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay and discharge and defend, indemnify and hold harmless Buyer from and against all such expenses, obligations and liabilities.
(c) Revenues and expenses that are allocable to a period of time falling in part on or before, and in part after, the Adjustment Date shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, Closing: prepaid real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, estate taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for real estate tax year; prepaid water and sewer rents apportioned on the same period in basis of the preceding calendar applicable payment period; the reasonable value of fuel on hand; and the pro-rated value of all existing policies of insurance. Purchaser shall likewise be credited at the Closing with the following items: (i) accrued real estate taxes apportioned on the basis of the real estate tax year, but applying the current rate thereto.
; (ii) All accrued real estate assessments; (iii) charges accrued for electricity, sewer, water, steam and gas; (iv) prepaid rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by covering any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received period from and after the Closing Date (it being understood and agreed that for purposes hereof, "prepaid rents" shall not be deemed to include the amount of free rent to which American Tissue Corporation is entitled under its lease with the Corporation of a portion of the real property owned by the Corporation); (v) an amount equal to the deposits made by tenants under leases; (vi) an amount equal to all items 3 carried by the Corporation, or which should be carried, for rent refunds; (vii) accounts payable; (viii) an amount equal to the sum of all unpaid Taxes (as hereinafter defined) (other than real estate taxes) of the Corporation for any fiscal year up to and including its fiscal year ended December 31, 1995, together with the amount of Taxes, if any, accrued for the elapsed part of the fiscal year of the Corporation commencing January 1, 1996, and ending at Closing. Such apportionment, however, shall not be deemed conclusive upon Purchaser or prejudice any of Purchaser's rights or claims in respect of the Corporation's unpaid Taxes or liabilities, if any; (ix) an amount equal to the sum of operating expenses and insurance, unpaid and accrued as of the Closing, exclusive of water charges, if any, payable by tenants. The term "operating expenses" shall be deemed to represent Rents most recently due include (but not be limited to) employee's salaries and payable, wages and apportioned vacation pay; and (x) an amount equal to the total of all transfer taxes payable in inverse order connection with the transfer of arrearage. Rents paid for a period that includes days before the Shares by Seller to Purchaser and on or after the Adjustment Date such amount shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on applied to the basis payment of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companies, in which event it shall not receive such a credit at the Closing.
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(d) Seller shall be responsible for all income, franchise and other taxes imposed on Seller, or its income, or on the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of transfer taxes.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Stock Purchase Agreement (Performance Industries Inc/Oh/)
Closing Adjustments. (a) The prorations and adjustments described in this Section 10 (collectively the "Closing adjustments Adjustments") and outlined in Schedule II attached hereto shall be made between Buyer and Seller at Closing or thereafter in accordance with the following:
(i) All city, state and county ad valorem taxes and similar impositions levied or imposed upon or assessed against the Property (the "Taxes") for the year in which Closing occurs shall be prorated as of 12:00:01 A.M. on the day of the Closing Date (the “Adjustment Date”).
(b) Seller shall be entitled to all revenues from the Property relating to the period prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Date. Seller shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing prior to the Adjustment Date. Seller shall pay all back taxes. Seller will be responsible for any roll-back taxes applicable to any year prior to the year of the Closing, with the regular and discharge and defendroll-back taxes applicable to the year of the Closing being prorated as of the Closing Date. Seller will escrow, indemnify and hold harmless Buyer from and against all at the Closing, with the Title Company the estimated amount of roll-back taxes for such expenses, obligations and liabilities.
(c) Revenues and expenses that prior years. In the event the Taxes are allocable to a period not determinable at the time of time falling in part on or before, and in part afterClosing, the Adjustment Date Taxes shall be apportioned between such respective portions of the period in question according to the number of days in each, so that Seller will receive the portion of such revenues, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection with the use, occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessedbest available information (the "Estimated Taxes"). In the event any of the Taxes are delinquent at the time of Closing, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date same shall be apportioned on paid at Closing. If the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Date. Unmetered water charges shall be apportioned on the basis of the charges therefor for the same period in the preceding calendar year, but applying the current rate thereto.
