APPORTIONMENTS AND ADJUSTMENTS. 4.01 The following apportionments shall be made between the parties at the Closing as of midnight of the day preceding the Closing Date (the “Apportionment Time”): (a) Collected rents and additional rents (subject to the provisions of Section 4.03); (i) All real estate taxes and any general or special assessments imposed upon the Property, (ii) any fee, tax or charge imposed by any governmental authority for any vaults, vault space or other space within or outside the boundaries of the Property, and (iii) any taxes or assessments levied in whole or in part for public benefits to the Property, including any business improvement district taxes (or similar taxes) affecting the Property), if any, on the basis of the fiscal period for which assessed. If the Closing shall occur before a new tax rate is fixed, the apportionment of taxes at the Closing shall be upon the basis of the old tax rate for the preceding period applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed in accordance with Section 4.06; (c) Payments due or payable under any Service Agreements assigned to Buyer pursuant to this Agreement; (d) Tax and utility company deposits, if any; (e) Fees for any assignable permits or licenses; (f) New York State Division of Housing and Community Renewal, Realty Advisory Board or Rent Stabilization Association dues and any registration or filing fees with any other governmental authority engaged in rent or housing regulation; and (g) All other adjustments as are usual in a real estate closing in accordance with the customs and practice for comparable closings of comparable buildings in New York, New York, except if specifically set forth to the contrary. 4.02 At Closing, Seller shall pay to Buyer (or credit against the Purchase Price) the amount of any security deposits held by Seller (and interest thereon (less any portion to which Seller is entitled as an administrative fee for the period prior to Closing) if the relevant lease provides that interest accrues to the tenant). Buyer shall indemnify and hold Seller free and harmless from any claims by tenants or others with regard to such deposits (and interest, if any) actually delivered or credited to Buyer, which obligation shall survive the Closing Date and delivery of the Deed. Seller shall indemnify and hold Buyer free and harmless from any claims by tenants pursuant to their leases with regard to the period prior to the Closing, which obligation shall survive the Closing Date and delivery of the Deed. 4.03 If any tenant is in arrears in the payment of rent on the Closing Date, Seller and Buyer shall agree upon a statement (“Delinquency Statement”) of all rentals delinquent as of Closing. Rentals are “delinquent” when payment thereof is due on or prior to the Closing but has not been made by the Closing. Any rental payments received subsequent to Closing by Seller or Buyer shall immediately be applied as follows: all rentals received subsequent to Closing shall be remitted to Buyer or applied first to any rentals and other charges due and payable for periods subsequent to Closing, and then any rentals shall be remitted to Seller or applied to delinquent rentals. Any rental payment received by a party that, pursuant to the previous sentence, is owed to the other party shall be remitted to the other party within ten (10) days after receipt. Subsequent to Closing, Seller shall have no right to pursue any rentals on its own account against any remaining tenant under a Lease assigned to Buyer at Closing. The terms of this Section 4.03 shall survive Closing and not be merged therein. 4.04 Seller shall pay all installments of special assessments due and payable, or attributable to the period, prior to the Closing Date, and Buyer shall pay all installments of special assessments due and payable on, or attributable to the period from and after the Closing Date. 4.05 Notwithstanding anything to the contrary contained in this Agreement, Seller shall attempt to obtain readings of the water meters affecting the Subject Premises to a date no earlier than thirty (30) days prior to the Closing. At or prior to Closing, Seller shall pay all charges based upon such meter readings, adjusted to include a reasonable estimate of the additional charges due for the period from the dates of the respective readings until the Closing Date. However, if Seller is unable to obtain readings of any meters prior to Closing, Closing shall be completed without such readings and upon the obtaining thereof after Closing, Seller shall pay the charges incurred prior to the Closing as reasonably determined by Seller based upon such readings; and at Closing, Seller shall deposit with the Title Company an amount reasonably estimated by Seller to represent the anticipated obligation of Seller under this sentence. This Section 4.05 shall survive the Closing. 4.06 Seller shall pay, at or prior to Closing, all leasing costs in connection with the Leases including, without limitation, brokerage commissions, tenant concessions and attorneys’ fees to the extent such costs are then due and payable, have been incurred and/or are attributable to the period prior to the Closing. For the avoidance of doubt, all brokerage commissions and monetary concessions with respect to the initial term of any Lease (but, in no event, any renewal or option periods) shall be deemed to be attributable to the period prior to the Closing. 4.07 To the extent that any final information necessary to cause the foregoing prorations to be made on the Closing Date is not available at the Closing Date, the amount of any adjustment described in this Section shall be estimated and paid at the Closing Date based upon the best information available to Seller and Buyer at the time and shall be adjusted no later than the date that is six (6) months following the Closing Date. If there is a dispute between the parties regarding any such adjustment, such dispute may be submitted for determination by either party to a nationally recognized certified public accounting firm reasonably and mutually selected by the parties. The determination of such firm shall be final and conclusive on the parties and judgment may be entered thereon in any court of competent jurisdiction. The rules of the American Arbitration Association applicable to commercial arbitrations shall apply to any such arbitration. The parties shall make the appropriate adjusting payment between them within thirty (30) days after such adjustment is determined. The foregoing obligations in this Section 4.07 shall survive the Closing, any other provision hereof to the contrary notwithstanding. 4.08 Seller acknowledges that Buyer has advised Seller that an owner of beneficial interests in Buyer (the “Public Company Owner”) may be required to make certain filings with the Securities and Exchange Commission (the “SEC Filings”) that relate to the most recent pre-acquisition fiscal year and the current fiscal year through the Closing Date. Seller agrees to use commercially reasonable efforts to assist the Public Company Owner in preparing the SEC Filings and to provide access to Seller’s information reasonably required in connection thereto at no additional cost to Seller. In that regard, Seller acknowledges that as a publicly traded company, the Public Company Owner will be required after Closing to comply with certain requirements of the Securities and Exchange Commission; accordingly, Seller shall use commercially reasonable efforts to comply with the provisions set forth in Exhibit “K” attached hereto and made a part hereof in order to facilitate such compliance by Buyer; provided that, notwithstanding anything contained in this Agreement or in Exhibit “K” to the contrary, it is understood and agreed that Seller will not be exposed to any liability on account thereof and shall not be required to incur any unreimbursed expense in connection therewith.
Appears in 1 contract
APPORTIONMENTS AND ADJUSTMENTS. 4.01 (a) The following apportionments shall be made for each Subject Premises between the Buyer and the respective Seller of such Subject Premises parties at the Closing as of midnight 11:59 pm (EST) of the day preceding the Closing Date (the “Apportionment Time”):Date:
(ai) Collected collected rents and additional rents (subject to the provisions of as more particularly set forth in Section 4.035(c));
(iii) All real estate taxes, sewer taxes and any general or special assessments imposed upon the Property, (ii) any fee, tax or charge imposed by any governmental authority for any vaults, vault space or other space within or outside the boundaries of the Property, and (iii) any taxes or assessments levied in whole or in part for public benefits to the Property, including any business improvement district taxes (or similar taxes) affecting the Property)charges, if any, on the basis of the fiscal period for which assessedan accrued basis. If the Closing shall occur before a new tax rate is fixed, the apportionment of taxes at the Closing shall be upon the basis of the old tax rate for the preceding period applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed recomputed. Any discrepancy resulting from such recomputation as well as any errors or omissions in accordance with Section 4.06computing all other apportionments at Closing shall be promptly corrected, which obligations shall survive the Closing for a period of twelve (12) months;
(ciii) Payments payments due or payable under any Assumed Service Agreements assigned to Buyer pursuant to this AgreementAgreements;
(div) utility charges pursuant to readings obtained not more than thirty (30) days prior to Closing;
(v) Tax and utility company deposits, if any;
(evi) Fees for any assignable permits or licenses;
(f) New York State Division of Housing and Community Renewal, Realty Advisory Board or Rent Stabilization Association dues and any registration or filing fees with any other governmental authority engaged in rent or housing regulation; and
(gvii) All other adjustments as are usual in a real estate closing in accordance with the customs and practice for comparable title closings established by the Real Estate Board of comparable buildings in New York, New York, except if specifically set forth to the contrarycontrary in this Agreement or the SPA.
4.02 (b) At Closing, each Seller shall pay to Buyer (or credit against the Purchase Price) the amount of any security deposits held by such Seller (and interest thereon (less any portion to which Seller is entitled as an administrative fee for the period prior to Closing) if the relevant lease Lease provides that interest accrues to the tenant). Buyer shall indemnify and hold Seller free and harmless from any claims by tenants or others with regard to such deposits (and interest, if any) actually delivered or credited to Buyer, which obligation shall survive the Closing Date and delivery of the Deed. Seller shall indemnify and hold Buyer free and harmless from any claims by tenants pursuant to their leases with regard to the period prior to the Closing, which obligation shall survive the Closing Date and delivery of the Deed.
4.03 (c) If any tenant is in arrears in the payment of rent on the Closing Date, Seller and Buyer all rents received from such tenant after the Closing shall agree upon a statement (“Delinquency Statement”) be applied in the following order of all rentals delinquent as of Closing. Rentals are “delinquent” when payment thereof priority: first to the month in which the Closing occurs; next to any month or months following the month in which the Closing occurs for which rent is due on or and owing; next to the month preceding the month in which the Closing occurs; and next to the period prior to the month preceding the month in which the Closing occurs. Unpaid rent payable by former tenants for any period prior to the Closing but has not been made by the Closing. Any rental payments received subsequent to Closing by Seller or Buyer shall immediately be applied as follows: all rentals received subsequent to Closing Date shall be remitted paid to Buyer the applicable Seller when received.
