Apportionments. (a) The following shall be apportioned between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the "Apportionment Date") on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year: (i) real estate taxes, sewer rents and taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); and (ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York. (b) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding year to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days based on such recalculation. If as of the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date, with apportionment as of the Apportionment Date. (c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein. (d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading. (e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment. (f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein. (g) The provisions of this Section 7 shall survive the Closing.
Appears in 1 contract
Apportionments. (a) Except as otherwise expressly provided in this Agreement, all income and expenses of the Hotel with respect to the period prior to the Closing Date shall be for the account of Hotel Seller, and all income and expenses of the Hotel with respect to the period from and after the Closing Date shall be for the account of Purchaser. The following specific apportionments shall be apportioned made between Seller and Purchaser the parties at the Closing as of 11:59 p.m. on the day immediately preceding prior to the Closing Date (the "“Apportionment Date") on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:”).
(ia) real estate taxes, sewer rents and personal property taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and special assessments and any other governmental taxesvault charges, charges or assessments levied or assessed against the Premises (collectivelyif any, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); and
(ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed; provided that if a tax b▇▇▇ for the current period has not yet been issued, the apportionment shall be based on the prior year’s tax b▇▇▇ with a re-proration subsequent to Closing promptly after a current tax b▇▇▇ has been issued. If The parties acknowledge that the Hotel and the Land are not assessed for real estate taxes separately from other property owned by the Land Seller; therefore, the parties agree that the share of real estate taxes fairly allocated to the Hotel and the Land for purposes of the Closing and Pro-Ration Statement shall be agreed upon by the parties before the end of the Feasability Period. At the request of either party to this Agreement, the other party shall cooperate, at no cost to itself, with any application for tax refunds or abatements for the Property. Any tax refunds or abatements in respect of periods prior to the Closing Date shall occur either before an assessment is made or a tax rate is fixed will belong to Seller;
(b) water and sewer service charges and charges for the tax period in which the Closing Date occursgas, the apportionment of such Property Taxes based thereon electricity, telephone and all other public utilities (provided that no adjustment shall be made for unmetered gas or fuel oil stored on the Land, all of which shall be transferred with the Hotel at no additional cost to Purchaser). If there are meters measuring the Closing Date by applying the tax rate for the preceding year consumption of water, gas or electric current, Seller, not more than one day prior to the latest assessed valuationApportionment Date, butshall cause such meters to be read, promptly and shall pay all utility bills for which Seller is liable upon receipt of statements therefor; where there are no such meters, or where the applicable utility is unable or unwilling to read the meters prior to Closing, such charges for utilities shall be apportioned between the parties based upon the number of days in the then current billing period before and after the assessment and/or tax rate for the current year are fixed, the apportionment thereof Apportionment Date. Purchaser shall be recalculated responsible for causing such utilities and Seller or Purchaser, as the case may be, shall make an appropriate payment services to the other within five (5) business days based on such recalculation. If be changed to its name effective as of the Closing Date the Premises or any portion thereof and shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien liable for and has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to all utility bills for services rendered from and after the Closing Date Date;
(c) amounts which have been paid or are payable under the Service Contracts, Equipment Leases and Space Leases assigned to and assumed by Purchaser shall pay the installments which are due at Closing;
(d) Advance Deposits and other amounts received by Seller (whether paid in cash or by credit card) in respect of Rooms Agreements and Bookings to be fulfilled on or after the Closing Date, with apportionment as of the Apportionment Date.
(c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.;
(e) Charges for all electricity, steam, gas prepaid operating and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.advertising expenses;
(f) Not more than ten (10) nor fewer than seven (7) business days prior commissions of credit and referral organizations related to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") bookings for which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.receive payment;
(g) The provisions of this Section 7 shall survive the Closingoutstanding gift certificates; and
(h) all other charges and fees customarily prorated and adjusted in similar transactions.
Appears in 1 contract
Apportionments. All real estate taxes (aincluding assessments made by reason of the fact that the Property is located in any special taxing district or within a community development authority) The following relating to the Property shall be apportioned paid or shall be prorated between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (Date. For purposes of this proration, Purchaser shall be deemed to own the "Apportionment Date") on Property and therefore be responsible for the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:
(i) real estate taxes, sewer rents and taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against for the Premises (collectively, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); and
(ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes shall be apportioned on the basis of the fiscal period for which assessedentire Closing Date. If the Closing Date shall occur either before an assessment is made or a the tax rate or assessment is fixed for the tax period year in which the Closing Date occurs, the apportionment of such Property Taxes based thereon taxes shall be made at upon the Closing Date by applying basis of the tax rate or assessment for the immediately preceding tax year applied to the latest assessed valuation, but, valuation and Seller and Purchaser shall readjust real estate taxes promptly after the assessment and/or determination of the tax rate or assessment for the current tax year are fixed, the apportionment thereof shall be recalculated and Seller or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days based on such recalculation. If as of in which the Closing Date occurs (with such obligation to survive the Premises or any portion thereof Closing). Any apportionments and prorations which are not expressly provided for in this Section shall be affected by any special or general assessments which are or may become payable made in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date, with apportionment as of the Apportionment Date.
(c) Promptly following the execution of this Agreement, Seller shall prepare and file accordance with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcelscustomary practice in Loudoun County, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”)Virginia. All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on On or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following before the Closing Date, Seller and Purchaser will shall jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (schedule showing the "Final Closing Statement") setting forth Purchase Price, the final determination of Deposit, the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner expenses to be paid by Seller and Purchaser pursuant to this Agreement (the “Closing Statement”). Any net adjustment in which such items favor of Purchaser shall be determined and paid), if anycredited against the Purchase Price on the Closing Date. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The Any net amount due adjustment in favor of Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash or cash equivalent on the Closing Date by the Party obligated therefor within five (5) business days following that Party's receipt Purchaser to Seller. A copy of the approved Final Closing Statement. The adjustments, prorations and determinations Statement agreed to upon by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to signed by Seller and Purchaser, which items shall be determined Purchaser and paid in delivered to the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following Escrow Agent on the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.
(g) The provisions of this Section 7 shall survive the Closing.
Appears in 1 contract
Sources: Purchase Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Apportionments. (a) Except as otherwise expressly provided in this Agreement, all income and expenses of the Hotel and the Golf Course with respect to the period prior to the Closing Date shall be for the account of Owner, and all income and expenses of the Hotel and the Golf Course with respect to the period from and after the Closing Date shall be for the account of Buyer. The following specific apportionments shall be apportioned made between Seller and Purchaser the Parties at the Closing as of 11:59 p.m. midnight on the day immediately preceding the Closing Date (the "“Apportionment Date") on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:Time”):
(i) real estate taxes, sewer rents and taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district Property taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); and
(ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed. If the Closing Date shall occur either before an assessment is made or ; provided that if a tax rate is fixed ▇▇▇▇ for the tax current period in which the Closing Date occurshas not yet been issued, the apportionment shall be based on Owner’s reasonable estimate of such Property Taxes items based thereon shall be made at on the Closing Date by applying assessed value of the tax rate Asset taxed for the preceding fiscal year which it is being assessed, or the prior year’s tax ▇▇▇▇, in either case with a re-proration subsequent to the latest assessed valuation, but, promptly Closing within thirty (30) days after the assessment and/or a current tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller ▇▇▇▇ has been received by either Owner or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days based on such recalculationBuyer. If as Any property tax in respect of the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due periods prior to the Closing Date and Purchaser shall pay will be the installments which are due responsibility of Owner. Taxes for any taxable period that includes (but does not end on or after the day immediately preceding the Closing Date) shall be allocated to the period prior to the Closing Date based on the amount of such taxes for the entire taxable period multiplied by a fraction, with apportionment as the numerator of which is the Apportionment Datenumber of days in the portion of such period ending on the day immediately preceding the Closing Date and the denominator of which is the total number days in such period.
(cii) Promptly following the execution of this AgreementWater and sewer service charges and charges for gas, Seller shall prepare electricity, telephone and file with the New York City Department of Finance (and any all other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation public utilities shall be borne solely by apportioned between Owner and Buyer based on the Seller, and Purchaser shall have time at which the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Sellercorresponding services are consumed. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at measuring the Premisesconsumption of water, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall gas or electric current to be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current readinghereunder, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller Owner shall endeavor to obtain and deliver cause such meters to Purchaser at Closing a current water meter reading.
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable read as of the Closing Date, and Owner shall pay all utility charges relating to the period before such meter reading upon receipt of statements therefor. Buyer shall be responsible for causing such utilities and services to be charged to Buyer effective as of the Closing Date, and Buyer shall be liable for and shall pay all utility charges for such services rendered from and after the Closing Date. To the extent any such meters are not read as of the Closing Date, the corresponding charges with respect to any Utilitythe Hotel and the Golf Course shall be prorated effective as of the Closing Date by utilizing an estimate of such charges reasonably approved by both Buyer and Owner based on prior bills with respect thereto. Any deposits or credits made or issued with respect to the foregoing services relating to the period prior to the Closing Date shall be credited to Owner. Any apportionment made pursuant to this Section 14.1(iii) shall be subject to adjustment as provided in Section 14.10 below.
(iii) Amounts which have been prepaid or are payable under (a) the Golf Course Lease; (b) the Power Plant Equipment Lease; and (c) the other Assumed Contracts, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis between Owner and Buyer as of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustmentClosing Date.
(fiv) Not more than ten All prepaid operating expenses shall be apportioned between Owner and Buyer as of the Closing Date.