(ii) All rents under the Leases (including base rents, percentage rents, common area maintenance charges and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that Taxes are in arrears as of the Adjustment Date shall be identified in writing on the Certified Rent Roll (as defined below), but shall not be adjusted on the Closing Date. Buyer shall remit the appropriate portion of the same to Seller, as, when and if received after the Closing Date, provided that all Rents received from and after the Closing Date shall be deemed to represent Rents most recently due and payable, in inverse order of arrearage. Rents paid for a period that includes days before and on or after the Adjustment Date shall be adjusted and prorated for such period promptly after receipt thereof by Buyer or Seller.
(iii) Fuel, if any, that has been purchased by Seller shall be adjusted and prorated on the basis of the written estimate of the quantity and current price therefor (including sales tax, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternativelyat Closing, Seller shall deliver to Buyer the bills for the Taxes promptly upon receipt thereof and Buyer shall thereupon be entitled to request a return responsible for the payment in full of said deposits from the vendors or utility companiesTaxes within the time fixed for payment thereof and before the same shall become delinquent. Notwithstanding the foregoing, in which the event it actual Taxes for the year of Closing exceed the Estimated Taxes for the year of Closing (the "Tax Excess") or Estimated Taxes for the year of Closing exceed the actual Taxes for the year of Closing (the "Tax Refund"), Seller and Buyer shall not receive prorate and pay such a credit at the Closing.Tax Excess or such Tax Refund as follows:
(v) Buyer shall receive a credit for any deposit, prepaid rent or other payments made to Seller by any Tenant prior to the Closing Date with respect to the use of the Property after the Closing Date.
(dA) Seller shall be responsible for all income, franchise a portion of the Tax Excess or shall receive credit for the Tax Refund prorated from January 1 of the year of Closing through the Closing Date based upon a 365 day calendar year. Buyer shall notify Seller of any Tax Excess or Tax Refund. The notification shall include a calculation of the amount due to Buyer from Seller in the case of a Tax Excess or the amount due to Seller from Buyer in the case of a Tax Refund. Seller shall have thirty (30) days from Seller's receipt of such notification to pay its portion of the Tax Excess to Buyer and other taxes imposed on Seller, or Buyer shall have thirty (30) days from Buyer's delivery of such notification to Seller to pay Seller its income, or on portion of the Property Tax Refund.
(“Taxes”B) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for a portion of the Tax Excess prorated from the Closing Date through December 31 of the year of Closing based upon a 365 day calendar year. Buyer shall assume responsibility for payment of the Estimated Taxes as of the Closing Date, and shall notify Seller of any Tax Excess or Tax Refund pursuant to the terms of Section (b) hereof;
(b) All utility charges (including, without limitation, telephone, water, storm and sanitary sewer, electricity, gas, garbage and waste, compost and recycling removal), all Taxes imposed on Carbon Taxes, Carbon Offsets, and reimbursement for any of the Property foregoing for the Project (to the extent not paid or Buyer’s income for all taxable periods or portions payable by tenants under Leases) shall be prorated as of taxable periods beginning on the Adjustment Closing Date (the “Post-Closing Period”). and Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable be credited with any deposits transferred to the Pre-account of Buyer;