(d) If, on the Closing Date, a Subject Premises or applied first to any rentals and other charges part thereof is affected by any assessment which is payable in installments, then applicable Seller shall be responsible for any installments that shall become due and payable for periods subsequent to Closing, and then any rentals shall be remitted to Seller or applied to delinquent rentals. Any rental payment received by a party that, pursuant to the previous sentence, is owed to the other party shall be remitted to the other party within ten (10) days after receipt. Subsequent to Closing, Seller shall have no right to pursue any rentals on its own account against any remaining tenant under a Lease assigned to Buyer at Closing. The terms of this Section 4.03 shall survive Closing and not be merged therein.
4.04 Seller shall pay all installments of special assessments due and payable, or attributable to the period, prior to the Closing Date, and Buyer shall pay all unpaid installments of special assessments such assessment which become due and payable on, on or attributable to the period from and after the Closing DateDate shall be the obligation of the Buyer.
4.05 (e) Notwithstanding anything to the contrary contained in this Agreement, Seller Sellers shall attempt to obtain readings of the water meters affecting the Subject Premises to a date no earlier than thirty (30) days prior to the ClosingClosing (unless such water meter measures charges which are paid by a tenant of the Subject Premises directly). At or prior to Closing, Seller Sellers shall pay all charges based upon such meter readingsreadings (unless such water meter measures charges which are paid by a tenant of the Subject Premises directly), adjusted to include a reasonable estimate of the additional charges due for the period from the dates of the respective readings until the Closing Date. However, if Seller is Sellers are unable to obtain readings of any meters prior to Closing, Closing shall be completed without such readings and upon the obtaining thereof after Closing, Seller Sellers shall pay the charges incurred prior to the Closing as reasonably determined by Seller Sellers based upon such readings; and at Closing, Seller Sellers shall deposit with the Title Company an amount reasonably estimated by Seller Sellers (subject to Title Company’s and Xxxxx’s approval) to represent the anticipated obligation of Seller Sellers under this sentencesentence and Sellers will be responsible to pay all such charges in full through the Closing Date. This Section 4.05 5 shall survive the Closing.
4.06 Seller shall pay, at or prior to Closing, all leasing costs in connection with the Leases including, without limitation, brokerage commissions, tenant concessions and attorneys’ fees to the extent such costs are then due and payable, have been incurred and/or are attributable to the period prior to the Closing. For the avoidance of doubt, all brokerage commissions and monetary concessions with respect to the initial term of any Lease (but, in no event, any renewal or option periods) shall be deemed to be attributable to the period prior to the Closing.
4.07 To the extent that any final information necessary to cause the foregoing prorations to be made on the Closing Date is not available at the Closing Date, the amount of any adjustment described in this Section shall be estimated and paid at the Closing Date based upon the best information available to Seller and Buyer at the time and shall be adjusted no later than the date that is six (6) months following the Closing Date. If there is a dispute between the parties regarding any such adjustment, such dispute may be submitted for determination by either party to a nationally recognized certified public accounting firm reasonably and mutually selected by the parties. The determination of such firm shall be final and conclusive on the parties and judgment may be entered thereon in any court of competent jurisdiction. The rules of the American Arbitration Association applicable to commercial arbitrations shall apply to any such arbitration. The parties shall make the appropriate adjusting payment between them within thirty (30) days after such adjustment is determined. The foregoing obligations in this Section 4.07 shall survive the Closing, any other provision hereof to the contrary notwithstanding.
4.08 Seller acknowledges that Buyer has advised Seller that an owner of beneficial interests in Buyer (the “Public Company Owner”) may be required to make certain filings with the Securities and Exchange Commission (the “SEC Filings”) that relate to the most recent pre-acquisition fiscal year and the current fiscal year through the Closing Date. Seller agrees to use commercially reasonable efforts to assist the Public Company Owner in preparing the SEC Filings and to provide access to Seller’s information reasonably required in connection thereto at no additional cost to Seller. In that regard, Seller acknowledges that as a publicly traded company, the Public Company Owner will be required after Closing to comply with certain requirements of the Securities and Exchange Commission; accordingly, Seller shall use commercially reasonable efforts to comply with the provisions set forth in Exhibit “K” attached hereto and made a part hereof in order to facilitate such compliance by Buyer; provided that, notwithstanding anything contained in this Agreement or in Exhibit “K” to the contrary, it is understood and agreed that Seller will not be exposed to any liability on account thereof and shall not be required to incur any unreimbursed expense in connection therewith.
Appears in 1 contract
Samples: Stock Purchase Agreement (EnerSys)
APPORTIONMENTS AND ADJUSTMENTS. 4.01 A. Subject to the provisions of subparagraph B of this Paragraph, Seller shall bear all responsibility arising out of, resulting from, or in connection with, the operation of the Hotel prior to the Closing Date, and Purchaser will bear all such liabilities accruing from and after the Closing Date. Subject to the provisions of subparagraph B of this Paragraph, the following matters and items pertaining to the Hotel Assets and the operation of the Hotel shall be apportioned between Seller and Purchaser, or, where applicable, credited to either Seller or Purchaser: (i) Hotel account receivables and payables (ii) Taxes and assessments, (iii) Tenant Lease deposits, Hotel Contract deposits, Equipment Lease deposits, and security deposits and payments made pursuant to telephone, telex, and contracts for the supply of utilities, (iv) Tenant Leases, (v) Hotel Contracts, (vi) Equipment Leases, (vii) Deposits on advance bookings, (viii) the Cash Accounts, (ix) the inventories and supplies referred to in subparagraph B, (x) Employee salaries and benefits, and (xi) such other items as are normally prorated and adjusted in similar transactions of this type in respect of a hotel in New York City. Net credits in favor of Purchaser shall be credited against the Purchase Price at the Closing, and net credits in favor of Seller shall be paid by Purchaser to Seller at the Closing, in addition to the Purchase Price. Seller and Purchaser shall make such joint inventories, examinations, and audits of the Hotel, and of the books and records thereof, as are deemed necessary to make the adjustments and prorations described herein. Based upon such inventories, examinations, and audits Seller shall cause to be prepared and delivered to Purchaser no later than two (2) business days prior to the Closing a statement (the "Closing Statement") showing Seller's best estimate of the amount of the adjustments and prorations to be made at the Closing.
B. In making the apportionments described in subparagraph A of this Paragraph, Purchaser shall be entitled to receive without adjustment to the Purchase Price (1) the Cash Accounts to the extent the aggregate amount therein does not exceed One Million Five Hundred Thousand Dollars and No Cents ($1,500,000.00) on the Closing Date, and (2) all inventories of unopened containers of food and (subject to the regulations of the State Liquor Authority) liquor and all new and unused inventories of china, glassware, silverware, linens, and other consumable supplies in unbroken packages on the Closing Date. Seller shall leave the sum of One Million Five Hundred Thousand Dollars and No Cents ($1,500,000.00) in the Cash Accounts on the Closing Date, and all cash in the Cash Accounts in excess of One Million Five Hundred Thousand Dollars and No Cents ($1,500,000.00) shall be removed by Seller on or before the Closing Date. On the Closing Date Seller and Purchaser shall jointly perform or cause to be performed an accounting of the Cash Accounts. The following apportionments items shall be made adjusted between Purchaser and Seller as of 12:01 A.M. (unless another time is specified below) on the parties Closing Date:
(i) Purchaser shall receive a credit for all deposits from tenants, guests of the Hotel or group or banquet customers (including interest earned thereon to the extent payable or creditable to such tenants, guests or customers) in the possession of Seller or the Operator (collectively "Guest Deposits") which represent advance payment for rooms and services to be provided on or after the Closing Date, and Seller shall retain all such deposits.
(ii) Purchaser shall collect all guest room, food, beverage and other revenues of the Hotel payable by guests listed on the current "guest ledger" at the Hotel on the Closing Date and Seller shall at the Closing receive a credit for all amounts owing by such guests, as shown on such ledger (less 5% of midnight of non- credit card receivables for bad debt allowance) for the day preceding period up to and including the night immediately prior to the Closing Date (the “Apportionment Time”):Date.
(aiii) Collected All fixed rents, escalation charges, percentage rents and additional rents (subject to the provisions of Section 4.03);
(i"Rents") All real estate taxes under Tenant Leases and any general or special assessments imposed upon the Property, (ii) any fee, tax or charge imposed by any governmental authority for any vaults, vault space or other space within or outside the boundaries Hotel Contracts shall be prorated as of the Property, and (iii) any taxes or assessments levied in whole or in part for public benefits to the Property, including any business improvement district taxes (or similar taxes) affecting the Property), if any, on the basis of the fiscal period for which assessedClosing Date. If the Closing shall occur before a new tax rate is fixed, the apportionment of taxes at the Closing shall be upon the basis of the old tax rate for the preceding period applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed in accordance with Section 4.06;
(c) Payments due or payable under any Service Agreements assigned to Buyer pursuant to this Agreement;
(d) Tax and utility company deposits, if any;
(e) Fees for any assignable permits or licenses;
(f) New York State Division of Housing and Community Renewal, Realty Advisory Board or Rent Stabilization Association dues and any registration or filing fees with any other governmental authority engaged in rent or housing regulation; and
(g) All other adjustments as are usual in a real estate closing in accordance with the customs and practice for comparable closings of comparable buildings in New York, New York, except if specifically set forth to the contrary.