(10v) nor fewer than Buyer shall receive a credit at Closing for the reasonable, documented cost to be incurred by Buyer for replacing the items at the Hotel and the Golf Course bearing the Ritz Carlton name and/or logo and used in the operation of the Hotel as of the Closing Date (collectively, the “Ritz Carlton Name Property”) with comparable items without such name and logo; provided, however, that (a) the Buyer’s total credit for such costs shall in no event exceed an amount equal to the lesser of (1) the Hotel’s cost of acquisition of the Ritz Carlton Name Property being replaced; or (2) Two Hundred Fifty Thousand United States Dollars (US$250,000) and (b) merchandise offered for sale at the Hotel and/or the Golf Course as of the Closing Date and bearing the Ritz Carlton name or logo (the “Ritz Carlton Merchandise”) shall not be deemed to constitute part of the Ritz Carlton Name Property. Owner shall, at its sole cost and expense, cause all of the Ritz Carlton Name Property and all such Ritz Carlton Merchandise to be removed from the Hotel and the Golf Course on or before the Closing Date, if practical, or if not practical within seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date; provided, Seller however, that Buyer shall receive reasonable prior written notice of such removal and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance such removal shall (the "Final Closing Statement"x) setting forth the final determination be undertaken during reasonable business hours, (y) not interfere with Buyer’s renovation of the adjustments Hotel and prorations provided (z) be undertaken in a manner that does not damage the Hotel and/or the Golf Course. Owner shall have the right to store during such period, at Owner’s sole cost, expense and risk, any Ritz Carlton Name Property and Ritz Carlton Merchandise remaining at the Hotel or Golf Course after the Closing Date; provided, however, that Buyer shall have the right to reasonably direct Owner where at the Hotel and/or the Golf Course to store such remaining Ritz Carlton Name Property or Ritz Carlton Merchandise, and Buyer shall have no liability to Owner or Operator for herein any loss, damage or destruction of or to any such remaining Ritz Carlton Name Property or Ritz Carlton Merchandise.
(vi) All other income, expense, charges and setting forth any items which are not capable of being determined at such time (and the manner in which such items fees shall be determined apportioned between Owner and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement Buyer as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations Apportionment Time and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except customary for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided apportionment of similar items for hereinsimilar transactions.
(g) The provisions of this Section 7 shall survive the Closing.
Appears in 1 contract
Sources: Hotel Asset Purchase Agreement (Playa Hotels & Resorts B.V.)
Apportionments. (a) A. The following shall be apportioned between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the "Apportionment Date") on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:
(i) a. real estate taxes, personal property taxes, sewer rents and taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above)fire service charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental tax, including, but not limited to, branch taxes, charges capital taxes and income taxes, if applicable, or assessments charge levied or assessed whatsoever against the Premises Properties (collectively, the "Property Properties Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); andB hereof;
(ii) such other items as are customarily b. water charges to be apportioned in accordance with real estate closings Section C hereof;
c. charges for electricity, telephone, television, cable television, steam, gas and any other utilities (collectively, "Utilities") made by the utility companies servicing the Properties to be apportioned based on a meter reading obtained by Seller on or near to the Apportionment Date or on the basis of commercial properties the most recent bills that are available, and transferable utility and other deposits, if any, for which Seller shall be reimbursed if same be assigned, but all amounts refundable under unassigned or unassignable utility and other arrangements shall be delivered to Purchaser for application against deposits for such utilities required of Purchaser;
d. amounts paid or payable (but only the current portion thereof to the extent properly apportionable) under the Franchise Agreements, Service Contracts, Equipment Leases, and Billboard Leases;
e. room charges and other guest charges incurred on or before the Apportionment Date to be apportioned and collected in accordance with Section D hereof;
f. travel agents' commissions, if any;
g. all amounts payable by the Seller in respect of the Employees which require apportionment including, without limiting the generality of the foregoing, accrued but unpaid vacation pay earned prior to the Apportionment Date, premiums for unemployment insurance, premiums for worker's compensation, provincial health taxes, Canada Pension Plan and Quebec Pension Plan premiums and accrued but unpaid wages, salaries, benefits, commissions and other remuneration and shall be reflected in the City Working Capital Adjustment; rent and all other charges due under the Space Leases shall be apportioned in accordance with Section F;
h. all rents and other obligations and charges under the Ground Lease, and all prepaid rents and security and other deposits under the Ground Lease, to be apportioned in accordance with Section G hereof;
i. amounts paid for transferable licenses, if any; and
j. value of New Yorkfuel stored on the Properties, State of New Yorkat the price then charged by Seller's supplier, including any taxes, based on a tank reading obtained by Seller on the Apportionment Date.
(b) Property B. Properties Taxes shall be apportioned on the basis of the fiscal period for which assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Properties Taxes based thereon shall be made at calculated on the Closing Date by applying basis of the tax rate for the preceding year to the latest assessed valuationprior year's Properties Taxes, but, promptly after the assessment and/or and tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller the Working Capital Adjustment shall be increased or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days decreased based on such recalculation. If as of the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date, with apportionment as of the Apportionment Date.
(c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) C. If there are water meters at the PremisesProperties, Seller shall endeavor to have the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) company servicing each Properties read the meters on the basis of an actual reading done within ten (10) days or immediately prior to the Apportionment Date, or (ii) if . All charges based on such final reading has not been made, on shall be reflected in the basis of 110% of the last available readingWorking Capital Adjustment and Purchaser shall be responsible for all charges thereafter. If such readings are not obtainable, then the apportionment is not calculation of Working Capital Adjustment shall be -CC-4- C/M: 11752.0002 350869.22 postponed until such time as actual readings are obtained or in the alternative, Purchaser and Seller may read the meters themselves and adjust the amount based on an actual current reading, then upon usage over the taking of a subsequent actual reading, billing period that includes the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller Closing Date. All unpaid water bills in Seller's possession shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver turned over to Purchaser at the Closing a current water meter readingand shall be paid by Purchaser at the Closing, which shall be reflected in the Working Capital Adjustment.
(e) Charges D. Income from the rental of rooms shall be properly credited to Seller to the extent attributable to any period through the Apportionment Date. Room charges for all electricity, steam, gas the night commencing on the Apportionment Date and ending on the morning of the Closing Date shall belong to Purchaser. Any lost revenues suffered by Purchaser in connection with Seller's "Eleventh Night Free" program or other similar marketing schemes shall be properly reflected in the Working Capital Adjustment. Income from food and beverage and other utility sales or services through midnight of the Apportionment Date shall be properly credited to Seller. Income from food and beverage and other sales or services on the Closing Date shall belong to Purchaser. No cash adjustment shall be made at the Closing on account of such income.
E. Prepaid minimum rents and other fixed charges payable under the Space Leases for the month in which the Closing occurs shall be apportioned and reflected in the Working Capital Adjustment. If any tenant is in arrears in the payment of rent or other fixed charges due for months prior to the month in which the Closing occurs, any payments on account of rent or such other fixed charges received by Purchaser from such tenant after the Closing shall be applied first to rent and other charges due for the month in which such payments are received and then to preceding months for which there are arrearages (collectivelyalways to the most recent first). If any payments of rent or other fixed charges received by Seller or Purchaser after the Closing are payable to the other party by reason of this allocation, "Utilities"the appropriate sum (less a proportionate share of any reasonable lawyers' fees, costs and other expenses incurred in the collection thereof) shall be billed promptly reflected in the Working Capital Adjustment. At the Closing, Seller shall furnish to Seller's account up Purchaser a complete and correct schedule of all minimum rents and other fixed charges which are then due and payable but which have not been paid. Percentage rents and other variable charges under the Space Leases, such as payments for real estate taxes and other expenses, which are not fixed in amount, shall be adjusted when and as received based upon the number of days in the payment period that each party owned the Properties. Any security deposits or advance payments of rent held by Seller under the Space Leases shall be assigned to Purchaser at the Closing and reflected in the Working Capital Adjustment.
F. Seller shall be responsible for all accrued but unpaid vacation pay, premiums for unemployment insurance, premiums for workers compensation, provincial health taxes, Canada Pension Plan and Quebec Pension Plan premiums, termination pay, severance pay and accrued but unpaid wages, salaries, bonuses, commissions and other remuneration and benefits (a) with respect to Employees terminated prior to Closing and (b) with respect to Employees retained after Closing (collectively "Accrued Benefits") and shall be reflected in the Working Capital Adjustment.
G. All rent and other fixed charges under the Ground Lease shall be prorated as of the Apportionment Date. Any prepaid rent, security and other deposits under the Ground Lease (including interest thereon, to the Apportionment Date and, extent payable under the Ground Lease) shall be assigned to Purchaser and reflected in the Working Capital Adjustment at the Closing.
H. Any errors or omissions in computing apportionments at Closing shall be promptly corrected as soon as they are discovered and any dispute as to the treatment of any errors or omissions shall be dealt with in accordance with Section 6.D of the Agreement. Purchaser agrees to indemnify and hold Seller harmless from and after against any liability, cost or expense resulting from Purchaser's failure to make any payment for which it has received a credit pursuant to this Section.
I. It is the intent and agreement of the parties that all costs and expenses of operating the Properties and the Business, and all liabilities and revenues therein be for the account of Seller through the Apportionment Date, all utilities shall be billed to Purchaser's accountand for the account of Purchaser thereafter. If for any reason such changeover in billing is not practicable as CONTRACT OF SALE by and among CAPITAL PROPERTIES LIMITED PARTNERSHIP, SELLER, SYNDICATED CAPITAL PROPERTIES, INC. SYNCAP PROPERTIES INC. TEGRAD PROPERTIES (WINNIPEG) INC. TEGRAD MONTREAL I INC. 1002370 ONTARIO, INC. and CHARTWELL CANADA CORP., PURCHASER. Properties: DATED AS OF JULY 17, 1996 C/M: 11752.0002 350869.22 TABLE OF CONTENTS Page 1. Sale and Purchase, Description of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.
(g) The provisions of this Section 7 shall survive the Closing.Properties...................... 1
Appears in 1 contract
Apportionments. (a) Except as otherwise expressly provided in this Agreement, all income and expenses of the Hotel with respect to the period prior to the Closing Date shall be for the account of Hotel Seller, and all income and expenses of the Hotel with respect to the period from and after the Closing Date shall be for the account of Purchaser. The following specific apportionments shall be apportioned made between Seller and Purchaser the parties at the Closing as of 11:59 p.m. on the day immediately preceding prior to the Closing Date (the "“Apportionment Date") on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:”).