(c) All paid rents, together with any other sums paid by tenants, under the Leases (including without limitation operating expenditures, common area maintenance charges, capital expenditures or surcharges including without limitation any related to Green Elements), shall be prorated as of the Closing PeriodDate. If Buyer receives a refundIn the event that, credit at the time of Closing, there are any past due or reduction delinquent rents owing by any tenants of Taxes attributable in whole or in part to the Pre-Closing PeriodProject, Buyer shall promptly reimburse have the exclusive right to collect such past due or delinquent rents and shall remit to Seller its pro-rata share thereof, to the extent, and only to the extent, that the aggregate rents received by Buyer from each such tenant owing past due or delinquent rents exceed the sum of (A) the aggregate rents and other sums then due and payable by such tenant for periods from and after the Closing Date, and (B) any reasonable and necessary amounts expended by Buyer to collect such portion past due or delinquent rents. Buyer shall have no obligation to collect or enforce collection of any such refundpast due or delinquent rents from or against any tenant. In the event that, credit or reduction of Taxes. If after Closing, Seller receives a refund any payments of rent or reduction of Taxes attributable in whole or in part other sums due from tenants under Leases that relate to the Post-Closing Periodperiods from and after Closing, Seller shall promptly reimburse Buyer for such forward to Buyer, Buyer's portion of such refund, credit or reduction of taxes.payments;
(ed) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).Unless otherwise agreed to in writing by Seller and Buyer,
Appears in 1 contract
Sources: Purchase and Sale Agreement
Closing Adjustments. In addition to any other credits or prorations provided elsewhere in this Agreement, the Purchase Price payable by Transferee to Transferor at Closing pursuant to Section 1.2 shall be adjusted as of the Proration Time in accordance with the provisions set forth in this Section 10.1. Transferee and Transferor agree to cause their accountants to prepare a proration schedule (the “Proration Schedule”) of adjustments not later than 3 Business Days prior to Closing. Such adjustments, if and to the extent known and agreed upon as of the Closing Date, shall be (i) added to the Purchase Price and paid by Transferee to Transferor (if the prorations result in a net credit to Transferor), or (ii) credited to the amount of Purchase Price payable by Transferee to Transferor (if the prorations result in a net credit to Transferee). Any such adjustments or other adjustments prescribed under this Agreement, which 22510983v9 are not determined or agreed upon as of the Closing Date, shall be paid by Transferee or Transferor to the other party in cash as soon as practicable following the Closing Date pursuant to the terms of Sections 10.1(h) and (m), which payments from Transferee or Transferor, as the case may be, to the other party shall be treated by the parties as a purchase price adjustment for all income tax purposes. All such prorations and adjustments under this Agreement shall be calculated based on the actual number of days of the applicable calendar month and on a 365 day year, as applicable. The provisions of this Section 10.1 shall survive Closing.
(a) Real estate taxes and assessments and personal property taxes related to the Property, to the extent not paid directly by a Tenant to the applicable authorities, shall be prorated between Transferor and Transferee at Closing. If Closing adjustments shall occur before the amount of taxes is fixed for the Property, the apportionment of all such taxes shall be made as of 12:00:01 A.M. on the day based upon one hundred percent (100%) of the tax rate for the preceding year, applied to the latest assessed valuation of the Property. Upon receipt of the actual tax ▇▇▇▇ for the Property, the proration of taxes made at Closing Date (shall be subject to adjustment pursuant to Section 10.1(h) and Section 10.1(m). Refunds of the “Adjustment Date”)foregoing for the tax year in which the Closing occurs, net of the reasonable out-of-pocket costs of pursuing any tax contest or proceeding or collecting such funds, shall be prorated in proportion to the respective shares thereof borne by the parties under the preceding sentence, subject to the rights of Tenants to receive all or part of such refunds. Any portion of a refund payable to a Tenant for any period shall be paid to Transferee, who shall effect, and be liable for, payment thereof to such Tenant.
(b) Seller Any and all income and other expenses attributable to the Property (including, without limitation, income and expenses under the Continuing Contracts and interest under the Existing Mortgage Loan) shall be entitled prorated between Transferor and Transferee at Closing, subject to any other provision of this Section 10.1 that expressly governs the allocation or adjustment of a specific type of income or expense.