4.02 At Closing, Seller shall pay to Buyer (or credit against the Purchase Price) the amount of any security deposits held by Seller (and interest thereon (less any portion to which Seller is entitled as an administrative fee for the period prior to Closing) if the relevant lease provides that interest accrues to the tenant). Buyer shall indemnify and hold Seller free and harmless from any claims by tenants or others with regard to such deposits (and interest, if any) actually delivered or credited to Buyer, which obligation shall survive the Closing Date and delivery of the Deed. Seller shall indemnify and hold Buyer free and harmless from any claims by tenants pursuant to their leases with regard to the period prior to the Closing, which obligation shall survive the Closing Date and delivery of the Deed.
4.03 If any tenant is in arrears in the payment of rent Rent on the Closing Date, Rent received from such tenant after such Closing shall be received in trust by Purchaser and shall be applied in the following order of priority: (a) first to the month in which the Closing Date occurs (subject to adjustments as herein provided); (b) then to the month preceding the month in which the Closing Date occurs; (3) then to any amounts remaining due to Purchaser from such tenant; and (d) then to any amounts due to Seller and Buyer shall agree upon a statement (“Delinquency Statement”) from such tenant in respect of all rentals delinquent as of Closing. Rentals are “delinquent” when payment thereof is due on or any months prior to the month preceding the month in which such Closing occurs. Seller shall provide Purchaser with a statement listing each tenant that is in arrears, and setting forth the amount of such arrears. Notwithstanding anything to the contrary set forth in this subdivision, Rents which relate to a period or periods occurring prior to and after the Closing Date but has which are not been made due, by the Closing. Any rental payments received subsequent terms of the applicable Tenant Lease or Hotel Contract pursuant to which such Rents are payable, until after the Closing by Seller or Buyer shall immediately be applied Date (such as follows: all rentals received subsequent to Closing rents based on a percentage of gross income of the tenant) (collectively, "Delayed Rent Payments"), shall be remitted to Buyer prorated, as and when received, as of the Closing Date based upon the respective portions of such period or applied first to any rentals periods occurring before and other charges due and payable for periods subsequent to Closing, and then any rentals shall be remitted to Seller or applied to delinquent rentals. Any rental payment received by a party that, pursuant to the previous sentence, is owed to the other party shall be remitted to the other party within ten (10) days after receipt. Subsequent to Closing, Seller shall have no right to pursue any rentals on its own account against any remaining tenant under a Lease assigned to Buyer at Closing. The terms of this Section 4.03 shall survive Closing and not be merged therein.
4.04 Seller shall pay all installments of special assessments due and payable, or attributable to the period, prior to the Closing Date, and Buyer shall pay not be applied in the priority set forth in the immediately preceding sentence. If all installments or any portion of special assessments due and a payment of Rents received by Seller or Purchaser after the Closing Date are payable on, or attributable to the other party pursuant to the provisions of this subdivision, the appropriate sum, less a proportionate share of reasonable attorneys' fees and other reasonable collection charges, shall be promptly paid to the other party. Seller shall have the right to use any legal process proceedings against any tenant to collect delinquent Rents for the period from prior to the month preceding the month in which the Closing Date occurs, provided, however, that Seller shall not have the right to commence eviction or summary dispossess proceedings against such delinquent tenants. Upon request Purchaser shall, and shall direct its hotel operator to, execute and deliver to Seller an assignment evidencing such right of Seller. Without limiting the generality of Seller's right to post-closing access to the books and files of the Hotel in accordance with the provisions of Paragraph 30 hereof, Seller shall have the right to examine and audit the books and records of the Hotel with respect to the collection of such Rents.
(iv) Wages, salaries, payroll taxes, contributions due in respect of Federal Social Security tax and other fringe benefits for all the Employees shall be apportioned as of the beginning of the "day shift" on the Closing Date and Purchaser shall cause all such amounts which accrue for services rendered after the Closing Date to be paid.
(v) Hotel utility charges shall be prorated as of the Closing Date with Seller responsible for utility charges up to the Closing Date and Purchaser responsible for the period on and after the Closing Date.
4.05 Notwithstanding anything to the contrary contained in this Agreement, . Seller shall attempt endeavor to obtain final meter readings of on the water meters affecting the Subject Premises to a date no earlier than thirty (30) days prior to the Closing. At or prior to Closing, Seller Closing Date and shall pay all amounts shown on the final bills rendered in connecting with such final readings. Any unfixed utility charges based upon such meter readings, adjusted to include a reasonable estimate shall be apportioned on the basis of the additional charges due rate of consumption indicated by the most recent applicable xxxx, with a reapportionment as soon as the actual xxxx(s) become available.
(vi) All amounts payable to the Operator by Seller under the Management Agreement shall be paid by Seller, including, without limitation, any costs relating to the termination of the Management Agreement.
(vii) All Hotel Accounts Receivable, as hereinafter defined, (other than Rents which shall be treated as provided in subdivision (iii) of this subparagraph, and room revenue and food, beverage and other revenues included in the current "guest ledger", which shall be treated as provided in subdivision (ii) of this subparagraph, and all other ordinary and customary items of income (including, without limitation, all vending machine receipts and all monies received in connection with catering, banquet, bar and restaurant services at the Hotel) originating prior to 12:01 A.M. on the Closing Date (or, as to restaurant and bar income, as of the closing time of each such bar and restaurant, if such closing time is later than 12:01 A.M.) shall belong to Seller. Purchaser shall take all reasonable steps to collect such Accounts Receivable for the period from the dates account of the respective readings until the Closing DateSeller, but Purchaser shall not be required to commence legal proceedings to do so. However, if Seller is unable to obtain readings of any meters prior to Closing, Closing shall be completed without such readings and upon the obtaining thereof after Closing, Seller shall pay the charges responsible for all Hotel Accounts Payable incurred prior to the Closing as reasonably determined by Date and shall cause the same to be paid in accordance with its historical payment practices and procedures.
C. The provisions of this Paragraph may not specify all adjustments properly to be made in connection with the Transaction. Representatives of Purchaser and Seller shall perform all of the adjustments through the Closing Date and any and all other adjustments not specifically referred to herein which are appropriate and usual. The adjustments hereunder shall be calculated or paid in an amount based upon such readings; a fair and at Closing, Seller shall deposit with the Title Company an amount reasonably reasonable estimated accounting performed and agreed to by Seller to represent the anticipated obligation representatives of Seller under and Purchaser on the Closing Date. Subsequent final adjustments and payments (including the bad debt allowance referred to in subdivision (ii) of subparagraph B of this sentenceParagraph, which shall be adjusted based upon the actual amount of bad debt experience on account of all amounts owing by guests listed on the guest ledger) shall be made in cash or other immediately available funds as soon as practicable after the Closing Date, but in any event within ninety (90) days after such Closing Date, except for adjustments and payments relating to Delayed Rent Payments and Rents which are in arrears, each of which shall be treated in the manner provided for elsewhere in this Paragraph, but in any event within ninety (90) days after such Closing Date, based upon an agreed accounting performed by representatives of Seller and Purchaser. This Section 4.05 In the event the parties have not agreed with respect to the adjustments required to be made pursuant to this Paragraph within such 90-day period, upon application by either party, the parties shall submit the issue to the accounting firm of Price Waterhouse for determination. The parties shall share the costs and expenses of the accountant.
D. The provisions of this Paragraph, and the obligations of Seller and Purchaser with respect to closing adjustments shall survive the Closing.
4.06 Seller shall pay, at or prior to Closing, all leasing costs in connection with the Leases including, without limitation, brokerage commissions, tenant concessions and attorneys’ fees to the extent such costs are then due and payable, have been incurred and/or are attributable to the period prior to the Closing. For the avoidance of doubt, all brokerage commissions and monetary concessions with respect to the initial term of any Lease (but, in no event, any renewal or option periods) shall be deemed to be attributable to the period prior to the Closing.
4.07 To the extent that any final information necessary to cause the foregoing prorations to be made on the Closing Date is not available at the Closing Date, the amount of any adjustment described in this Section shall be estimated and paid at the Closing Date based upon the best information available to Seller and Buyer at the time and shall be adjusted no later than the date that is six (6) months following the Closing Date. If there is a dispute between the parties regarding any such adjustment, such dispute may be submitted for determination by either party to a nationally recognized certified public accounting firm reasonably and mutually selected by the parties. The determination of such firm shall be final and conclusive on the parties and judgment may be entered thereon in any court of competent jurisdiction. The rules of the American Arbitration Association applicable to commercial arbitrations shall apply to any such arbitration. The parties shall make the appropriate adjusting payment between them within thirty (30) days after such adjustment is determined. The foregoing obligations in this Section 4.07 shall survive the Closing, any other provision hereof to the contrary notwithstanding.
4.08 Seller acknowledges that Buyer has advised Seller that an owner of beneficial interests in Buyer (the “Public Company Owner”) may be required to make certain filings with the Securities and Exchange Commission (the “SEC Filings”) that relate to the most recent pre-acquisition fiscal year and the current fiscal year through the Closing Date. Seller agrees to use commercially reasonable efforts to assist the Public Company Owner in preparing the SEC Filings and to provide access to Seller’s information reasonably required in connection thereto at no additional cost to Seller. In that regard, Seller acknowledges that as a publicly traded company, the Public Company Owner will be required after Closing to comply with certain requirements of the Securities and Exchange Commission; accordingly, Seller shall use commercially reasonable efforts to comply with the provisions set forth in Exhibit “K” attached hereto and made a part hereof in order to facilitate such compliance by Buyer; provided that, notwithstanding anything contained in this Agreement or in Exhibit “K” to the contrary, it is understood and agreed that Seller will not be exposed to any liability on account thereof and shall not be required to incur any unreimbursed expense in connection therewith.E. As used herein:
Appears in 1 contract
APPORTIONMENTS AND ADJUSTMENTS. 4.01 The 8.1 Except as provided in Section 8.5 below, Seller shall be responsible for and shall pay all accrued expenses with respect to the Project accruing up to 11:59 p.m. on the Closing Date and shall be entitled to receive and retain all revenue from the Project accruing up to the Closing Date.