(ia) real estate taxes, sewer rents and personal property taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and special assessments and any other governmental taxesvault charges, charges or assessments levied or assessed against the Premises (collectivelyif any, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); and
(ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed; provided that if a tax ▇▇▇▇ for the current period has not yet been issued, the apportionment shall be based on the prior year’s tax ▇▇▇▇ with a re-proration subsequent to Closing promptly after a current tax ▇▇▇▇ has been issued. If The parties acknowledge that the Hotel and the Land are not assessed for real estate taxes separately from other property owned by the Land Seller; therefore, the parties agree that the share of real estate taxes fairly allocated to the Hotel and the Land for purposes of the Closing and Pro-Ration Statement shall be agreed upon by the parties before the end of the Feasability Period. At the request of either party to this Agreement, the other party shall cooperate, at no cost to itself, with any application for tax refunds or abatements for the Property. Any tax refunds or abatements in respect of periods prior to the Closing Date shall occur either before an assessment is made or a tax rate is fixed will belong to Seller;
(b) water and sewer service charges and charges for the tax period in which the Closing Date occursgas, the apportionment of such Property Taxes based thereon electricity, telephone and all other public utilities (provided that no adjustment shall be made for unmetered gas or fuel oil stored on the Land, all of which shall be transferred with the Hotel at no additional cost to Purchaser). If there are meters measuring the Closing Date by applying the tax rate for the preceding year consumption of water, gas or electric current, Seller, not more than one day prior to the latest assessed valuationApportionment Date, butshall cause such meters to be read, promptly and shall pay all utility bills for which Seller is liable upon receipt of statements therefor; where there are no such meters, or where the applicable utility is unable or unwilling to read the meters prior to Closing, such charges for utilities shall be apportioned between the parties based upon the number of days in the then current billing period before and after the assessment and/or tax rate for the current year are fixed, the apportionment thereof Apportionment Date. Purchaser shall be recalculated responsible for causing such utilities and Seller or Purchaser, as the case may be, shall make an appropriate payment services to the other within five (5) business days based on such recalculation. If be changed to its name effective as of the Closing Date the Premises or any portion thereof and shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien liable for and has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to all utility bills for services rendered from and after the Closing Date Date;
(c) amounts which have been paid or are payable under the Service Contracts, Equipment Leases and Space Leases assigned to and assumed by Purchaser shall pay the installments which are due at Closing;
(d) Advance Deposits and other amounts received by Seller (whether paid in cash or by credit card) in respect of Rooms Agreements and Bookings to be fulfilled on or after the Closing Date, with apportionment as of the Apportionment Date.
(c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.;
(e) Charges for all electricity, steam, gas prepaid operating and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.advertising expenses;
(f) Not more than ten (10) nor fewer than seven (7) business days prior commissions of credit and referral organizations related to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") bookings for which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.receive payment;
(g) The provisions of this Section 7 shall survive the Closingoutstanding gift certificates; and
(h) all other charges and fees customarily prorated and adjusted in similar transactions.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Apportionments. (a) A. The following shall be apportioned between Seller and Purchaser at the Closing with respect to the Premises as of 11:59 p.m. on of the day immediately preceding the Closing Date (Date, and the "Apportionment Date") on net amount thereof either shall be paid by Purchaser to Seller or credited to Purchaser, as the basis of case may be, at the actual number of days of Closing:
i. Common Charges, including any special assessments then in effect, if any, for the month in which shall have elapsed as of the Closing Date occurs and based upon any other outstanding Common Charges or assessments;
ii. Real property taxes and assessments (or installments thereof), payments required to be made to any business improvement district (“BID taxes”) and vault charges, except those required by Leases to be paid by a Tenant directly to the actual number entity imposing same;
iii. Water rates and charges, except those required by Leases to be paid by a Tenant directly to the entity imposing same;
iv. Sewer taxes and rents, except those required by Leases to be paid by a Tenant directly to the entity imposing same;
v. Rents (as hereinafter defined), if, as and when collected, in accordance with Section 7(F) hereof;
vi. Leasing Costs (hereinafter defined), in accordance with Section 20(B) hereof;
vii. Payments due under any Surviving Contracts;
viii. wages, sick days, vacation days and employee benefit fund contributions (other than and not including pension withdrawal liability, which is addressed in Article 11 hereof); and
ix. All other items customarily apportioned in connection with the sale of days in the month and a 365 day year:similar properties similarly located.
(i) B. Apportionment of real estate property taxes, sewer rents and BID taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above)charges, sewer taxes and rents and vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); and
(ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes shall be apportioned made on the basis of the fiscal period year for which assessed. If the Closing Date shall occur either before an assessment is made the real property tax rate, BID taxes, water rates or a tax rate is charges, sewer taxes or rents or vault charges are fixed, apportionment for any item not yet fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon shall be made at on the Closing Date by applying basis of the real property tax rate rate, BID taxes, water rates and charges, sewer taxes and rents or vault charges, as applicable, for the preceding year applied to the latest assessed valuation. After the real property taxes, butBID taxes, promptly water rates and charges, sewer taxes and rents and vault charges are finally fixed, Seller and Purchaser shall make a recalculation of the apportionment of same after the assessment and/or tax rate for the current year are fixedClosing, the apportionment thereof shall be recalculated and Seller or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days based on upon such recalculation. If as .
C. The amount of any of the unpaid taxes, assessments, water rates or charges, sewer rents and vault charges which Seller is obligated to pay and discharge, with interest and penalties thereon (if any) to the Closing Date may, at Seller’s option, be allowed to Purchaser out of the Premises balance of the Purchase Price, provided that official bills therefor with interest and penalties thereon (if any) are furnished by Seller at the Closing and provided that the Title Insurer will omit same as exceptions from Purchaser’s title insurance policy, at no additional cost or expense to Purchaser.
D. If any refund of real property taxes, BID taxes, water rates or charges, sewer taxes or rents or vault charges is made after the Closing Date covering a period prior to and/or after the Closing Date, the same shall be applied first to the reasonable out-of-pocket costs incurred by Seller or Purchaser, as the case may be, in obtaining same and the balance, if any, of such refund, to the extent received by Purchaser, shall be paid to Seller to the extent that any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which is attributable to the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due period prior to the Closing Date and, to the extent received by Seller, shall be paid to Purchaser to the extent that any portion thereof is attributable to the period commencing on the Closing Date. Any payment to Seller pursuant to the immediately preceding sentence shall be net of any amount payable to a Tenant in accordance with its Lease (and any payment to Purchaser by Seller pursuant to the immediately preceding sentence shall include any amount payable to a Tenant in accordance with its Lease, and Purchaser shall pay any such amounts received by Purchaser from Seller to the installments extent owing to such Tenant). Purchaser hereby agrees to indemnify, defend and hold harmless Seller against any claims, losses, costs and expenses incurred by Seller to the extent resulting from Purchaser’s failure to remit such amount payable to such Tenant pursuant to its Lease promptly after receipt thereof from Seller by Purchaser (including, without limitation, any reasonable attorneys’ fees, disbursements and court costs). Purchaser’s indemnification obligations hereunder shall survive the Closing and delivery of the Deeds.
E. If there are meters measuring water consumption or sewer usage at the Property (other than meters measuring water consumption or sewer usage for which a Tenant is obligated to pay under its Lease directly to the taxing authority or utility), Seller shall attempt to obtain readings to a date not more than thirty (30) days prior to the Closing Date. If such readings are due on or not obtained (and if such readings are obtained, then with respect to any period between such reading and the Closing Date), water rates and charges and sewer taxes and rents, if any, shall be apportioned based upon the last meter readings, subject to reapportionment when readings for the relevant period are obtained after the Closing Date, with apportionment as . If any of the Apportionment Date.
(c) Promptly following Tenants pay electric charges based on a submeter for their electric consumption, then Seller shall cause any such submeter to be read as close as possible to the execution Closing Date and upon completion of this Agreementsuch reading, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇▇▇ ▇▇ each such Tenant electric charges, based on such reading. At the Closing, Seller shall provide the Purchaser with documentation as to any such readings and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇for submetered electric charges.
F. To the extent that Seller or Purchaser receives Rents after the Closing Date, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to same shall be sold held in trust by Seller to or Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown applied in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt order of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner priority set forth in this Section 7 7(F).
i. The following terms shall be as defined herein: “Base Rents”: fixed rent, and except for other amounts of a fixed nature (which may include, without limitation, electric inclusion and supplemental water, HVAC and condenser water charges paid or payable pursuant by Tenants); “Overage Rents”: a percentage of the Tenant’s business during a specified annual or other period (sometimes referred to this Agreement pursuant as “percentage rent”), so-called “escalation rent”, and additional rent based upon increases in or otherwise attributable to provisions real estate and BID taxes, operating expenses, utility costs, a cost of living index or ▇▇▇▇▇▇’▇ wages or otherwise, but which survive shall in no event include Reimbursable Payments (as hereinafter defined); “Reimbursable Payments”: overtime heat, air conditioning or other utilities or services; freight elevator; electric inclusion and adjustments related to electric usage (such as rate and/or fuel adjustments and survey); submetered electric; supplemental water, HVAC, and condenser water charges; services or repairs, and labor costs associated therewith, to the extent to which a Tenant is obligated to reimburse the landlord under its Lease or for which a Tenant has separately contracted with Seller or its agent; true-ups on account of escalation and/or additional rent for years prior to the year in which the Closing occurs; amounts payable for above standard cleaning; and all other than this Section 7. Prior items that are payable to Seller as reimbursement or payment for above standard or overtime services (but which amounts shall not be treated as Reimbursable Payments if already included in a Tenant’s Base Rents); and following the Closing Date“Rents”: all amounts due and owing from Tenants, each Party shall provide the other with such information as the other shall reasonably request (however characterized, including, without limitation, access to the booksBase Rents, records, files, ledgers, information Overage Rents and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for hereinReimbursable Payments.
(g) The provisions of this Section 7 shall survive the Closing.
Appears in 1 contract
Sources: Sale Purchase Agreement (American Realty Capital New York Recovery Reit Inc)
Apportionments. (a) 7.01 The following shall be apportioned between Seller and Purchaser with respect to the Property as of 11:59 p.m. 12:01 a.m., on the day immediately preceding of closing, as if Purchaser were vested with title to the Closing Date Property during the entire day upon which closing occurs:
(a) taxes and assessments levied against the "Apportionment Date"Property;
(b) gas, electricity and other utility charges for which Seller is liable, if any, such charges to be apportioned at closing on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:
(i) real estate taxes, sewer rents and taxes, water rates and charges (most recent meter reading occurring prior to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c)closing; and
(iic) such any other operating expenses or other items as pertaining to the Property which are customarily apportioned in accordance with real estate closings of commercial properties prorated between a purchaser and a seller in the City of New York, State of New Yorkarea in which the Property is located.