(c) Transferor shall arrange for final meter readings on all revenues from utilities, to the extent not paid for directly by a Tenant to the applicable utility provider, at the Property relating to the period be taken prior to the Adjustment Date, and Buyer shall be entitled to all such revenues relating to the period from and after the Adjustment Closing Date. Seller Transferor shall be responsible for the payment and discharge of all expenses, obligations and liabilities relating to the Property arising or accruing such utilities used prior to the Adjustment Date. Seller Proration Time and Transferee shall pay and discharge and defend, indemnify and hold harmless Buyer from and against be responsible for the payment of all such expensesutilities used on or after the Proration Time. With respect to any utility at the Property for which there is no meter, obligations the expenses for such utility shall be prorated between Transferor and liabilitiesTransferee at Closing based upon the most current ▇▇▇▇ for such utility. All deposits with utility companies will be left in place with such utility companies, and Transferor shall receive a credit therefor at Closing.
(cd) Revenues Basic rents, which include rent denominated on a square foot basis as well as percentage rent for the Tenants who pay percentage rent in lieu of rent denominated on a square foot basis, in each case, from the Property (“Basic Rent”), percentage of sales/overage rents and expenses that are additional rent relating to electricity, HVAC and pass-through charges of taxes, operating, maintenance and other similar expenses, in each case, from the Property (collectively, “Additional Rent”) shall, subject to Section 10.1(e), be prorated between Transferor and 22510983v9 Transferee based upon Basic Rent and Additional Rent actually collected (and, with respect to percentage rent, in proportion to the relative number of days in the subject percentage rent lease period occurring prior and subsequent to the Proration Time) or currently due and payable (not more than 30 days overdue). All prepaid Basic Rent, Additional Rent and other income from the Property shall be credited to Transferee at Closing, if and to the extent the same is properly allocable to a period of time falling in part on or beforeafter the Proration Time. With respect to Additional Rent which is paid based upon an estimate with an end-of-year (calendar or fiscal) accounting and adjustment or otherwise, Transferor and in part afterTransferee shall, the Adjustment Date shall be apportioned between such respective portions of the period in question according after Closing, make any adjustments to the number of days in each, so that Seller will receive the portion proration of such revenuesitems made at Closing, and bear the portion of such expenses, apportioned to the period before the Adjustment Date, and Buyer will receive and bear the balance of each relating to the period from and after the Adjustment Date. Without limiting the generality of this paragraph (c):
(i) Personal property taxes, real property taxes, water and sewer rents and charges, utility fees and charges, and all other fees, taxes and charges relating to or payable in connection accordance with the useapplicable provisions of Section 10.1(i), occupancy, maintenance, ownership and operation of the Property, shall be adjusted and prorated on the basis of the fiscal year for which assessed, or the fiscal period covered by the appropriate invoice, ▇▇▇▇ or statement, or based on the most recently available meter reading therefor. Metered utility charges for the period from the last reading date prior to the Closing Date through the Adjustment Date shall be apportioned on the basis of such last reading, but shall be reapportioned according to actual charges promptly after the first reading following the Closing Datefinal rental, tax and operating expense numbers become available and such end-of-year accountings are completed. Unmetered water charges Any adjustments for percentage rent payments or other Additional Rent payments shall be apportioned on the basis made for any Tenant after completion of the charges therefor applicable percentage rent lease period or the applicable Additional Rent Year for the same period in the preceding calendar year, but applying the current rate theretosuch Tenant.