8.2 On the Closing Date, the following adjustments and apportionments shall be made between the parties at the Closing in cash as of midnight of the day preceding the Closing Date (the “Apportionment Time”):follows:
(a) Collected Rents for the month in which the Closing Date occurs (the "Closing Month") as and when collected. If past due rents and additional rents (subject are owing by tenants for any period prior to the provisions Closing Month (the "Rent Arrearages"), then after request made by Seller subsequent to the Closing Date, Purchaser shall xxxx all tenants for such sums, provided, however, that Purchaser shall have no liability or responsibility for the collection of Section 4.03);
(i) All real estate taxes any such Rent Arrearages. Seller shall be entitled to those funds received by Purchaser from tenants having Rent Arrearages after the Closing Date, only where such funds are in payment of such Rent Arrearages and any general are excess of amounts then owing or special assessments imposed upon otherwise required to be paid to Purchaser from such tenants. Notwithstanding the Propertyforegoing, (ii) any fee, tax or charge imposed by any governmental authority for any vaults, vault space or other space within or outside the boundaries of the Property, and (iii) any taxes or assessments levied in whole or in part for public benefits to the Property, including any business improvement district taxes (or similar taxes) affecting the Property), if any, "pass-through" expenses which are collected from tenants on the basis of Seller's estimates of such expenses, promptly following the end of the fiscal period for which assessed. If such estimated expenses are allocable, Seller and Purchaser shall determine the Closing actual expenses allocable to such period and shall occur before a new tax rate is fixed, adjust for any difference between the apportionment estimated expenses and the actual expenses and the responsible party promptly shall pay the other the amount of taxes at the Closing shall be upon the basis of the old tax rate for the preceding period applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed in accordance with Section 4.06;any such difference.
(cb) Payments due or payable under any Service Agreements assigned to Buyer pursuant to this Agreement;
(d) Tax Real estate taxes, ad valorem taxes, school taxes, annual assessments and utility company depositspersonal property, intangible and use taxes, if any;
(ec) Fees for any assignable permits or licenses;
(f) New York State Division of Housing and Community Renewal, Realty Advisory Board or Rent Stabilization Association dues and any registration or filing fees with any other governmental authority engaged Charges under service contracts affecting the Project which Purchaser has agreed in rent or housing regulationwriting to assume on the Closing Date; and
(gd) All other adjustments as are usual in Water and sewer charges on the basis of the period for which assessed; provided that if a real estate closing in accordance final xxxx is not available at Closing, a reasonable estimate will be made based on prior bills and an amount reasonably estimated to be adequate to pay such charges through the Closing Date shall be escrowed with the customs and practice for comparable closings Purchaser pending receipt of comparable buildings in New York, New York, except if specifically set forth to the contraryfinal bills.
4.02 8.3 At the Closing, Seller shall pay to Buyer (or Purchaser will receive a further credit against the Purchase Price) Price in an amount equal to all existing tenant and/or common area improvement allowances for any work that is in process in an aggregate amount equal to the amount of any security deposits held by Seller (and interest thereon (less any portion to total sums which Seller is entitled has contracted to pay the affected tenants under existing Tenant Leases. The foregoing shall not apply, however, to tenant improvements scheduled to be made to (or any leasing commission owing in respect of) Suite 303 (1,344 RSF), for Northwest Nephrology Clinic, and as an administrative fee for the period prior to Closing) if the relevant lease provides that interest accrues to the tenant). Buyer shall indemnify and hold Seller free and harmless from any claims by tenants or others with regard to such suite, Purchaser shall assume and pay such costs.
8.4 At the Closing, Purchaser will receive a further credit against the Purchase Price in an amount equal to all unapplied security deposits (and interest, if any) payable to tenants under Tenant Leases in effect on the Closing Date. Upon making such credit, Purchaser will be deemed to have received all such security deposits and shall be fully responsible for the same as if a cash amount equal to such security deposits were actually delivered or credited to Buyer, which obligation shall survive the Closing Date and delivery of the DeedPurchaser. Seller shall indemnify and hold Buyer free and harmless from any claims by tenants pursuant to their leases with regard to During the period prior to the Closing, which obligation Seller agrees to obtain Purchaser's prior written consent, such consent not to be unreasonably withheld, before applying any security deposit(s), or portions thereof, against any tenant default pursuant to the terms of the defaulting tenant's lease.
8.5 If the Purchase Price is transmitted by wire transfer pursuant to Seller's order by 12:00 Noon (EST or EDT as applicable) on the day of closing, then in making the prorations and adjustments at closing, Purchaser will receive the benefit of the Rents and the burden of Property expenses for the day of closing. If transmitted thereafter, Seller will receive the benefit of the Rents and the burden of Property expenses for the day of closing.
8.6 At the Closing, Purchaser will receive a further credit against the Purchase Price in the amount of any prepaid rents in respect of the Tenant Leases.
8.7 At the Closing, a further credit to the Purchase Price shall be made to fund the "Parking Revenue Escrow Account" described in Section 15.1.
8.8 The provisions of this Article 8 shall survive the Closing Date closing of title and the delivery of the Deed.
4.03 If any tenant is in arrears in the payment of rent on the Closing Date, Seller and Buyer shall agree upon a statement (“Delinquency Statement”) of all rentals delinquent as of Closing. Rentals are “delinquent” when payment thereof is due on or prior to the Closing but has not been made by the Closing. Any rental payments received subsequent to Closing by Seller or Buyer shall immediately be applied as follows: all rentals received subsequent to Closing shall be remitted to Buyer or applied first to any rentals and other charges due and payable for periods subsequent to Closing, and then any rentals shall be remitted to Seller or applied to delinquent rentals. Any rental payment received by a party that, pursuant to the previous sentence, is owed to the other party shall be remitted to the other party within ten (10) days after receipt. Subsequent to Closing, Seller shall have no right to pursue any rentals on its own account against any remaining tenant under a Lease assigned to Buyer at Closing. The terms of this Section 4.03 shall survive Closing and not be merged therein.
4.04 Seller shall pay all installments of special assessments due and payable, or attributable to the period, prior to the Closing Date, and Buyer shall pay all installments of special assessments due and payable on, or attributable to the period from and after the Closing Date.
4.05 Notwithstanding anything to the contrary contained in this Agreement, Seller shall attempt to obtain readings of the water meters affecting the Subject Premises to a date no earlier than thirty (30) days prior to the Closing. At or prior to Closing, Seller shall pay all charges based upon such meter readings, adjusted to include a reasonable estimate of the additional charges due for the period from the dates of the respective readings until the Closing Date. However, if Seller is unable to obtain readings of any meters prior to Closing, Closing shall be completed without such readings and upon the obtaining thereof after Closing, Seller shall pay the charges incurred prior to the Closing as reasonably determined by Seller based upon such readings; and at Closing, Seller shall deposit with the Title Company an amount reasonably estimated by Seller to represent the anticipated obligation of Seller under this sentence. This Section 4.05 shall survive the Closing.
4.06 Seller shall pay, at or prior to Closing, all leasing costs in connection with the Leases including, without limitation, brokerage commissions, tenant concessions and attorneys’ fees to the extent such costs are then due and payable, have been incurred and/or are attributable to the period prior to the Closing. For the avoidance of doubt, all brokerage commissions and monetary concessions with respect to the initial term of any Lease (but, in no event, any renewal or option periods) shall be deemed to be attributable to the period prior to the Closing.
4.07 To the extent that any final information necessary to cause the foregoing prorations to be made on the Closing Date is not available at the Closing Date, the amount of any adjustment described in this Section shall be estimated and paid at the Closing Date based upon the best information available to Seller and Buyer at the time and shall be adjusted no later than the date that is six (6) months following the Closing Date. If there is a dispute between the parties regarding any such adjustment, such dispute may be submitted for determination by either party to a nationally recognized certified public accounting firm reasonably and mutually selected by the parties. The determination of such firm shall be final and conclusive on the parties and judgment may be entered thereon in any court of competent jurisdiction. The rules of the American Arbitration Association applicable to commercial arbitrations shall apply to any such arbitration. The parties shall make the appropriate adjusting payment between them within thirty (30) days after such adjustment is determined. The foregoing obligations in this Section 4.07 shall survive the Closing, any other provision hereof to the contrary notwithstanding.