(bd) Property Taxes Notwithstanding the foregoing, Purchaser shall be apportioned on responsible for all taxes and assessments, gas, electric and other utilities charge and all operating expenses or items pertaining to the basis Property during the period of its post-Closing possession, pursuant to a Surrender Agreement to be executed and delivered at the fiscal period for which assessedClosing.
7.02 Notwithstanding anything contained in the foregoing provisions:
(a) Any taxes paid at or prior to closing shall be prorated based upon the amounts actually paid. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding year to the latest assessed valuation, but, promptly after the assessment and/or tax rate taxes and assessments for the current year are have not been paid before closing, Seller shall be charged at closing an amount equal to that portion of such taxes and assessments which relates to the period before closing and Purchaser shall pay the taxes and assessments prior to their becoming delinquent. Any such apportionment made with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed shall be based upon the tax rate and/or assessed valuation last fixed. To the extent that the actual taxes and assessments for the current year differ from the amount apportioned at closing, the apportionment parties shall make all necessary adjustments by appropriate payments between themselves following closing.
7.03 If on the date hereof the Property or any part thereof shall be recalculated and Seller or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days based on such recalculation. If as of the Closing Date the Premises or any portion thereof shall be have been affected by any a special assessment or general assessments which are or may become payable in installments annual installments, of which the first installment is then a lien and charge or lien, or has become payablebeen paid, Seller shall pay then for the purposes of this Agreement all the unpaid installments of any such assessments assessment, including those which are to become due prior to the Closing Date and Purchaser shall pay the installments which are due on or payable after the Closing Date, with apportionment as of the Apportionment Date.
(c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on payable by the basis of an actual reading done within ten (10) days prior Purchaser at or subsequent to the Apportionment Dateclosing (subject, or (ii) if such reading has not been madehowever, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, adjustment as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter readingprovided in Section 7.01 hereof).
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.
(g) The provisions of this Section 7 shall survive the Closing.
Appears in 1 contract
Apportionments. (a) The following shall be apportioned between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (Date, provided that to the "Apportionment Date") on extent any such amount to be apportioned is the basis obligation of Seller as tenant under the actual number of days of Lease, the month which apportionment shall have elapsed occur as of the date Seller ceases to be required to pay the same under the Lease and, to that extent, no payment shall be due in respect thereof on the Closing Date and based upon the actual number of days in the month and a 365 day yearDate:
(i) real estate taxes, payments in lieu of taxes, sewer rents and taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above)charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises Twenty First Floor Unit (collectively, "“Property Taxes"”), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c)paragraphs (b) and (c) of Article 11 hereof;
(ii) all other Common Charges (as defined in the Declaration) and any other prepaid utility charges not included in Common Charges with respect to the Twenty First Floor Unit; and
(iiiii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, and State of New York.
(b) Property Taxes shall be apportioned on the basis of the fiscal tax period for which assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding year to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days based on such recalculation. If as of the Closing Date the Premises Twenty First Floor Unit or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments assessment which are due prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date, with apportionment as of the Apportionment Date.
(c) Promptly following In the execution event of this Agreement, Seller shall prepare any conflict between the foregoing paragraph (b) and file with the New York City Department of Finance (terms and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist provisions of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane Condominium Documents and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation Lease with respect to Lot 58this subject, from the terms and after the closing, to be reduced as a result provisions of the conveyance to Purchaser of the Fee Above a Plane Condominium Documents and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event Lease shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated hereingovern.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, At or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent Seller and Purchaser and/or their respective agents or designees will jointly prepare a preliminary closing statement (the "“Preliminary Closing Statement"”) which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance Balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicableClosing. Within sixty one hundred twenty (60120) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory in form and substance to Seller and Purchaser in form and substance (the "“Final Closing Statement"”) setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party party obligated therefor within five thirty (530) business days following that Party's party’s receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto parties hereto, except for (i) any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and PurchaserStatement, which items shall be determined and paid in the manner set forth in this Section 7 the Final Closing Statement when such items may be determined, (ii) any amounts payable in respect of the Leaseback Premises and except for (iii) other amounts payable pursuant to this Agreement hereunder pursuant to provisions of this Agreement which expressly survive the Closing other than this Section 7Closing. Prior to and following the Closing Date, each Party party shall provide the other (and shall cause the Condominium to provide the other) with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein. If the parties are unable to agree on these adjustments and prorations, then any dispute with respect thereto shall be resolved by arbitration before a single arbitrator in the Borough of Manhattan, City of New York, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) (Expedited Procedures). No arbitrator shall have the power to add to, subtract from, or otherwise have the power to modify the provisions of this Agreement. The decision in any such arbitration shall be binding and conclusive on Seller and Purchaser. Judgment and equitable relief may be had on the decision and award of the arbitrator so rendered in any court of competent jurisdiction. Notwithstanding anything to the contrary contained in the Commercial Arbitration Rules, notices to Seller and Purchaser will be given in accordance with the notice provisions of this Agreement. In no event will either party be entitled to consequential or punitive damages with respect to any matter to be resolved by arbitration. Each party shall pay its own costs, fees and expenses in accordance with any arbitration. The fees and expenses of the arbitrator and AAA shall be shared equally by Seller and Purchaser, except if the arbitrator shall determine that one party was the prevailing party and that its share of such fees and expenses should be paid by the non-prevailing party, then the non-prevailing party shall pay such fees and expenses.
(e) At the Closing, Seller shall have the right to prepay any amounts payable by Seller under the Lease for such period, if any, as Seller may elect in its sole discretion. If Seller exercises such right, then Purchaser shall receive a credit against the Balance in the amount of such prepayment. Seller shall give Purchaser not less than three (3) Business Days’ notice of any intention by Seller to prepay amounts under the Lease.
(f) All prorations shall be complete and final no later than six (6) months after Closing or, if applicable, the Lease Expiration Date.
(g) The provisions of this Section 7 Article 11 shall survive the Closing. ARTICLE 12.
Appears in 1 contract
Sources: Contract of Sale
Apportionments. (a) The following shall be apportioned between Seller With respect to each JV Property, all revenues and Purchaser as of expenses related to the JV Property operations accruing or relating to the period up to and including 11:59 p.m. (New York time) on the day immediately preceding the Closing Date (“Cut-Off Time”) shall belong to the "Apportionment Date"applicable Seller. All revenues and expenses from JV Property operations accruing or relating to the period after the Cut-Off Time shall belong to Purchaser. Without limiting the foregoing, the following shall apply:
(a) on With respect to each JV Property, all non-delinquent ad valorem real property and personal property general and special taxes and assessments for such Property for the basis current assessment year of the actual number of days of applicable taxing authority in which the month which Closing Date occurs shall have elapsed be prorated between the applicable Seller and Purchaser as of the Closing Date, based on their respective days of ownership of such Property during such assessment year. If the exact amount of taxes is not known at Closing, the proration will be based on an amount equal to 100% of the prior assessment year’s taxes and shall be adjusted and reconciled directly between the applicable Seller and Purchaser once actual figures become available after Closing. All such prorations shall be made with due allowance for the maximum allowable discount and exemptions. Purchaser shall assume all obligations accruing from and after the Closing Date with respect to any agreements relating to the appealing of real estate taxes or real estate tax assessments, including the obligation to pay portions of amounts of real estate tax savings and costs and expenses related thereto. With respect to each JV Property, Purchaser shall be solely responsible for, and shall report and pay, all state and local sales or use taxes imposed in connection with the sale and transfer of any Personalty. Any state or local sales and use taxes, or other transfer taxes, registration, title or other fees payable in connection with registering or titling of any vehicle shall be the responsibility of Purchaser.
(b) With respect to each JV Property, rents and other payments under the Residency Agreements, the Leases (including, without limitation, the Boca Ciega Bay Lease and the NY Subleases), and other proceeds of the ownership and operations of such JV Property (collectively, “Rents”) collected prior to Closing with respect to the month in which the Closing occurs shall be prorated based upon the actual number of days in such month. Any payments of Rents collected by the month and a 365 day year:
(i) real estate taxes, sewer rents and taxes, water rates and charges (parties hereto after the Closing who owe Rents for periods prior to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); and
(ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed be applied to Rents then due and payable in the following order of priority: (i) first, in payment of Rents for the tax period month in which the Closing Date occurs, with such amounts being prorated between Seller and Purchaser based upon the apportionment number of days each owned the applicable JV Property during the month in which the Closing occurs; (ii) second, in payment of Rents for the month immediately preceding the month in which the Closing occurs; (iii) third, in payment of Rents for any month which commenced after the Closing, but only to the extent payments of rents for such Property Taxes based thereon month are then currently due; and (iv) fourth, in payment of Rents for months preceding the month in which the Closing occurs. Each of the parties hereto shall be made at the Closing Date by applying the tax rate for the preceding year obligated to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller or Purchaser, as the case may be, shall make an appropriate payment pay over to the other within five (5) business days based on such recalculation. If as of the Closing Date the Premises or party any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of Rents collected to which the first installment other is then entitled pursuant to the terms of this Agreement. For a lien period of one hundred eighty (180) days after Closing, Purchaser shall use commercially reasonable efforts (but shall not be obligated to institute legal proceedings) to collect and has become payableremit to Seller the Rents for each JV Property with respect to all periods prior to the Closing. Following the Closing, Seller shall pay have the unpaid installments of such assessments which are due prior right to the Closing Date and Purchaser shall pay the installments which are due on pursue remedies against any resident or after the Closing Date, with apportionment as tenant of the Apportionment DateJV Properties with respect to pre-Closing deficiencies in payment of Rents.
