Prorations The following shall be prorated between Buyer and Seller as of 11:59 p.m. local time of the day immediately preceding the Closing Date, on the basis of the actual number of days elapsed during the month in which the Closing occurs: general and special county and city real property taxes and special assessments (collectively, "Taxes") for the tax period then in effect and insurance premiums (but only if Buyer is assuming Seller's insurance policy or policies). Proration of Taxes shall be based on the most recent official tax bills or notice of valuation available for the fiscal year in which the Closing occurs, with due allowance to be made for the maximum available discount or other exemptions to the extent permissible for said year, and to the extent the tax bills do not accurately reflect the actual Taxes assessed against the Property (or any portion of the Property) and allocable either to the period before the Closing or to the period after the Closing, then Buyer and Seller shall adjust the actual Taxes between Buyer and Seller, outside of Escrow, as soon as reasonably possible following the Closing. In addition to the foregoing apportionments, Seller shall receive all rents and other income accrued, and shall pay all other expenses accrued or incurred, in connection with the ownership or operation of Property before the Closing Date, and Buyer shall receive all rents and other income accruing, and shall pay all other expenses accrued or incurred, in connection with the ownership or operation of Property on or after the Closing Date, all of which rents, other income and expenses shall be prorated as of the Closing. Rents and other income, if any, collected by Buyer after the Closing shall be applied first to any amounts due to Buyer and then, to the extent such rents or other income relate to the period ending on or before the Closing, such rents or other income shall be paid to Seller within ten (10) days after end of the month in which such amounts were collected. Buyer shall incur no obligation to Seller for Buyer's failure to collect such rentals or other income. All security and any other refundable deposits paid by tenants to Seller pursuant to tenant leases shall be delivered by certified funds to Buyer at the Closing or, at Seller's option, credited to Buyer against the cash portion of the Purchase Price at the Closing. Escrow Holder shall not be concerned with any prorations that are to be made after the Closing pursuant to this Agreement.
Proration (a) The allocation of rights to receive the Cash Consideration and the Stock Consideration among Holders will be made as set forth in this Section 2.2(a) (with the Exchange Agent to determine, consistent with Section 2.3(c), whether fractions of Cash Election Shares, Stock Election Shares or Non-Election Shares, as applicable, shall be rounded up or down).
(i) If the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares and all Non-Election Shares shall be converted into the right to receive the Cash Consideration and, subject to Section 2.5(f) hereof, each holder of Stock Election Shares will be entitled to receive the Stock Consideration in respect of that number of Stock Election Shares held by such holder equal to the product obtained by multiplying (x) the number of Stock Election Shares held by such holder by (y) a fraction, the numerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the remaining number of such holder’s Stock Election Shares being converted into the right to receive the Cash Consideration; and
(ii) If the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred to herein as the “Shortfall Number”), then all Stock Election Shares shall be converted into the right to receive the Stock Consideration and the Non-Election Shares and the Cash Election Shares shall be treated in the following manner:
(A) If the Shortfall Number is less than or equal to the number of Non-Election Shares, then all Cash Election Shares shall be converted into the right to receive the Cash Consideration and, subject to Section 2.5(f) hereof, each holder of Non-Election Shares shall receive the Stock Consideration in respect of that number of Non-Election Shares held by such holder equal to the product obtained by multiplying (x) the number of Non-Election Shares held by such holder by (y) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder’s Non-Election Shares being converted into the right to receive the Cash Consideration; or
(B) If the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration and, subject to Section 2.5(f) hereof, each holder of Cash Election Shares shall receive the Stock Consideration in respect of that number of Cash Election Shares equal to the product obtained by multiplying (x) the number of Cash Election Shares held by such holder by (y) a fraction, the numerator of which is the amount by which (1) the Shortfall Number exceeds (2) the total number of Non-Election Shares, and the denominator of which is the total number of Cash Election Shares, with the remaining number of such holder’s Cash Election Shares being converted into the right to receive the Cash Consideration.