4.08 Seller acknowledges that Buyer has advised Seller that an owner of beneficial interests in Buyer (the “Public Company Owner”) may be required to make certain filings with the Securities and Exchange Commission (the “SEC Filings”) that relate to the most recent pre-acquisition fiscal year and the current fiscal year through the Closing Date. Seller agrees to use commercially reasonable efforts to assist the Public Company Owner in preparing the SEC Filings and to provide access to Seller’s information reasonably required in connection thereto at no additional cost to Seller. In that regard, Seller acknowledges that as a publicly traded company, the Public Company Owner will be required after Closing to comply with certain requirements of the Securities and Exchange Commission; accordingly, Seller shall use commercially reasonable efforts to comply with the provisions set forth in Exhibit “K” attached hereto and made a part hereof in order to facilitate such compliance by Buyer; provided that, notwithstanding anything contained in this Agreement or in Exhibit “K” to the contrary, it is understood and agreed that Seller will not be exposed to any liability on account thereof and shall not be required to incur any unreimbursed expense in connection therewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Universal Health Realty Income Trust)
APPORTIONMENTS AND ADJUSTMENTS. 4.01 The 11.1 Seller shall be responsible for and shall pay all accrued expenses including, but not limited to, all accounts payable and accrued liabilities, of the Assets to be sold on such Closing Date accruing up to 11:59 P.M. on each such Closing Date and shall be entitled to receive and retain all revenue from the Assets to be sold on such Closing Date accruing up to and including each such Closing Date. Purchaser shall be responsible for and shall pay all accrued expenses, including, but not limited to, all accounts payable and accrued liabilities, of the Assets to be purchased on such Closing Date accruing after each such Closing Date, and shall be entitled to receive and retain all revenue from the Assets purchased on such Closing Date accruing after each such Closing Date.
11.2 Subject to Section 11.4 hereof, on each Closing Date, the following adjustments and apportionments shall be made between the parties at the Closing in cash in accordance with Section 11.1 as of midnight of the day preceding the Closing Date (the “Apportionment Time”):follows:
(a) Collected rents Rents, utilities, CAM charges and additional rents similar items, real estate taxes, ad valorem taxes, school taxes, assessments and personal property, intangible and use taxes (subject excluding any sales, transfer and stamp taxes, if any, which shall be paid by Purchaser, other than sales taxes which may be owed by Seller relating to the provisions of Section 4.03its historical operations and business activities);
(ib) All real estate taxes Charges under service and any general or special assessments imposed upon the Property, (ii) any fee, tax or charge imposed by any governmental authority for any vaults, vault space or other space within or outside the boundaries of the Property, and (iii) any taxes or assessments levied in whole or in part for public benefits to the Property, including any business improvement district taxes (or similar taxes) maintenance contracts affecting the Property), if any, Assets to be sold on such Closing Date which Purchaser has agreed to assume on each such Closing Date; and
(c) Water and sewer charges on the basis of the fiscal period for which assessed. If the ; provided that if a final xxxx is not available at each such Closing, a reasonable estimate will be made based on prior bills and an amount reasonably estimated to be adequate to pay such charges through each such Closing shall occur before a new tax rate is fixed, the apportionment of taxes at the Closing Date shall be upon escrowed with the basis Title Company pending receipt of the old tax rate final bills.
11.3 The parties hereto agree that (i) Purchaser shall not assume, pay, discharge, become liable for the preceding period applied or perform when due, and Seller shall not cause Purchaser so to assume, pay, discharge, become liable for or perform, any liabilities (contingent or otherwise), debts, contracts, commitments and other obligations of Seller of any nature whatsoever to the latest assessed valuation. Promptly extent such liabilities remain unpaid as of each such Closing Date and (ii) Seller shall not assume, pay, discharge, become liable for or perform when due, and Purchaser shall not cause Seller so to assume, pay, discharge, become liable for or perform, any liabilities (contingent or otherwise), debts, contracts, commitments and other obligations of Purchaser of any nature whatsoever to the extent such liabilities are incurred by Purchaser after the new tax rate is fixedeach such Closing Date.
11.4 The parties hereto agree to perform a post-closing settlement, the apportionment of taxes shall be recomputed in accordance with Section 4.06;
(c) Payments due or payable under any Service Agreements assigned to Buyer pursuant to this Agreement;
(d) Tax and utility company deposits11.1, if any;
(e) Fees for any assignable permits or licenses;
(f) New York State Division of Housing and Community Renewal, Realty Advisory Board or Rent Stabilization Association dues and any registration or filing fees with any other governmental authority engaged in rent or housing regulation; and
(g) All other adjustments as are usual in a real estate closing in accordance with the customs and practice for comparable closings of comparable buildings in New York, New York, except if specifically set forth to the contrary.
4.02 At Closing, Seller shall pay to Buyer (or credit against the Purchase Price) the amount of any security deposits held by Seller (and interest thereon (less any portion to which Seller is entitled as an administrative fee for the period prior to Closing) if the relevant lease provides that interest accrues to the tenant). Buyer shall indemnify and hold Seller free and harmless from any claims by tenants or others with regard to such deposits (and interest, if any) actually delivered or credited to Buyer, which obligation shall survive the Closing Date and delivery of the Deed. Seller shall indemnify and hold Buyer free and harmless from any claims by tenants pursuant to their leases with regard to the period prior to the Closing, which obligation shall survive the Closing Date and delivery of the Deed.
4.03 If any tenant is in arrears in the payment of rent on the Closing Date, Seller and Buyer shall agree upon a statement (“Delinquency Statement”) of all rentals delinquent as of Closing. Rentals are “delinquent” when payment thereof is due on or prior to the Closing but has not been made by the Closing. Any rental payments received subsequent to Closing by Seller or Buyer shall immediately be applied as follows: all rentals received subsequent to Closing shall be remitted to Buyer or applied first to any rentals and other charges due and payable for periods subsequent to Closing, and then any rentals shall be remitted to Seller or applied to delinquent rentals. Any rental payment received by a party that, pursuant to the previous sentence, is owed to the other party shall be remitted to the other party within ten (10) days after receipt. Subsequent to Closing, Seller shall have no right to pursue any rentals on its own account against any remaining tenant under a Lease assigned to Buyer at Closing. The terms of this Section 4.03 shall survive Closing and not be merged therein.
4.04 Seller shall pay all installments of special assessments due and payable, or attributable to the period, prior to the Closing Date, and Buyer shall pay all installments of special assessments due and payable on, or attributable to the period from and after the Closing Date.
4.05 Notwithstanding anything to the contrary contained in this Agreement, Seller shall attempt to obtain readings of the water meters affecting the Subject Premises to a date no earlier than thirty (30) days prior to the Closing. At or prior to Closing, Seller shall pay all charges based upon such meter readings, adjusted to include a reasonable estimate of the additional charges due for the period from the dates of the respective readings until the Closing Date. However, if Seller is unable to obtain readings of any meters prior to Closing, Closing shall be completed without such readings and upon the obtaining thereof after Closing, Seller shall pay the charges incurred prior to the Closing as reasonably determined by Seller based upon such readings; and at Closing, Seller shall deposit with the Title Company an amount reasonably estimated by Seller to represent the anticipated obligation of Seller under this sentence. This Section 4.05 shall survive the Closing.
4.06 Seller shall pay, at or prior to Closing, all leasing costs in connection with the Leases including, without limitation, brokerage commissions, tenant concessions and attorneys’ fees to the extent such costs are then due and payable, have been incurred and/or are attributable to the period prior to the Closing. For the avoidance of doubt, all brokerage commissions and monetary concessions with respect to the initial term of any Lease (but, in no event, any renewal or option periods) shall be deemed to be attributable to the period prior to the Closing.
4.07 To the extent that any final information necessary to cause the foregoing prorations to be made on the Closing Date is not available at the Closing Date, the amount of any adjustment described in this Section shall be estimated and paid at the Closing Date based upon the best information available to Seller and Buyer at the time and shall be adjusted no later than the date that is six (6) months following the Closing Date. If there is a dispute between the parties regarding any such adjustment, such dispute may be submitted for determination by either party to a nationally recognized certified public accounting firm reasonably and mutually selected by the parties. The determination of such firm shall be final and conclusive on the parties and judgment may be entered thereon in any court of competent jurisdiction. The rules of the American Arbitration Association applicable to commercial arbitrations shall apply to any such arbitration. The parties shall make the appropriate adjusting payment between them within thirty (30) days after such adjustment is determined. The foregoing obligations each Closing Date, with respect to any accrued expenses referenced in this Section 4.07 shall survive the Closing, any other provision hereof to the contrary notwithstanding11.2 not adjusted or apportioned on each Closing Date.
4.08 Seller acknowledges that Buyer has advised Seller that an owner of beneficial interests in Buyer 11.5 The parties hereto agree to each pay fifty percent (the “Public Company Owner”50%) may be required to make certain filings with the Securities and Exchange Commission (the “SEC Filings”) that relate to the most recent pre-acquisition fiscal year and the current fiscal year through the Closing Date. Seller agrees to use commercially reasonable efforts to assist the Public Company Owner in preparing the SEC Filings and to provide access to Seller’s information reasonably required in connection thereto at no additional cost to Seller. In that regard, Seller acknowledges that as a publicly traded company, the Public Company Owner will be required after Closing to comply with certain requirements of the Securities and Exchange Commissioncosts of the Environmental Study with respect to each Property; accordinglyprovided, Seller shall use commercially reasonable efforts to comply with the provisions set forth in Exhibit “K” attached hereto and made a part hereof in order to facilitate such compliance by Buyer; provided thathowever, notwithstanding anything contained in this Agreement or in Exhibit “K” to the contrary, it is understood and agreed that Seller will not be exposed to any liability on account thereof and shall not be required to incur any unreimbursed expense pay more than $1,000 per Property in connection therewithwith such costs.
11.6 The parties hereto agree to each pay fifty percent (50%) of any and all rent costs and other occupancy costs (including, without limitation, property taxes, CAM charges and utilities) with respect to each Lease which is not acquired by Purchaser at the Initial Closing, other than all such rent and other occupancy costs for the Non-Closing Properties (which shall continue to be paid for by Seller), during the period between the Initial Closing Date and, the earlier of (i) the Subsequent Closing with respect to such Property (and its associated Assets) or (ii) the election by Purchaser in accordance with the provisions of this Agreement not to close with respect to such Property; provided, however, that Purchaser shall be responsible for 100% of such rent and other occupancy costs after the Closing Deadline (as defined in Section 12.2 hereof) unless Purchaser has elected not to close with respect to any such Property (and its associated Assets) in accordance with the provisions of this Agreement.