(c) Promptly following With respect to each JV Property, the execution of this Agreement, applicable Seller shall prepare and file with request each utility company providing utility service to the New York City Department of Finance (and any other required governmental authority) applicable JV Property to cause all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ utility ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇to be closed and billed as of the Closing Date in order that utility charges may be separately billed for the period prior to the Closing Date and the period on and after the Closing Date. In the event any such utility charges are not separately billed, the same shall be prorated. In connection with any such proration, it shall be presumed that utility charges were uniformly incurred during the billing period in which the Closing Date occurs. Each Seller shall receive a credit at Closing for any deposits made by Seller in connection with providing water, sewer, gas, electricity, telephone and other public utilities to the JV Property with respect to its respective JV Property that are transferred or made available to Purchaser.
(d) With respect to each JV Property, all obligations and liabilities (for services and materials ordered, or otherwise in the ordinary course of business) and accounts payable for the JV Property owing as of the Closing Date for merchandise, equipment, supplies and other materials and services paid, incurred or ordered shall be prorated between the applicable Seller and Purchaser as of the Closing Date.
(e) Except as covered by the terms of Section 7(a) above, with respect to each JV Property, all water and sewer charges, taxes (other than ad valorem real property or business personal property taxes), including license taxes or fees for licenses which are assignable or transferable without added cost and have a value which will survive Closing, and any unpaid taxes payable in arrears, shall be prorated as of the Closing Date. Each Seller will be credited for that portion of taxes and fees paid by such Seller allocable to the Lot 58 Land below period after the Fee Above a Plane Closing Date.
(f) With respect to each JV Property, all payments and receipts, as applicable, under the assumed Contracts shall be prorated between Purchaser and the Owner Utilized Development Rights applicable Seller as of the Closing Date. The applicable Seller shall receive a credit for all prepayments and deposits thereunder.
(g) With respect to each JV Property, all other income derived by the applicable Seller from the JV Property accruing or relating to the period up to and including the Cut-Off Time shall be paid to such Seller. All other income derived by such Seller from the JV Property accruing or relating to the period on and after the Cut-Off Time shall be paid to Purchaser.
(h) With respect to each JV Property, all other expenses and obligations not otherwise specified in this Section 7 incurred in the ownership of the JV Property and operation of the JV Property and which are customarily prorated in similar transactions shall be prorated between the applicable Seller and Purchaser as of the Closing Date.
(i) With respect to each JV Property, Purchaser shall receive a credit for any refundable security deposits (and if legal requirements or any agreements require a landlord to be accountable for interest on such refundable security deposits, any accrued interest owed thereon), which credit shall be applied against the allocated Purchase Price for the JV Property at which there exist prepaid rents and other resident charges or refundable security deposits.
(j) Except as set forth in Section 8(a)(xv), Seller shall have no obligation to remove any notes or notices of violations of law, or municipal ordinances, orders, designations or requirements whatsoever noted in or issued by any federal, state, municipal or other governmental department, agency or bureau or any other governmental authority having jurisdiction over the Properties (collectively, “Violations”); provided, that (i) at or prior to Closing, either (A) Seller shall pay or bond all monetary fines, fees or penalties accruing prior to the Closing Date with respect any such Violations or (B) Purchaser shall receive a credit for any such monetary fines, fees or penalties accruing prior to the Closing Date with respect any such Violations that remain unpaid, and (ii) notwithstanding the foregoing, Seller shall be obligated to continue to perform, or cause to be performed, routine maintenance and repair of the Properties as and to the extent required pursuant to clause (i), (ii) or (iii) (as applicable) of Section 8(a).
(k) Salaries, wages and benefits (accrued and unpaid employee benefits, vacation time, and personal days) with respect to the then-current employees (“Facility Employees”) of Seller or WRC at each JV Property shall be prorated between Seller and Purchaser as of the Closing Date. On the Closing Date, Seller shall credit Purchaser on the Closing Statement (and Purchaser or New Operator shall, or shall cause WRC to, assume responsibility) for estimated accrued and unpaid employee benefits, vacation time, and personal days for all Facility Employees, based on the accrued amount calculated by Seller for the Property as of the Closing Date (“Accrued PTO”). Purchaser shall apply, or cause WRC to apply, any such Accrued PTO for which it has received a credit pursuant to this Section 7(k) to its intended purpose for the benefit of each applicable Facility Employee. Solely as between Seller and Purchaser, Purchaser shall be responsible for any severance pay due to any Facility Employees who Purchaser or New Operator or WRC elects to terminate on or after the Closing Date.
(l) With respect to each JV Property and each Master Lease Property, Seller shall receive a credit at Closing in the amount of any required reserves, escrows or other deposits maintained pursuant to any Law by or on behalf of any Seller, Master Tenant, or any of their respective affiliates, in each case as security for the operation of the applicable Property(ies) or obligations of the licensed operator thereof (the “Owner Tax ParcelRegulatory Deposits”). Purchaser shall not receive any credits hereunder in connection with any Regulatory Deposits made or required to be made in connection with obtaining any Licensure Approvals.
(m) At the Closing (or thereafter as provided in this Section 7(m)): (i) Purchaser shall receive a credit in the aggregate amount of $318,000 on account of the expected removal and/or remediation of underground storage tanks at certain of the Properties; (ii) within one hundred eighty (180) days after Closing, Seller shall reimburse Purchaser for all costs incurred by Purchaser, as reasonably determined by Purchaser and Seller based upon the written estimates obtained by Seller and/or Purchaser, to remediate certain moisture issues, including repair of any foundational cracks or leaks causing such issues, at certain of the Properties (provided, that such amount shall not to exceed $1,000,000); (iii) Purchaser shall receive a credit in the amount by which Seller’s aggregate capital expenditures for all Properties (excluding any capital expenditures on unit renovations at the Master Lease Properties) from January 1, 2021 until October 31, 2021 is less than, or Seller shall receive a credit in the amount by which such aggregate capital expenditures exceed, in each case, Seller’s budgeted aggregate capital expenditures for all Properties (excluding any capital expenditures on unit renovations at the Master Lease Properties) for calendar year 2021 prorated through October 31, 2021; and (iv) within ninety (90) days after Closing, in the event that the amount by which Seller’s aggregate capital expenditures for all Properties (excluding any capital expenditures on unit renovations at the Master Lease Properties) from November 1, 2021 until the Closing Date is more or less than Seller’s budgeted aggregate capital expenditures for all Properties (excluding any capital expenditures on unit renovations at the Master Lease Properties) for such period, Seller and Purchaser shall prorate such amounts and, if the amount actually spent is less than the budgeted amount, Seller shall pay Purchaser an amount equal to the difference and, if the amount actually spent by Seller is greater that the budgeted amount, Purchaser shall pay Seller an amount equal to the difference; provided, that in the case of the foregoing clauses (iii) and (iv) that neither party shall receive any credit or payment thereunder unless the amount of such difference is equal to or exceeds $250,000, and Seller shall not be entitled to a credit or payment thereunder for any non-emergency capital expenditure in excess of $250,000 in the aggregate unless Purchaser has approved in writing such capital expenditure prior to Seller having incurred such capital expenditure.
(n) Except as otherwise expressly provided in this Agreement, all apportionments and adjustments shall be made in accordance with generally accepted accounting principles. The computation of the adjustments shall be jointly prepared by Seller and Purchaser. In the event any prorations or apportionments made under this Section 7 shall prove to be incorrect for any reason, then any party shall be entitled to an adjustment to correct the same in accordance with the remaining terms of this Section 7(n). To the extent the exact amount of any adjustment item provided for in this Section 7 cannot be precisely determined on the Closing Date, such prorations and apportionments shall be tentatively prorated on the basis of the best data then available and re-prorated when the information is available. Notwithstanding the foregoing, any adjustment or re-proration pursuant to the two immediately preceding sentences shall be made, if at all, within ninety (90) days after the Closing Date (except with respect to taxes and assessments, in which case such re-proration shall be made within sixty (60) days after the information necessary to perform such re-proration is available). All payments to be made as a result of the final results of the adjustments shall be paid to the party entitled to the same within fifteen (15) days after the final determination thereof. Seller and Purchaser agree that none of the insurance policies relating to any Property will be assigned to Purchaser (and each Seller shall pay any cancellation fees or minimum earned premiums resulting from the termination of the policies relating to its respective Property), and the - 12 – other of which will consist Purchaser shall be responsible for arranging for its own insurance as of the real Closing Date.
(o) On the Closing Date, the Seller will provide to Purchaser a true, correct, and complete accounting (properly reconciled) of all resident trust funds, resident security deposits, patient deposits, refundable community fees, or any residents’ property rights that may be held by Seller on the Closing Date for residents at JV Properties (“Resident Trust Funds”) (which for the avoidance of doubt excludes refundable entrance fees), if any, held by Seller. If applicable, to the extent permitted by applicable Laws, Seller will deliver such Resident Trust Funds to Purchaser within two (2) business days of Closing. Purchaser shall, or shall cause New Operator to, accept such Resident Trust Funds in trust for the residents of the JV Properties and interests contemplated by this Agreement will hold and disperse such Resident Trust Funds in accordance with applicable contractual, statutory and regulatory requirements. Seller will indemnify, defend, and hold the Purchaser harmless from all liabilities, claims and demands, including reasonable attorney’s fees, in the event the amount of the Resident Trust Funds, if any, transferred to be sold Purchaser did not represent the full amount of any Resident Trust Funds shown to have been delivered to Seller or its affiliate, as custodian or with respect to any Resident Trust Funds delivered, or claimed to have been delivered, to Seller or its affiliate, but which were not delivered by Seller to Purchaser, and consisting or for claims that arise from actions or omissions of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation Seller with respect to Lot 58the Resident Trust Funds before the Closing Date. Purchaser will indemnify, defend and hold Seller harmless from all liabilities, claims and after the closingdemands, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contraryincluding reasonable attorneys’ fees, in the event a claim is made against Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications with respect to the ZLDA as reasonably necessary Resident Trust Funds with respect to reflect any such funds that are transferred to Purchaser pursuant to this Section 7(o). For the revised Fee Above a Plane and (ii) the parties shall make such other modifications avoidance of doubt, claims made pursuant to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner indemnities set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party 7(o) shall provide the other with such information as the other shall reasonably request (including, without limitation, access not be subject to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for hereinThreshold Amount.
(gp) The provisions of this Except as expressly set forth in Section 7 shall survive the Closing.7(l) and Section 7(m
Appears in 1 contract
Sources: Portfolio Acquisition Agreement (NorthStar Healthcare Income, Inc.)