Adjustments and Prorations 6.1 The following adjustments and prorations shall be made at the Closing between SCOLP, Owner and Contributor. The adjustments and prorations will be made by a cash payment and shall not be an adjustment to the Units to be issued at Closing.
(a) Real estate taxes and personal property taxes which are a lien upon or levied against any portion of the Project prior to the Contribution Date (other than current taxes), and all special assessments levied on any portion of the Project prior to the Contribution Date, shall be paid by Owner or Contributor prior to the Contribution Date. Current real estate and personal property taxes and assessments shall be prorated at the Closing effective as of the Closing Date on a calendar year basis, understanding that real estate taxes in the State of Florida are payable in arrears. Such proration shall be made on the basis of the amount of real estate and personal property taxes for the current year if and to the extent that the taxing authorities have issued statements therefor, but otherwise based on real estate taxes assessed for the current tax year plus an estimated increase of 5%. Real estate taxes and personal property taxes levied against any portion of the Project and applicable to the period after the Contribution Date shall be prorated and adjusted between the parties on a calendar year basis and shall be paid by Contributor or SCOLP, as the case may be.
(b) The amount of all unpaid water and other utility bills for the Project which are not directly billed to the tenants of the Project, and all other operating and other expenses incurred with respect to the Project and Owner, and relating to the period prior to the Contribution Date, shall be paid by Owner or Contributor on or prior to the Contribution Date or, if not paid, an amount equal to such unpaid expenses shall be part of the cash adjustment at Closing. The amount of all prepaid water and other utility bills for the Project, and all other operating and other expenses to be incurred with respect to the Project and Owner, and relating to the period after and including the Contribution Date, shall be paid by SCOLP to Contributor on the Contribution Date.
(c) Charges under Project Contracts (as defined below) attributable to the period prior to the Contribution Date shall be paid by Owner or Contributor prior to the Contribution Date, or, if not paid, the amount due shall be reserved in cash within the Owner as of the Contribution Date. Prepaid charges under Project Contracts attributable to the period after and including the Contribution Date shall be paid by SCOLP to Contributor on the Contribution Date.
(d) All rental and other revenues collected by Owner up to the Contribution Date which are allocable to the period prior to the Contribution Date, including without limit pass-through and pass-on charges, shall become a part of the disbursement from Owner to the Holding Company (and then from the Holding Company to Contributor) made pursuant to Section 6.2 below.
(e) Prepaid revenue received by the Owner attributable to the period after and including the Contribution Date including, without limit, tenant rents, pass-through charges, pass-on charges, water and other periodic revenues (the “Rents”) for the calendar month in which the Closing Date occurs (the “Closing Month”), and Rents not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), shall be prorated on an accrual basis. SCOLP shall either pay the Contributor or provide the Contributor with a credit for (x) all unpaid Rents from tenants who are not delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project); and (y) the pro rata share of the total unpaid Rents for the Closing Month based upon the number of days in such month. SCOLP shall be paid or shall receive a credit for the pro rata share of the collected Rents received for the Closing Month. In addition to the foregoing, SCOLP and Contributor shall mutually agree as to the amount to be paid or credited to Contributor, if any, for Rents delinquent more than thirty days as of the Closing Date (for those residents which remain in occupancy at the Project), based upon the likelihood of collecting such Rents. In the event the parties are unable to agree, the Owner shall apply any payments received during the period between the Closing Date and the date which is ninety days after the Closing Date, first to the cost of collecting such payments, then to the most recent charges due and, thereafter, to unpaid charges due prior to Closing. Any payments received after the ninetieth day after Closing shall not be subject to pro ration. Contributor shall have no further rights following Closing with respect to such Rents. In addition to the foregoing, SCOLP shall also pay or provide Contributor with a credit for the amount of accrued but unpaid utility fees due from the tenants with respect to periods prior to Closing. To the extent any Rents allocable to the period prior to the Closing Date are collected after Closing, they shall remain the property of the Owner and/or SCOLP, and shall not be paid to or distributed to the Contributor. The Owner shall not distribute or assign to the Contributor and the Contributor shall not have the right to seek collection, through litigation or otherwise, of unpaid Rents. Any eviction actions which are on-going as of the Closing Date and the expense of any legal fees associated with such eviction actions incurred on and after the Closing Date shall be the responsibility of Owner after Closing and shall not be charged to Contributor. Sums received on account of such litigation shall also remain the property of the Owner and shall not be paid to the Contributor or otherwise subject to proration.