11.7 The provisions of this Article 11 shall survive each Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Shells Seafood Restaurants Inc)
APPORTIONMENTS AND ADJUSTMENTS. 4.01 The following apportionments items shall be apportioned between Seller and Purchaser as of the date of closing, on the basis that Seller owns the Property on the date of closing:
a. All real estate and personal property taxes and assessments, including all unpaid portions of any general or specific assessments for the year 1998 real estate and personal property taxes and assessments for the year in which the closing occurs, the parties shall adjust and apportion such amounts based upon the discounted amount of such taxes. If closing occurs at a date when the current year's taxes are not fixed, and the current year's assessment is available, taxes will be prorated based upon such assessment and the prior year's millage. If the current year's assessment is not available, taxes will be prorated based on the prior year's taxes. Accordingly, Seller shall be responsible for such taxes from January 1, 1998, to and including the date of closing and Purchaser shall be responsible for such taxes after the day of closing. A final adjustment for such taxes shall be made between the parties at such time as the Closing exact amount of such taxes becomes known.
b. The amount of any and all tenant deposits held or bonded by Seller, or its representatives, as of midnight the date of closing, shall be verified and assigned to Purchaser, including and without limitation security deposits, rental deposits in which a tenant of the day preceding Property has any continuing interest and all interest thereon for which Seller is obligated. Seller shall not apply or forfeit any such security deposit unless the Closing Date (applicable tenant vacates the “Apportionment Time”):Property or is evicted therefrom prior to the date of closing.
c. Seller or an affiliate, Moorings Development and Marketing Corporation, shall be solely responsible to pay, or cause to be paid, prior to closing, all accrued wages, social security, payroll taxes, unemployment compensation, worker's compensation, vacation pay, fringe benefits and items of a similar nature due persons employed in connection with the operation and maintenance of the Property through the closing date. Purchaser may, in its sole discretion, maintain the on-site staff on a trial basis; however, the employment of all persons employed by Seller in connection with the operation and maintenance of the Property shall be terminated at closing, and Seller shall deliver proof of such termination at closing; provided, however, that Seller shall notify Purchaser before actually notifying such persons of the termination of their employment.
d. Purchaser shall receive a credit for all rents and other charges paid by tenants to Seller, or its representatives, applicable to periods subsequent to the date of closing, as if the rent for said month had been timely paid. At the closing, Seller shall deliver to Purchaser a schedule, which shall contain the following information with respect to each mobile home site: rental amount; the date through which rent has been paid; the amount of the security deposit, pet deposit, and any and all other deposits or fees paid by the tenant; and such other information as shall fully advise Purchaser of the occupancy status of each mobile home site. This schedule shall also disclose (a) Collected rents and additional rents (subject to all tenants who are delinquent in the provisions payment of Section 4.03);
(i) All real estate taxes and any general or special assessments imposed upon the Propertyrents, (ii) any fee, tax or charge imposed by any governmental authority for any vaults, vault space or other space within or outside the boundaries of the Property, and (iii) any taxes or assessments levied in whole or in part for public benefits to the Property, including any business improvement district taxes (or similar taxes) affecting the Property), if any, on the basis of the fiscal period for which assessed. If the Closing shall occur before a new tax rate is fixed, the apportionment of taxes at the Closing shall be upon the basis of the old tax rate for the preceding period applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed in accordance with Section 4.06;
(c) Payments due or payable under any Service Agreements assigned to Buyer pursuant to this Agreement;
(d) Tax and utility company deposits, if any;
(e) Fees for any assignable permits or licenses;
(f) New York State Division of Housing and Community Renewal, Realty Advisory Board or Rent Stabilization Association dues and any registration or filing fees with any other governmental authority engaged in rent or housing regulation; and
(g) All other adjustments as are usual in a real estate closing in accordance with the customs and practice for comparable closings of comparable buildings in New York, New York, except if specifically set forth to the contrary.
4.02 At Closing, Seller shall pay to Buyer (or credit against the Purchase Priceb) the amount of any security deposits held by Seller each such delinquency, and (and interest thereon (less any portion c) the period to which Seller is entitled as an administrative fee for each such delinquency relates and the period prior to Closing) if the relevant lease provides that interest accrues to the tenant). Buyer shall indemnify and hold Seller free and harmless from any claims by tenants or others with regard to such deposits (and interest, if any) actually delivered or credited to Buyer, which obligation shall survive the Closing Date and delivery nature of the Deedamount due, itemizing separately fixed monthly rent and any additional charges. Seller shall indemnify and hold Buyer free and harmless from If the tenant under any claims by tenants pursuant to their leases with regard to the period prior to the Closing, which obligation shall survive the Closing Date and delivery of the Deed.
4.03 If any tenant Lease is in arrears in the payment of rent on the Closing Date, Seller and Buyer shall agree upon a statement (“Delinquency Statement”) of all rentals delinquent as date of Closing. Rentals , rents received from such tenant after Closing shall be applied in the following order of priority: (1) first, to the month in which such rents are “delinquent” when payment thereof is due on or received, (2) then to any rent arrearage for months subsequent to the month in which Closing occurs, (3) then to any rent arrearage for the month in which the Closing occurs, (4) then to the period for which the tenant in question was in arrears prior to the Closing but has not been made by month in which the Closingclosing occurs. Any rental payments If all or part of any rents, or any escalation charges for real estate taxes, insurance, operating expenses, or other charges of a similar nature, received subsequent to Closing by Seller or Buyer shall immediately be applied as follows: all rentals received subsequent to Purchaser after Closing shall be remitted to Buyer or applied first to any rentals and other charges due and are payable for periods subsequent to Closing, and then any rentals shall be remitted to Seller or applied to delinquent rentals. Any rental payment received by a party that, pursuant to the previous sentence, is owed to the other party by reason of this allocation, the appropriate sum shall be remitted promptly paid to the other party within ten (10) days after receiptparty. Subsequent Seller shall not receive any credit for delinquent rents at closing; in other words, Purchaser shall not be obliged to "buy" the delinquent rents accruing prior to closing from Seller and rents shall be prorated as if all delinquent rents accruing through the date of closing have been paid. Purchaser agrees to use reasonable efforts, short of filing a legal action, to collect any delinquent rents and Seller shall also have the right to pursue delinquent rents against any tenant that is evicted.
e. The parties shall equitably adjust all water, fuel, and other utility or service charges so that Seller is charged for and pays all such items applicable to periods through and including the date of closing. In this regard, Seller shall, where practicable, cause meters to be read and obtain final invoices through and including the date of closing. Where this is not practicable, the parties shall assume equal per diem use over the period of the billing, and adjustment shall be made accordingly. Seller shall assign any deposits to Purchaser and Seller shall receive a credit therefor on Closing.
f. The Purchase Price is based on the assumption that the Prepayment Fee is $146,660. If the Prepayment Fee is greater than this sum, Purchaser shall receive a credit on closing for the difference. If the Prepayment Fee is less than this sum, Seller shall have no right to pursue any rentals receive a credit on its own account against any remaining tenant under a Lease assigned to Buyer at Closing. The terms of this Section 4.03 shall survive Closing and not be merged thereinclosing for the difference.
4.04 Seller g. All prorations shall pay all installments of special assessments due and payable, or attributable be applied to the period, prior to the Closing Date, and Buyer shall pay all installments of special assessments cash due and payable on, or attributable to the period from and after the Closing Dateat closing.
4.05 Notwithstanding anything to the contrary contained in this Agreement, Seller shall attempt to obtain readings of the water meters affecting the Subject Premises to a date no earlier than thirty (30) days prior to the Closing. At or prior to Closing, Seller shall pay all charges based upon such meter readings, adjusted to include a reasonable estimate of the additional charges due for the period from the dates of the respective readings until the Closing Date. However, if Seller is unable to obtain readings of any meters prior to Closing, Closing shall be completed without such readings and upon the obtaining thereof after Closing, Seller shall pay the charges incurred prior to the Closing as reasonably determined by Seller based upon such readings; and at Closing, Seller shall deposit with the Title Company an amount reasonably estimated by Seller to represent the anticipated obligation of Seller under this sentence. This Section 4.05 shall survive the Closing.
4.06 Seller shall pay, at or prior to Closing, all leasing costs in connection with the Leases including, without limitation, brokerage commissions, tenant concessions and attorneys’ fees to the extent such costs are then due and payable, have been incurred and/or are attributable to the period prior to the Closing. For the avoidance of doubt, all brokerage commissions and monetary concessions with respect to the initial term of any Lease (but, in no event, any renewal or option periods) shall be deemed to be attributable to the period prior to the Closing.
4.07 To the extent that any final information necessary to cause the foregoing prorations to be made on the Closing Date is not available at the Closing Date, the amount of any adjustment described in this Section shall be estimated and paid at the Closing Date based upon the best information available to Seller and Buyer at the time and shall be adjusted no later than the date that is six (6) months following the Closing Date. If there is a dispute between the parties regarding any such adjustment, such dispute may be submitted for determination by either party to a nationally recognized certified public accounting firm reasonably and mutually selected by the parties. The determination of such firm shall be final and conclusive on the parties and judgment may be entered thereon in any court of competent jurisdiction. The rules of the American Arbitration Association applicable to commercial arbitrations shall apply to any such arbitration. The parties shall make the appropriate adjusting payment between them within thirty (30) days after such adjustment is determined. The foregoing obligations in this Section 4.07 shall survive the Closing, any other provision hereof to the contrary notwithstanding.