Apportionments. (a) The At the Closing, the following items shall be apportioned between Seller and Purchaser the parties as of 11:59 p.m. PM on the day immediately preceding the Closing Date (the "Apportionment Date") on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days . Any errors in the month and a 365 day year:
(i) real estate taxes, sewer rents and taxes, water rates and charges (to the extent not accounted for apportionments pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with this Section 7(c); and
(ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes 4.04 shall be apportioned on the basis corrected by appropriate re-adjustment between Seller and Buyer post-Closing, provided that notice of the fiscal period for which assessed. If the Closing Date shall occur either before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occursany such error, the apportionment of such Property Taxes based thereon with supporting calculations, shall be made at the Closing Date given by applying the tax rate for the preceding year Buyer to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller or Purchaserby Seller to Buyer, as the case may be, no later than ninety (90) days after the Closing, if ascertainable within such period, it being understood and agreed that if any such items or errors are not ascertainable at the Closing or within ninety (90) days thereafter, the apportionment shall make an appropriate payment be made subsequent to the Closing as soon as practicable after the charge or error is determined. The items to be apportioned are:
(b) Real estate taxes, school taxes, sewer charges, and vault charges, if any, and any and all other within five (5) business days based on such recalculation. If as municipal or governmental assessments of any and every nature levied or imposed upon the Property with respect to the current fiscal year of the applicable taxing authority in which the Closing Date occurs (the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable "Current Tax Year"), on a per diem basis based upon the number of days in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due Current Tax Year prior to the Closing Date (which shall be allocated to Seller) and Purchaser shall pay the installments which are due number of days in the Current Tax Year on or and after the Closing DateDate (which shall be allocated to Buyer). If the Closing shall occur before the tax rate for the Current Tax Year is fixed, with the apportionment as of real estate taxes shall be upon the basis of the Apportionment tax rate for the next preceding fiscal period applied to the latest assessed valuation. Promptly after the new tax rate is fixed for the fiscal period in which the Closing takes place, the apportionment of real estate taxes shall be recomputed. Upon the Closing Date and subject to the adjustment provided above, Buyer shall be responsible for real estate taxes and assessments levied or imposed upon the Property payable with respect to the Current Tax Year and all periods after the Current Tax Year. In no event shall Seller be charged with or be responsible for any increase in the real estate taxes or assessments levied or imposed upon the Property resulting from the transfer of the Property herein contemplated or from any improvements made at any time or for any reason. In the event that any assessments levied or imposed upon the Property are payable in installments, the installment for the Current Tax Year shall be prorated in the manner set forth above and Buyer hereby assumes the obligation to pay any such installments due on and after the Closing Date.
(c) Promptly following Buyer acknowledges that the execution Property is subject to a pending real estate tax appeal. If the tax appeal results in a reduced real estate assessment for the fiscal year in which Closing occurs, the real estate taxes shall be apportioned based upon the reduced assessment, and Buyer shall reimburse Seller at Closing for its proportionate share of this Agreementthe costs of the tax appeal, based upon the fiscal year in which the Closing occurs. In the event that the tax assessment is reduced for any fiscal year prior to the fiscal year in which the Closing occurs, Seller shall prepare and file with be entitled to receive the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate entire tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of refund for such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated hereinfiscal year.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.
(g) The provisions of this Section 7 shall survive the Closing.
Appears in 1 contract
Sources: Sale Agreement (DVL Inc /De/)
Apportionments. (a) The following shall be apportioned between Seller and Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date (the "Apportionment Date") on the basis charges relating to each of the actual number of days of the month which shall have elapsed as of Leased Real Properties, except those Leased Real Properties that are not retail stores, that relate to a period that begins prior to the Closing Date and based upon ends after the actual number Closing Date are to be apportioned between the Company, on the one hand, and Purchaser, on the other hand, as of days in midnight of the month and a 365 day yearpreceding the Closing Date:
(i) real estate taxes, sewer rents and taxesrent apportioned for the month in which the Closing Date occurs;
(ii) assessments, water rates meter charges, and charges (to the extent not accounted for pursuant to clause (i) above)sewer rents, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, "Property Taxes")if any, on the basis of the respective periods fiscal year for which each is assessed assessed;
(iii) charges and fees payable for telephone services, water, heat, steam, electric power, gas and other utilities, at the price charged by the suppliers, including any taxes thereon and based upon applicable meter readings, where available, made on or imposed, immediately prior to be apportioned in accordance with Section 7(c)the Closing Date; and
(iiiv) such amounts due to the landlords for expense adjustments for property, income or other items taxes, “CAM” and other obligations under the Lease. Items (i) through (iv) above which relate to the pre-Closing obligations of the Company are hereinafter referred to as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York“Company Apportionment Obligations.
(b) Property Taxes shall be apportioned on The parties hereto acknowledge and agree that the basis landlords of the fiscal period for which assessed. If the Closing Date shall occur either before an assessment is made Leases that are assumed and assigned to Purchaser or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding year to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days based on such recalculation. If as of the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due its Designee must submit all Company Apportionment Obligations prior to the Closing Date and Purchaser September 15, 2006 or such expenses shall pay the installments which are due on or after the Closing Date, with apportionment as of the Apportionment Date.
(c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”)not be allowed against, and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to landlord shall be sold by Seller to barred from collecting such charges from Purchaser, and consisting of Purchaser’s Designee, the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax ParcelCompany or its estate.”
4. Amendment to Section 4.8(b). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheldSection 4.8(b) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser Agreement is hereby deleted in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (its entirety and the manner following is inserted in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.
(g) The provisions of this Section 7 shall survive the Closing.lieu thereof:
Appears in 1 contract
Sources: Purchase Agreement (Gadzooks Inc)
Apportionments. (a) Except as otherwise expressly provided in this Agreement, all income and expenses of the facilities operating on the Real Property with respect to the period prior to the Closing Date shall be for the account of Seller, and all income and expenses of the facilities operating on the Real Property with respect to the period from and after the Closing Date shall be for the account of Purchaser. The following specific apportionments shall be apportioned made between Seller and Purchaser the parties at the Closing as of 11:59 p.m. Arizona time on the day immediately preceding prior to the Closing Date (the "“Apportionment Date") on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:Time”):
(i) 10.1.1 real estate taxes, sewer rents and personal property taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and special assessments and any other governmental taxesvault charges, charges or assessments levied or assessed against the Premises (collectivelyif any, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); and
(ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed. If the Closing Date shall occur either before an assessment is made or ; provided that if a tax rate is fixed ▇▇▇▇ for the tax current period in which the Closing Date occurshas not yet been issued, the apportionment shall be based on Seller’s estimate of such taxes based on the assessed value of the Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding fiscal year which is being assessed, or the prior year’s tax ▇▇▇▇, in either case with a re-proration subsequent to the latest assessed valuation, but, Closing promptly after the assessment and/or a current tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller ▇▇▇▇ has been issued. Any tax refunds or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) business days based on such recalculation. If as abatements in respect of the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due periods prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date, with apportionment as of the Apportionment Date.
(c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed will belong to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and any tax refunds or abatements in respect of periods subsequent to the Closing Date will belong to Purchaser. Purchaser shall have the right to approve (such approval not commence, continue and settle any proceeding to be unreasonably withheld) all such filings contest real estate taxes and applications by Seller. The purpose other assessments which include any period of such separation is (i) for the Property, time from and after the ClosingClosing Date; provided, however, that (a) to the extent that any proceeding includes any period of time before the Closing Date and the commencement, continuation or settlement of such proceeding could reasonably be burdened with expected to result in an increase in real estate taxes (including interest and penalties) and other assessments for which Seller would be liable, Purchaser shall not commence, continue or settle such proceeding without the obligations prior express, written consent of the Sale Tax ParcelSeller, which consent may be withheld in Seller’s sole and absolute discretion; and (iib) for Seller’s taxes obligation with respect Seller shall be entitled to Lot 58, from and that portion of any refund or tax benefit relating to the period occurring before the Closing after the closing, to be reduced as a result of the conveyance payment to Purchaser of the Fee Above a Plane all costs and the Excess Development Rightsexpenses, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the booksreasonable attorneys’ fees and disbursements, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) actually incurred by Purchaser in order to make the preliminary and final adjustments and prorations provided for herein.
(g) The provisions of this Section 7 shall survive the Closing.obtaining such refund or in obtaining any tax benefits including benefits based on decreases in assessed valuation; 10
Appears in 1 contract
Sources: Purchase and Sale Agreement
Apportionments. (a) Except as otherwise expressly provided in this Agreement, all income and expenses of the facilities operating on the Real Property with respect to the period prior to the Closing Date shall be for the account of Seller, and all income and expenses of the facilities operating on the Real Property with respect to the period from and after the Closing Date shall be for the account of Purchaser. The following specific apportionments shall be apportioned made between Seller and Purchaser the parties at the Closing as of 11:59 p.m. Arizona time on the day immediately preceding prior to the Closing Date (the "“Apportionment Date") on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:Time”):
(i) 10.1.1 real estate taxes, sewer rents and personal property taxes, water rates and charges (to the extent not accounted for pursuant to clause (i) above), vault charges and taxes, business improvement district taxes and special assessments and any other governmental taxesvault charges, charges or assessments levied or assessed against the Premises (collectivelyif any, "Property Taxes"), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c); and
(ii) such other items as are customarily apportioned in accordance with real estate closings of commercial properties in the City of New York, State of New York.