(f) An amount equal to all expenses of the Project which were paid prior to the Contribution Date and for which Owner will benefit after the Contribution Date shall be disbursed or credited to Contributor at the Closing.
(g) All compensation, fringe benefits and other amounts due the employees of Owner or the manager of the Project for the period prior to the Contribution Date, whether as hourly pay, salaries, overtime, bonus, vacation or sick pay, severance pay, pensions or otherwise, and all amounts due for the payment of employment taxes with respect thereto, shall be paid by Owner on or prior to the Contribution Date, or, if not paid, an amount equal to such entire unpaid liability shall be paid in cash at Closing.
(h) All costs and expenses incurred by Owner, the Holding Company or Contributor prior to the Contribution Date in connection with the transactions contemplated herein and the performance of its obligations under this Agreement, including, without limitation, attorney and other professional fees, the Acquisition Loan, and the costs and expenses payable by Owner, Holding Company or Contributor hereunder (including, without limitation, the costs and expenses specified in Section 19.1 to be paid by Contributor), shall be paid by Contributor and shall not be charged to, or the responsibility of SCOLP.
(i) The amount of all escrows and reserves required under the Mortgage Documents which are on deposit on the Contribution Date shall be paid by SCOLP to the Contributor on the Contribution Date or, if not paid, an amount equal to such escrows and reserves shall be credited to Contributor in connection with the cash adjustment at Closing.
(j) In the event any rental discounts, leasing incentives or other credits, incentives or obligations have been provided to any of the occupants at the Project for any reason, and the same have not been fully satisfied by Closing, SCOLP shall be entitled to a credit or payment at Closing in the amount of such discounts, incentives or obligations. In all events, all debts, obligations, charges, liabilities and liens with respect to the Project shall be fully paid and satisfied or credited or paid to SCOLP on the Contribution Date, except only the Existing Mortgage and the lien for taxes not yet due and payable.
6.2 On or prior to the Contribution Date, Contributor (directly or indirectly through the Holding Company) shall be entitled to a distribution from Owner in an amount equal to all of the cash and cash equivalent assets held by Owner as of the Contribution Date, after deduction for any and all costs, expenses and prorations payable by or chargeable against the ▇▇▇▇▇▇ Entities hereunder. The Owner shall not distribute any other right, claim, cause of action or asset after the Effective Date of this Agreement.
6.3 If within ninety (90) days after the Closing either SCOLP or Contributor discovers any inaccuracies or errors in the pro rations or adjustments done at Closing pursuant to Sections 6.1 and/or 6.2, such party shall notify the other party of such inaccuracy or error by written notice including reasonable detail of the appropriate calculation. The parties shall attempt, in good faith, to resolve any issues with respect to delinquent revenue and the prorations and adjustments done at Closing pursuant to Section 6.1. After the parties resolve any such issues or, in the event the parties are unable to resolve issues, a final judgment has been rendered with respect to such matter without timely appeal or after all appeals timely made are fully resolved, SCOLP and Contributor shall promptly take all action and pay all sums necessary so that such pro rations and adjustments shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Contribution Date. Prorations and adjustments to prorations are not subject to, or included within, the Minimum Amount or Maximum Amount set forth in Section 7.3(d).