4.08 Seller acknowledges that Buyer has advised Seller that an owner of beneficial interests in Buyer (the “Public Company Owner”) may be required to make certain filings with the Securities and Exchange Commission (the “SEC Filings”) that relate to the most recent pre-acquisition fiscal year and the current fiscal year through the Closing Date. Seller agrees to use commercially reasonable efforts to assist the Public Company Owner in preparing the SEC Filings and to provide access to Seller’s information reasonably required in connection thereto at no additional cost to Seller. In that regard, Seller acknowledges that as a publicly traded company, the Public Company Owner will be required after Closing to comply with certain requirements of the Securities and Exchange Commission; accordingly, Seller shall use commercially reasonable efforts to comply with the provisions set forth in Exhibit “K” attached hereto and made a part hereof in order to facilitate such compliance by Buyer; provided that, notwithstanding anything contained in this Agreement or in Exhibit “K” to the contrary, it is understood and agreed that Seller will not be exposed to any liability on account thereof and shall not be required to incur any unreimbursed expense in connection therewith.
Appears in 1 contract
APPORTIONMENTS AND ADJUSTMENTS. 4.01 The following apportionments shall items are to be made computed and apportioned between the parties at the Closing Buyer and Seller as of midnight of the day preceding the Closing Date (the “Apportionment Time”):on a per diem and on a 365 day year basis:
(a) Collected Any water and sewer rents and additional rents (subject to the provisions of Section 4.03);not paid directly by Chase.
(ib) All Any real estate taxes and any general or special assessments imposed upon the Property, (ii) any fee, tax or charge imposed not paid directly by any governmental authority for any vaults, vault space or other space within or outside the boundaries of the Property, and (iii) any taxes or assessments levied in whole or in part for public benefits to the Property, including any business improvement district taxes (or similar taxes) affecting the Property), if any, on the basis of the fiscal period for which assessed. If the Closing shall occur before a new tax rate is fixed, the apportionment of taxes at the Closing shall be upon the basis of the old tax rate for the preceding period applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed in accordance with Section 4.06;Chase.
(c) Payments due or Any amounts payable under any Service Agreements assigned to Buyer pursuant to this Agreement;assignable service contracts.
(d) Tax The rents and utility company deposits, if any;charges due under the Lease (“Rents”).
(e) Fees for any assignable permits or licenses;
(f) New York State Division of Housing Any Rents which are due and Community Renewal, Realty Advisory Board or Rent Stabilization Association dues and any registration or filing fees with any other governmental authority engaged in rent or housing regulation; and
(g) All other adjustments as are usual in a real estate closing in accordance with payable under the customs and practice for comparable closings of comparable buildings in New York, New York, except if specifically set forth to the contrary.
4.02 At Closing, Seller shall pay to Buyer (or credit against the Purchase Price) the amount of any security deposits held by Seller (and interest thereon (less any portion to which Seller is entitled as an administrative fee for the period prior to Closing) if the relevant lease provides that interest accrues to the tenant). Buyer shall indemnify and hold Seller free and harmless from any claims by tenants or others with regard to such deposits (and interest, if any) actually delivered or credited to Buyer, which obligation shall survive the Closing Date and delivery of the Deed. Seller shall indemnify and hold Buyer free and harmless from any claims by tenants pursuant to their leases with regard to the period prior to the Closing, which obligation shall survive the Closing Date and delivery of the Deed.
4.03 If any tenant is in arrears in the payment of rent on the Closing Date, Seller and Buyer shall agree upon a statement (“Delinquency Statement”) of all rentals delinquent as of Closing. Rentals are “delinquent” when payment thereof is due Lease on or prior to the Closing Date, but has which have not been made collected by the Closing. Any rental payments received subsequent to Closing by Seller or Buyer Seller, shall immediately be applied as follows: all rentals received subsequent to Closing shall be remitted to Buyer or applied first to any rentals and other charges due and payable for periods subsequent to Closing, and then any rentals shall promptly be remitted to Seller or applied to delinquent rentalsby Buyer in accordance with this subparagraph 10(e), if collected by Buyer. Any rental payment The first of any of Rents received by a party that, pursuant Buyer from Chase subsequent to the previous sentence, is owed to the other party Closing Date shall be remitted to the other party within ten (10) days after receipt. Subsequent to Closing, Seller shall have no right to pursue any rentals retained by Buyer on its own account against any remaining tenant under a Lease assigned to Buyer at Closing. The terms of this Section 4.03 shall survive Closing and not be merged therein.
4.04 Seller shall pay all installments of special assessments Rents then currently due and payable, and any excess Rents received by Buyer shall be promptly remitted to Seller on account of any delinquencies existing for periods prior to closing. Buyer assumes no obligation to collect delinquent Rents on behalf of Seller, other than to use commercially reasonable collection efforts, which efforts shall not require Buyer to commence litigation, evict Chase or attributable terminate the Lease.
(f) If Chase or any subtenant is obligated to pay expense reimbursements, escalation rent, percentage rent or any other item set forth in subparagraph 10(d), and if the total amount received by Seller or by Buyer on account thereof exceeds the portion of such rent or other items (when ascertained) allocable to the periodportion of the billing period falling during the receiving party’s period of ownership, prior the receiving party shall promptly pay the excess to the other. Each of Seller and Buyer shall provide the other with copies of all reports relating to the aforementioned which Seller or Buyer has received from or sent to Chase and/or subtenants, from time-to-time, so that Seller and Buyer may have the full billing period information necessary to ascertain and confirm that amount to which each party is entitled.
(g) Any utility company charges, up to and including the Closing Date (including electricity, water and sewer) accrued and payable by Seller (other than those payable directly by Chase to the utility suppliers) based upon the last xxxx therefor. If any such xxxx has not been received by the Closing Date, and Buyer shall pay all installments of special assessments due and payable on, or attributable to the period from and after the Closing Date.
4.05 Notwithstanding anything to the contrary contained in this Agreement, Seller shall attempt to obtain readings of the water meters affecting the Subject Premises to a date no earlier than thirty (30) days prior to the Closing. At or prior to Closing, Seller shall pay all charges based upon then such meter readings, adjusted to include a reasonable estimate of the additional charges due for the period from the dates of the respective readings until the Closing Date. However, if Seller is unable to obtain readings of any meters prior to Closing, Closing adjustment shall be completed without such readings and upon the obtaining thereof after Closing, Seller shall pay the charges incurred prior to the Closing as reasonably determined by Seller based upon such readings; and at Closing, Seller shall deposit with the Title Company an amount reasonably estimated by Seller to represent the anticipated obligation of Seller under this sentence. This Section 4.05 shall survive the Closing.
4.06 Seller shall pay, at or prior to Closing, all leasing costs in connection with the Leases including, without limitation, brokerage commissions, tenant concessions and attorneys’ fees to the extent such costs are then due and payable, have been incurred and/or are attributable to the period prior to the Closing. For the avoidance of doubt, all brokerage commissions and monetary concessions with respect to the initial term of any Lease (but, in no event, any renewal or option periods) shall be deemed to be attributable to the period prior to the Closing.
4.07 To the extent that any final information necessary to cause the foregoing prorations to be made on the Closing Date is not available at the Closing Date, the amount of any adjustment described in this Section shall be estimated and paid at the Closing Date based upon the best information available to Seller next such xxxx received and Buyer at the time and shall be adjusted no later than the date that is six (6) months following the Closing Date. If there is a dispute between the parties regarding any such adjustment, such dispute may be submitted for determination by either party to a nationally recognized certified public accounting firm reasonably and mutually selected by the parties. The determination of such firm shall be final and conclusive on the parties and judgment may be entered thereon in any court of competent jurisdiction. The rules of the American Arbitration Association applicable to commercial arbitrations shall apply to any such arbitration. The parties shall make the appropriate adjusting payment between them within thirty (30) days after such adjustment is determined. The foregoing obligations in this Section 4.07 shall survive the Closing, any other provision hereof to the contrary notwithstanding.
4.08 Seller acknowledges that Buyer has advised Seller that an owner of beneficial interests in Buyer (the “Public Company Owner”) may be required to make certain filings with the Securities and Exchange Commission (the “SEC Filings”) that relate to the most recent pre-acquisition fiscal year and the current fiscal year through occur after the Closing Date. Seller agrees shall retain the right to use commercially reasonable efforts the refund of all utility deposits. With respect to assist the Public Company Owner in preparing the SEC Filings and to provide access to Seller’s information reasonably required in connection thereto at no additional cost to Seller. In that regard, Seller acknowledges that as a publicly traded company, the Public Company Owner will be required after Closing to comply with certain requirements of the Securities and Exchange Commission; accordinglyany utility adjustment, Seller shall use commercially reasonable efforts endeavor to comply with obtain meter (or other measuring device) readings of the provisions set forth in Exhibit “K” attached hereto and made a part hereof in order to facilitate such compliance by Buyer; provided thatutility consumption as of the Closing Date and, notwithstanding anything contained in this Agreement or in Exhibit “K” wherever possible, Seller shall pay directly to the contrary, it is understood and agreed that Seller will not utility company the amount determined to be exposed to any liability on account thereof and due as of the Closing Date. This Paragraph 9 shall not be required to incur any unreimbursed expense in connection therewithsurvive closing.