(b) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed; provided that if a tax ▇▇▇▇ for the current period has not yet been issued, the apportionment shall be based on Seller’s estimate of such taxes based on the assessed value of the Property for the fiscal year which is being assessed, or the prior year’s tax ▇▇▇▇, in either case with a re-proration subsequent to Closing promptly after a current tax ▇▇▇▇ has been issued. If Any tax refunds or abatements in respect of periods prior to the Closing Date shall occur either before an assessment is made will belong to Seller, and any tax refunds or a tax rate is fixed for the tax period abatements in which respect of periods subsequent to the Closing Date occurswill belong to Purchaser. Purchaser shall have the right to commence, continue and settle any proceeding to contest real estate taxes and other assessments which include any period of time from and after the apportionment Closing Date; provided, however, that (a) to the extent that any proceeding includes any period of such Property Taxes based thereon shall be made at time before the Closing Date by applying and the commencement, continuation or settlement of such proceeding could reasonably be expected to result in an increase in real estate taxes (including interest and penalties) and other assessments for which Seller would be liable, Purchaser shall not commence, continue or settle such proceeding without the prior express, written consent of Seller, which consent may be withheld in Seller’s sole and absolute discretion; and (b) Seller shall be entitled to that portion of any refund or tax rate for the preceding year benefit relating to the latest period occurring before the Closing after payment to Purchaser of all costs and expenses, including, without limitation, reasonable attorneys’ fees and disbursements, actually incurred by Purchaser in obtaining such refund or in obtaining any tax benefits including benefits based on decreases in assessed valuation;
10.1.2 water and sewer service charges and charges for gas, butelectricity, promptly after telephone and all other public utilities. If there are meters measuring the assessment and/or tax rate consumption of water, gas or electric current, Seller, not more than one day prior to the Apportionment Time, if possible, shall endeavor to cause such meters to be read, and shall pay all utility bills for the current year are fixed, the apportionment thereof which Seller is liable upon receipt of statements therefor. Purchaser shall be recalculated responsible for causing such utilities and Seller or Purchaser, as the case may be, shall make an appropriate payment services to the other within five (5) business days based on such recalculation. If be changed to its name effective as of the Closing Date the Premises or any portion thereof and shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien liable for and has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to all utility bills for services rendered from and after the Closing Date and Seller shall receive a credit at Closing for all utility deposits held by any utilities on the Closing Date that are transferred to Purchaser shall pay and provided such deposit remains on deposit for the installments benefit of Purchaser;
10.1.3 amounts which have been paid or are due payable under the Contracts assigned to and assumed by Purchaser at Closing, except as otherwise set forth in Section 10.1.7 below, amounts which have been paid or are payable under the Property Leases, and amounts which have been received under the Space Leases;
10.1.4 prepaid operating and advertising expenses (excluding expenses for advertising that is aired, mailed or published on or after the Closing Date, with apportionment as which shall be Purchaser’s sole expense) to the extent the item for which such expense was incurred is transferred to Purchaser;
10.1.5 commissions of credit and referral organizations related to Bookings;
10.1.6 all other charges and fees customarily prorated and adjusted in similar transactions. Purchaser shall receive a credit at Closing for the Apportionment Date.
face amount of any gift certificates or vouchers for free or reduced rate rooms (c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed or if no face amount is given an amount equal to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”$150 per room per night), and the - 12 – other of which will consist of the real property rights and interests contemplated by this Agreement to be sold by Seller to Purchaser, and consisting of the Fee Above a Plane and the Excess Development Rights, (the “Sale Tax Parcel”). All costs and expenses of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation with respect to Lot 58, from and after the closing, to be reduced as a result of the conveyance to Purchaser of the Fee Above a Plane and the Excess Development Rights, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 11050% of the last available reading. If the apportionment is face amount of any gift certificates or vouchers for free or reduced food and beverage or other services which have been issued but not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver redeemed prior to Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver to Purchaser at Closing a current water meter reading.Closing; and
(e) Charges for all electricity, steam, gas and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, 10.1.7 from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Time Purchaser shall promptly deliver pay for all work performed under any Construction Contracts assigned to Sellerand assumed by Purchaser at Closing, as the case may beand at Closing, Seller provide to Purchaser a credit equal to the amount determined to be due upon such adjustment.
(f) Not more than ten (10) nor fewer than seven (7) business days prior to the Closing, Escrow Agent will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to of any retainage then held by or on behalf of Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 4, as applicable. Within sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if any. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order work to make the preliminary and final adjustments and prorations provided for hereinbe performed under any such Construction Contract.
(g) The provisions of this Section 7 shall survive the Closing.
Appears in 1 contract
Apportionments. (a) The At the Closing, the following shall items shall, with respect to the Properties, be apportioned between Seller Sellers and Purchaser on a per diem basis, so that, except as provided in this Section 4.02, Sellers shall be responsible for those items of 11:59 p.m. on expense and credited with those items of income that are attributable to the day immediately preceding period prior to 12:01 A.M. of the Closing Date and Purchaser shall be responsible for those items of expense and credited with those items of income that are attributable to the period on or after 12:01 A.M. of the Closing Date: rents (including without limitation Ground Lease rent (if applicable), base rent, percentage rent (if any), additional rent, common area maintenance reimbursements, marketing fund contributions, operating expense and tax reimbursements, and other additional rent) (collectively "Rents"); prepaid and accrued expenses (including, without limitation, interest, payments with respect to Existing Secured Indebtedness, ground rent, utility charges, water and sewer charges (unless such payment is to be made directly by any Tenant), fees for licenses and permits, fuel, steam, gas and electricity charges, annual license, permit and inspection fees, payments under reciprocal easement agreements and payments to merchants associations and/or promotional funds maintained by Sellers, and obligations under the Contracts assumed by Purchaser; and real and personal ad valorem and other taxes and assessments ("Apportionment DateAd Valorem Taxes") against such Property; provided that:
(i) If the Ad Valorem Taxes for the tax year in which the Closing Date occurs are not known or cannot reasonably be estimated, they shall be adjusted based on an estimate obtained using the basis then current assessed value of the actual number of days of the month which shall have elapsed such Property as of the Closing Date and the tax rate and multiplier reflected by the most recent Ad Valorem Taxes due. Within sixty (60) days after the Ad Valorem Taxes for the year in which the Closing occurs are known, adjustments shall be made between the parties. Seller shall be responsible for any "recoupment" or similar taxes or assessments payable with respect to any period prior to Closing.
(ii) MOP shall have the right to control all tax certiorari and tax reduction proceedings relating to the Properties for tax years prior to the tax year in which the Closing Date occurs and shall keep Purchaser informed with respect thereto. Any tax refund or credit obtained by any Seller or MOP (net of any costs of obtaining such refund) attributable (A) to the period prior to the tax year in which the Closing Date occurs shall be paid, FIRST, to Tenants entitled thereto and SECOND, to the respective Seller or MOP, and (B) to the tax year in which the Closing Date occurs shall be apportioned between such Seller or MOP, as applicable, and Purchaser, with the portion allocable to such Seller or MOP to be applied as provided in clause (A) and the balance paid to Purchaser. With respect to any proceeding in respect of a tax year in which the Closing Date occurs, Purchaser shall coordinate its efforts with MOP, shall keep MOP reasonably informed with respect thereto and shall not settle the same without the consent of MOP, which consent shall not be unreasonably withheld or delayed.
(iii) Sellers shall pay all utility charges accrued prior to the Closing Date and all utilities thereafter shall be paid for by Purchaser. Sellers and MOP shall be entitled to a credit on the Settlement Statement for all deposits held by utility companies as of the Closing Date, and Sellers' deposits shall be assigned to Purchaser.
(iv) The parties agree that, except as otherwise specifically stated elsewhere in this Agreement, all income and expenses (including, without limitation, owners' association or similar dues, fees and assessments) of the Conveyed Property are intended to be prorated as of 12:01 A.M. of the Closing Date. It is the intent of the parties that, unless otherwise specified in this Agreement, income generated from or by the Conveyed Property on the date of Closing shall be payable to Purchaser and expenses attributable to the Conveyed Property on the date of Closing shall be paid by Purchaser. Purchaser shall be deemed the owner of the Conveyed Property, for the purpose of such calculation, for the entire Closing Date. Income shall include all revenue of Seller derived from the operation of the Conveyed Property, including all rents and pass-throughs collected from Tenants. Expenses shall include all expenses from the operation of the Conveyed Property, and, for purposes of this paragraph, including debt service on Existing Secured Indebtedness. Any income received by Seller attributable to any period on or after the Closing Date shall appear on the closing statement as a credit to Purchaser. Subsequent to the Closing Date, any income received by Seller attributable to any period after the Closing Date, and any income received by Purchaser attributable to any period before, the Closing Date (unless, in either case, credits were received or taken at Closing) shall promptly be reimbursed by the party receiving said income to the party entitled to said income. Expenses actually paid by Seller prior to the Closing in payment for any period on or after the Closing Date shall appear on the closing statement as a credit to Seller. Expenses paid by Purchaser which are attributable to the period before the Closing Date shall be repaid by Seller to Purchaser.
(v) Notwithstanding anything to the contrary in subsection (iv) above, rents under the Leases, including, without limitation, fixed rent and additional rent, including operating expenses and real estate tax pass-throughs and other reimbursements payable by Tenants (collectively, "Rents"), shall be addressed in the manner set forth in this subsection (v). All Rents collected prior to Closing shall be prorated as of 12:01 A.M. of the Closing Date based upon on the actual number of days in the month that the Closing occurs. All prepaid Rents (for periods following the Closing) paid to or in possession of Seller shall appear on the closing statement as a credit to Purchaser at the Closing. No proration shall be made for Rents from Tenants that are delinquent as of the Closing Date (the "Tenant Delinquent Rents"). Any Rents paid to any Seller or MOP by the Tenants on or after the Closing Date, other than Tenant Delinquent Rents described in clause (d) of the definition of Excluded Assets, shall be held in trust and a 365 day year:forth with paid by such Seller or MOP to Purchaser or applicable Property Transferee. Seller shall be entitled, after Closing, to pursue an action for damages against Tenants for Tenant's Delinquent Rents.
(ivi) real estate taxesAll unpaid Lease commissions, sewer rents tenant improvement costs, and taxesother concessions, water rates including but not limited to all Lease related costs, free rent, moving allowances, and charges cash payments incurred by Seller in connection with the current term (but not any renewal term) of all Leases that were executed and delivered prior to the Effective Date, and which are due during the current term of the subject Lease, and which are not paid by Seller on or before Closing shall be the responsibility of Seller and shall be paid or credited to Purchaser at the Closing.