(iie) All rents under the Leases (including base rents, percentage rents, common area maintenance charges Basic Rent and other charges payable by any Tenant to Seller under the Leases, if any) (collectively, the “Rents”) that are in arrears as of the Adjustment Date shall be identified in writing on the Certified Additional Rent Roll (as defined below), but which is more than 30 days delinquent and remains uncollected at Closing shall not be adjusted on prorated between Transferor and Transferee at Closing. At Closing, Transferor shall furnish to Transferee a schedule of delinquent Basic Rent and Additional Rent which is more than 30 days overdue under the Closing DateTenant Leases. Buyer shall remit the appropriate portion of the same to Seller, as, when and if Any Basic Rent or Additional Rent received after the Closing Date, provided that all Rents received by Transferor or its affiliates from and after the Closing Date shall promptly be deemed remitted to represent Rents most recently due and payableTransferee, for application in inverse order of arrearageaccordance with this Agreement. Rents paid for a period that includes days before and on or after the Adjustment Date In accordance with Section 10.1(m), Transferor shall be adjusted entitled to a credit for Transferor’s pro rata share of any delinquent Basic Rent and prorated for Additional Rent collected by Transferee (including any amounts remitted to Transferee by Transferor pursuant to the provisions of Section 10.1), less the reasonable out-of-pocket costs and expenses actually incurred by Transferee in collecting such period delinquent Basic Rent and Additional Rent, promptly after receipt thereof by Buyer or Seller.
(iii) FuelTransferee; provided, if anyhowever, that has been purchased by Seller sums so collected shall be adjusted applied, first, in payment of Basic Rent and prorated on Additional Rent for the basis then current-month (if not the month in which the Closing Date occurs), second, in payment of the written estimate of Basic Rent and Additional Rent for the quantity and current price therefor (including sales taxcalendar month in which the Closing Date occurs, if any) by Seller’s fuel supplier on or about the Adjustment Date.
(iv) Seller shall receive a credit for deposits made by Seller with utility companies, provided reasonable proof that such deposits are then being held has been provided to Buyer. Alternatively, Seller shall be entitled to request a return of said deposits from the vendors or utility companiesthird, in which event it shall not receive such a credit at payment of Basic Rent and Additional Rent for other periods delinquent subsequent to the Closing.
(v) Buyer shall receive a credit Closing Date, and finally, in payment of Basic Rent and Additional Rent for any deposit, prepaid rent or other payments made to Seller by any Tenant periods prior to the Closing Date with respect in reverse order in which they were due. Notwithstanding the foregoing, if and to the use extent that any delinquent Basic Rent or Additional Rent owed by a former tenant of the Property after that as of the Closing Date is no longer in occupancy and has no right of occupancy under any unexpired or unterminated lease (including, in the case of any such former tenant that is the debtor in a federal Bankruptcy Code case, any award or other payment on account of a claim for such delinquent Basic Rent or Additional Rent is ordered or allowed by the bankruptcy court in such case) is collected by Transferor or Transferee, such Basic Rent or Additional Rent shall, in accordance with Section 10.1(m), be credited to Transferor. Transferee shall, in the ordinary course of business when Transferor sends bills to Tenants, ▇▇▇▇ Tenants owing Basic Rent and Additional Rent for periods prior to the Closing Date (regardless of whether such Basic Rent or Additional Rent was previously billed or unbilled or delinquent prior to the Closing Date.
(d) Seller shall be responsible ), for all income, franchise and other taxes imposed on Seller, or its income, or on a period of one year following the Property (“Taxes”) for all taxable periods or portions of taxable periods, ending before the Adjustment Date (the “Pre-Closing Period”). Buyer shall be responsible for all Taxes imposed on the Property or Buyer’s income for all taxable periods or portions of taxable periods beginning on the Adjustment Date (the “Post-Closing Period”). Seller shall indemnify and hold Buyer harmless from and against all liability from Taxes attributable to the Pre-Closing Period. If Buyer receives a refund, credit or reduction of Taxes attributable in whole or in part to the Pre-Closing Period, Buyer shall promptly reimburse the Seller for such portion of such refund, credit or reduction of Taxes. If Seller receives a refund or reduction of Taxes attributable in whole or in part to the Post-Closing Period, Seller shall promptly reimburse Buyer for such portion of such refund, credit or reduction of taxes.
(e) The provisions of this Section 5 shall survive the closing of the sale of the Property hereunder (the “Closing”).
Appears in 1 contract
Sources: Purchase and Sale Agreement (CBL & Associates Properties Inc)