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APPORTIONMENTS AND ADJUSTMENTS. 4.01 The following apportionments 8.1 Seller shall be made between responsible for and pay all accrued expenses with respect to the parties at the Closing as of midnight of Project accruing up to 11:59 P.M. on the day preceding prior to the Closing Date (the “Apportionment Time”):
(a"Adjustment Date") Collected rents and additional rents (subject shall be entitled to receive and retain all revenue from the Project accruing up to the provisions Adjustment Date.
8.2 On the Closing Date, the following adjustments and apportionments shall be made in cash as of Section 4.03);the Adjustment Date:
(i) All real estate taxes and any general or special assessments imposed upon the Property, (ii) any fee, tax or charge imposed by any governmental authority for any vaults, vault space or other space within or outside the boundaries of the Property, and (iii) any taxes or assessments levied in whole or in part for public benefits to the Property, including any business improvement district taxes (or similar taxes) affecting the Property), if any, on the basis of the fiscal period for which assessed. If the Closing shall occur before a new tax rate is fixed, the apportionment of taxes at the Closing shall be upon the basis of the old tax rate Rents for the preceding period applied to the latest assessed valuation. Promptly after the new tax rate is fixed, the apportionment of taxes shall be recomputed month in accordance with Section 4.06;
(c) Payments due or payable under any Service Agreements assigned to Buyer pursuant to this Agreement;
(d) Tax and utility company deposits, if any;
(e) Fees for any assignable permits or licenses;
(f) New York State Division of Housing and Community Renewal, Realty Advisory Board or Rent Stabilization Association dues and any registration or filing fees with any other governmental authority engaged in rent or housing regulation; and
(g) All other adjustments as are usual in a real estate closing in accordance with the customs and practice for comparable closings of comparable buildings in New York, New York, except if specifically set forth to the contrary.
4.02 At Closing, Seller shall pay to Buyer (or credit against the Purchase Price) the amount of any security deposits held by Seller (and interest thereon (less any portion to which Seller is entitled as an administrative fee for the period prior to Closing) if the relevant lease provides that interest accrues to the tenant). Buyer shall indemnify and hold Seller free and harmless from any claims by tenants or others with regard to such deposits (and interest, if any) actually delivered or credited to Buyer, which obligation shall survive the Closing Date and delivery of occurs (the Deed"Closing Month"). Seller shall indemnify and hold Buyer free and harmless from any claims If past due rents or other sums are owing by tenants pursuant to their leases with regard to the for any period prior to the ClosingClosing Month (the "Rent Arrearages"), which obligation shall survive then promptly after the Closing Date Purchaser shall bill all tenants for such sums and delivery of the Deed.
4.03 If any tenant is in arrears in the payment of rent on the shall use its reasonable efforts xx collect all Rent Arrearages. Rents collected after Closing Date, Seller and Buyer shall agree upon a statement (“Delinquency Statement”) of all rentals delinquent as of Closing. Rentals are “delinquent” when payment thereof is due on or prior to the Closing but has not been made by the Closing. Any rental payments received subsequent to Closing by Seller or Buyer shall immediately will be applied as follows: all rentals received subsequent to Closing shall be remitted to Buyer or applied first to any rentals and other charges current rents due and payable for periods subsequent then to Closing, and then any rentals shall Rent Arrearages. In determining the amounts required to be remitted paid to Seller or applied to delinquent rentals. Any rental payment received by a party that, pursuant to the previous immediately preceding sentence, is owed Purchaser shall not be permitted to accept any rentals or other amounts from tenants more than five (5) days in advance of the due dates therefor. If, as and when the Purchaser collects payments from a tenant on account of Rent Arrearages, Purchaser shall hold such funds as trustee for Seller and shall pay an amount equal to the other party shall be remitted Rent Arrearages to the other party Seller within ten (10) days after receiptPurchaser or its agent receives each such payment.
(ii) After the Closing for a period of five months, at Seller's request Purchaser shall deliver to Seller a monthly collection report showing the sum, if any, paid by each tenant at the Property with Rent Arrearages and the unpaid balance owed by such tenant pursuant to its lease through the end of such calendar month; such collection report shall be delivered to Seller within ten (10) days after request until the earlier of: (a) five months after Closing, and (b) when Seller has received all Rent Arrearages. Subsequent The Seller shall have the right to review and audit the Purchaser's records with respect to the Rent Arrearages payable to or collected by Purchaser.
(b) Real estate taxes, ad valorem taxes, school taxes, assessments and personal property, intangible and use taxes, if any.
(c) Charges under service contracts affecting the Project on the Closing Date and utility charges and deposits relating to the Project.
(d) Income from users of vending machines and tenant services, if any. Laundry lease bonus money, decoration allowances or other non-recurring income shall not be prorated.
(e) Accrued and unpaid interest under the First Mortgage.
8.3 At the Closing, Purchaser will receive a credit against the Cash Portion of the Purchase Price in an amount equal to all unapplied security deposits payable to tenants under leases in effect on the Closing Date against Purchaser's receipt and indemnification therefor. Upon making such credit, Purchaser will be deemed to have received all such security deposits and shall be fully responsible for the same as if a cash amount equal to such security deposits were actually delivered to Purchaser. Prior to the Closing, Seller reserves the right to apply all security deposits as provided under the respective leases.
8.4 At the Closing, Seller shall have no right receive a cash credit in an amount equal to pursue the sum of all amounts held in escrow by the holder of the First Mortgage for insurance premiums, taxes, replacements, repairs or any rentals on its own account against any remaining tenant under a Lease assigned other matter pursuant to Buyer at Closing. The the terms of this Section 4.03 such First Mortgage.
8.5 At Closing no more than 50% of the vacant units at the Property shall survive Closing and not be merged therein.
4.04 Seller shall pay all installments of special assessments due in rent- ready condition and payable, or attributable to the period, prior to the Closing Date, non-rent ready units will have operating appliances and Buyer shall pay all installments of special assessments due and payable on, or attributable to the period from and after the Closing Date.
4.05 Notwithstanding anything to the contrary contained plumbing in this Agreement, Seller shall attempt to obtain readings working order. If more than 50% of the water meters affecting vacant units at the Subject Premises to a date no earlier than thirty (30) days prior to the Closing. At or prior to Closing, Seller shall pay all charges based upon such meter readings, adjusted to include a reasonable estimate of the additional charges due for the period from the dates of the respective readings until the Closing Date. However, if Seller is unable to obtain readings of any meters prior to Closing, Closing shall be completed without such readings and upon the obtaining thereof after Closing, Seller shall pay the charges incurred prior to the Closing as reasonably determined by Seller based upon such readings; and Property are not in rent-ready condition at Closing, Seller Purchaser shall deposit with receive a credit in the Title Company an amount reasonably estimated by Seller of $1,000 for each unit in excess of 50% of the vacant units at the Property that is not in rent-ready condition; provided that in no event shall the credit to represent the anticipated obligation of Seller Purchaser under this sentenceprovision exceed $13,000. This Section 4.05 As used herein, rent-ready condition shall mean such unit is cleaned, repaired and recently painted with appliance package and plumbing in good working order in accordance with Seller's prior practices. Representatives of the Seller and Purchaser shall inspect the vacant units on the day prior to Closing to determine the number of units not in rent-ready condition.
8.6 The provisions of this ARTICLE 8 shall survive the Closing.
4.06 Seller shall pay, at or prior to Closing, all leasing costs in connection with the Leases including, without limitation, brokerage commissions, tenant concessions and attorneys’ fees to the extent such costs are then due and payable, have been incurred and/or are attributable to the period prior to the Closing. For the avoidance of doubt, all brokerage commissions and monetary concessions with respect to the initial term of any Lease (but, in no event, any renewal or option periods) shall be deemed to be attributable to the period prior to the Closing.
4.07 To the extent that any final information necessary to cause the foregoing prorations to be made on the Closing Date is not available at the Closing Date, the amount of any adjustment described in this Section shall be estimated and paid at the Closing Date based upon the best information available to Seller and Buyer at the time and shall be adjusted no later than the date that is six (6) months following the Closing Date. If there is a dispute between the parties regarding any such adjustment, such dispute may be submitted for determination by either party to a nationally recognized certified public accounting firm reasonably and mutually selected by the parties. The determination of such firm shall be final and conclusive on the parties and judgment may be entered thereon in any court of competent jurisdiction. The rules of the American Arbitration Association applicable to commercial arbitrations shall apply to any such arbitration. The parties shall make the appropriate adjusting payment between them within thirty (30) days after such adjustment is determined. The foregoing obligations in this Section 4.07 shall survive the Closing, any other provision hereof to the contrary notwithstanding.
4.08 Seller acknowledges that Buyer has advised Seller that an owner of beneficial interests in Buyer (the “Public Company Owner”) may be required to make certain filings with the Securities and Exchange Commission (the “SEC Filings”) that relate to the most recent pre-acquisition fiscal year and the current fiscal year through the Closing Date. Seller agrees to use commercially reasonable efforts to assist the Public Company Owner in preparing the SEC Filings and to provide access to Seller’s information reasonably required in connection thereto at no additional cost to Seller. In that regard, Seller acknowledges that as a publicly traded company, the Public Company Owner will be required after Closing to comply with certain requirements of the Securities and Exchange Commission; accordingly, Seller shall use commercially reasonable efforts to comply with the provisions set forth in Exhibit “K” attached hereto and made a part hereof in order to facilitate such compliance by Buyer; provided that, notwithstanding anything contained in this Agreement or in Exhibit “K” to the contrary, it is understood and agreed that Seller will not be exposed to any liability on account thereof and shall not be required to incur any unreimbursed expense in connection therewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Maxus Realty Trust Inc)