(vii) All security deposits (including any interest thereon to the extent payable to the applicable Tenants) not accounted for pursuant theretofore properly applied to clause (i) above)obligations under the applicable Leases shall be delivered by MOP or Sellers to Purchaser at the Closing, vault charges and taxesor, business improvement district taxes and assessments and any other governmental taxesin the alternative, charges MOP may elect to give Purchaser a credit in the amount of such security deposits. At no cost to Sellers or assessments levied or assessed against the Premises (collectivelyMOP, "Property Taxes"), on the basis effective as of the respective periods Closing Date, MOP and Sellers shall either assign their rights under all letters of credit serving as security deposits to Purchaser or, if any such letters of credit are not assignable, shall cooperate with Purchaser in arranging for which each is assessed or imposedthe transfer thereof to Purchaser, to be apportioned and, pending such transfer, MOP shall act as Purchaser's agents in accordance with Section 7(c); and
(iiwithout any fiduciary obligation thereto) presenting any draws under, and in otherwise administering such other items as are customarily apportioned in accordance with real estate closings letters of commercial properties in the City of New York, State of New Yorkcredit.
(bviii) Property Taxes With respect to any taxes due in connection with Rent for the month in which Closing occurs, Seller shall provide Purchaser with an estimate of such amount no later than three (3) days prior to the Closing Date. Seller shall be apportioned liable for the pro rata portion of such monthly amount that is attributable to the time period between the first day of such calendar month and the Closing Date, and Purchaser shall receive a credit for same on the basis Settlement Statement. In the event the actual amount of said taxes due in connection with Rent for such month differs from such estimated amount, the parties shall adjust such credit accordingly within sixty (60) days of the fiscal period Closing Date.
(ix) Attached hereto as Exhibit D-2 is the schedule and allocation of reserves and escrows for and relating to the Properties, which, Sellers represent and warrant, is a true, accurate and complete schedule of all such reserves and escrows paid to any third parties or held by Seller. Other than the amounts and purposes for which assessedsaid sums have been paid and/or collected as shown on Exhibit D-2, there are (or prior to Closing will be) no other reserves or escrows payable for or with respect to the Properties. If The representation and warranty in this subsection (ix) shall be true and correct at Closing, save and except for changes in line item amounts resulting from payments made prior to Closing. Exhibit D-2 sets forth whether a party hereto is receiving a credit at Closing for a particular reserve or escrow, and the credits due to Seller and Purchaser at Closing with respect to such reserves or escrows shall be in the amounts shown on Exhibit D-2, as such amounts may be adjusted or updated prior to Closing as a result of payments into such reserves or escrows or any disbursements therefrom between the Effective Date and Closing.
(x) MOP's and Sellers' insurance policies on each Property shall not be assumed by Purchaser. The amount of the refunds payable to MOP or Sellers in respect of any early cancellation of insurance policies on any Property shall be Excluded Assets and shall be the sole property of Sellers and MOP. Purchaser shall be obligated to purchase and place its own insurance on or with respect to the applicable Property as of Closing Date.
(xi) MOP shall continue to fund unpaid tenant allowances (which shall include tenant improvement allowances, landlord contributions, lease takeover obligations and other payments to or for the benefit of Tenants) and lease commissions applicable to all Leases that were executed and delivered prior to the Effective Date. Any tenant allowances, improvement allowances, lease takeover obligations, landlord contributions or leasing commissions that first accrue after the Effective Date with respect to any new Lease, or any renewals, amendments, extensions, options or expansions of existing Leases entered into or exercised after the Effective Date, shall be Purchaser's responsibility and neither MOP nor any Seller shall have any responsibility for same.
(xii) At least 15 days prior to the Closing Date shall occur either before Date, Seller shall, in respect of each Property, provide its good faith estimates of the current calendar year's actual and accrued operating expenses, real estate taxes and other pass through costs due from the Tenants of each of the Properties attributable to the Seller's period of ownership (each an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon "Expense Estimate"). Each Expense Estimate shall be made at the Closing Date by applying the tax rate subject to Purchaser's approval, which approval shall not be unreasonably withheld or delayed. Seller will be entitled to or liable for the preceding year to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Seller any shortage or Purchaseroverage, as the case may be, of the difference between the pass through expenses actually collected from Tenants during Seller's period of ownership during the current calendar year and the Expense Estimate. If Seller is liable for an overage, Seller shall credit Purchaser at Closing. If Seller is entitled to reimbursement for the shortage, then if such shortage can be determined by the Closing, Sellers and MOP shall receive a credit for such shortage or, if such shortage cannot be determined at Closing, Sellers and MOP shall not receive a credit on the Settlement Statement and the parties shall make an appropriate adjustment payment between them within sixty (60) days after the correct amounts can be determined following the Closing.
(xiii) Intentionally left blank
(b) Subject to Purchaser's right to exclude Excluded Properties up to the other within five Closing Date, no later than three (53) business days based on such recalculation. If as of the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Seller shall pay the unpaid installments of such assessments which are due Business Days prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date, with apportionment as of the Apportionment Date.
parties shall agree upon a settlement statement that has been approved by both parties (c) Promptly following the execution of this Agreement, Seller shall prepare and file with the New York City Department of Finance (and any other required governmental authority) all required applications needed to separate Lot 58 into two separate tax parcels, one of which will consist of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, that portion of the Lot 58 Land below the Fee Above a Plane and the Owner Utilized Development Rights (the “Owner Tax Parcel”"Settlement Statement"), and prepared by Escrow Agent to settle the - 12 – other of which will consist of the real property rights Purchase Price and interests contemplated by this Agreement apportionments hereunder. The net credit to be sold by Seller to Sellers and MOP or Purchaser, and consisting as applicable, resulting from the apportionments made pursuant to subsection (a) of this Section 4.02 shall be paid to MOP or Purchaser, as applicable, at Closing. If the Fee Above parties are unable to agree on a Plane and Settlement Statement, the Excess Development Rights, matter in dispute shall be referred to one (1) of three (3) firms of independent accountants suggested by Purchaser (the “Sale Tax Parcel”). All costs and expenses "Accounting Firm") that does not have a present conflict of such separation shall be borne solely by the Seller, and Purchaser shall have the right to approve (such approval not to be unreasonably withheld) all such filings and applications by Seller. The purpose of such separation is (i) for the Property, from and after the Closing, to be burdened with the obligations of the Sale Tax Parcel, and (ii) for Seller’s taxes obligation interest with respect to Lot 58, from and after the closing, to be reduced acting as a result of the conveyance third party arbiter and which is mutually acceptable to Purchaser of and MOP, whose determination as to such matter shall be conclusive and binding on the Fee Above parties. Pending a Plane and resolution by the Excess Development RightsAccounting Firm, and further to insure that Seller’s real property tax obligations with respect to Lot 58 are not increased as a result of the construction of any improvements on amount in dispute shall be deducted from or within the Fee Above a Plane or otherwise utilizing any of the Excess Development Rights. Notwithstanding anything added to the contrary contained herein, (x) if Seller is unable to create such separate tax parcels by the Scheduled Closing Date (as defined below), Seller may, upon at least ten (10) business days' prior notice to Seller, adjourn the Scheduled Closing Date for a period of up to thirty (30) days, and (y) in no event shall Seller be required to finalize the creation of such separate tax parcels until such time that Purchaser delivers to Seller the Termination Waiver Notice (as defined below). Notwithstanding anything contained herein to the contrary, in the event Seller is unable to obtain the New York City Department of Finance’s approval for the Sale Tax Parcel as currently contemplated herein, (i) the Fee Above a Plane shall be revised to include that portion of Lot 58 containing the volume of space which lies above a horizontal plane having an elevation commencing fifteen (15) feet above the existing roof of the L▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (▇▇) the parties shall make such modifications to the ZLDA as reasonably necessary to reflect the revised Fee Above a Plane and (ii) the parties shall make such other modifications to the ZLDA as reasonably necessary to achieve the purpose and intent of the three dimensional Fee Above a Plane as currently contemplated herein.
(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within ten (10) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of 110% of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall deliver to Purchaser or Purchaser shall deliver to SellerPurchase Price, as the case may be, the amount determined to be due upon such readjustment. Seller shall endeavor to obtain and deliver held in escrow by a bank that is mutually acceptable to Purchaser at Closing and MOP in a current water meter reading.
(e) Charges for all electricity, steam, gas non-interest bearing escrow account and other utility services (collectively, "Utilities") shall be billed to Seller's account up to the Apportionment Date and, from and after the Apportionment Date, all utilities shall be billed to Purchaser's account. If for any reason such changeover in billing is not practicable as of the Closing Date, as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, proceed on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon Settlement Statement agreed to by the taking of a subsequent actual reading, the Parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Seller shall promptly deliver to Purchaser, or Purchaser shall promptly deliver to Seller, as the case may be, the amount determined to be due upon such adjustmentparties.
(fc) Not more than ten Purchaser shall be responsible for the initial $375,000 of Transfer Taxes due or owed as a result of the transactions contemplated by this Agreement. MOP shall be responsible for any Transfer Taxes due or owed as a result of the transactions contemplated by this Agreement in excess of $375,000, if any, which obligation shall survive Closing.
(10d) nor fewer than seven (7In the event that any amounts to be prorated pursuant to Section 4.02(a) business days prior to have not been finally determined on the Closing Date, a mutually satisfactory estimate of such amounts made on the basis of the records of the Sellers and MOP or public records shall be used as a basis for settlement at the Closing, Escrow Agent and the amounts finally determined will prepare a preliminary closing statement (the "Preliminary Closing Statement") which will show the net amount due either to Seller or to Purchaser be prorated as the result of the adjustments Closing Date and prorations provided for hereinappropriate settlement made as soon as practicable after such final determination, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at but in no event later than 60 days after the Closing pursuant to Section 4Date, or such longer period as applicable. Within may be reasonably necessary in the event final determination cannot be made within such sixty (60) days following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the "Final Closing Statement") setting forth the final determination of the adjustments and prorations provided for herein and setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid), if anyday period. If no adjustments or prorations are required, then the Preliminary Closing Statement shall be deemed to be the Final Closing Statement. The net amount due Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the Party obligated therefor within five (5) business days following that Party's receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the Parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Seller and Purchaser, which items shall be determined and paid in the manner set forth in this This Section 7 and except for other amounts payable pursuant to this Agreement pursuant to provisions which survive the Closing other than this Section 7. Prior to and following the Closing Date, each Party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property and the Excess Development Rights during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.
(g) The provisions of this Section 7 4.02 shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Retirement Properties Inc)