Apportionments and Payments. A. The following are to be apportioned between Sellers and Buyer as of the Closing Date and the net amount thereof shall either be paid by Buyer to Sellers (with such amount to be paid to Sellers by Buyer's good certified or official bank check, payable to the order of Sellers, or wire transfer of immediately available funds), or credited by Sellers against the Balance of the Purchase Price, as the case may be, at the Closing: (i) real property taxes; (ii) water charges; (iii) sewer taxes and rents; (iv) annual permit, license and inspection fees, if any, on the basis of the fiscal year for which levied, if rights thereunder with respect thereto are transferable to Buyer; (v) fuel, steam and all other utilities; (vi) fixed, additional and escalation rents (including, without limitation, common area maintenance payments) payable under any Leases (as hereinafter defined) between Sellers and space tenants (collectively the "Rent"), if, as and when collected; (vii) interest and permitted administrative charges, if any, on tenants' security deposits; (viii) supplies on hand in the Property in unopened cartons, at Sellers' cost; (ix) wages, vacation pay, pension and welfare benefits and other fringe benefits of all persons employed at the Property; (x) amounts payable under any Contracts (as hereinafter defined) assumed by Buyer; and (xi) all other items customarily apportioned in connection with similar conveyances in the County of Westchester, State of New York. B. If the Closing Date shall occur before the real property taxes, water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof made at the Closing shall be upon the basis of the tax or water rates for the preceding year applied to the latest assessed valuation, but after the real property taxes, water rates and charges and sewer taxes and rents are finally fixed, Sellers and Buyer shall make a recalculation of the apportionment of same, and Sellers or Buyer, as the case may be, shall make an appropriate payment to the other based on such recalculation. C. Xxxxxxx shall arrange for a final reading of all master utility meters (covering steam, gas, electricity and water and the derivative sewer charges based on meters). Sellers and Buyer shall jointly execute a letter to each of such utility companies advising such utility companies of the termination of Sellers' responsibility for such charges for utilities furnished to the Property from and after the Closing Date. If a bxxx is obtained from any of such utility companies before the Closing Date, Sellers shall pay such bxxx on or before the Closing and deliver proof of payment thereof to Buyer. If such bxxx shall not have been obtained before the Closing, Sellers shall pay all such utility, water and sewer charges as evidenced by the last bxxx or bills relating to the period prior to the Closing Date and Buyer shall pay all such utility charges relating to the period after the Closing Date. Any bxxx which shall be rendered which shall cover a period both before and after the Closing Date shall be apportioned between Buyer and Sellers as of the Closing Date. An amount equal to all security deposits, prepayments or credits accrued with Service Providers under the assigned Contracts, or with utilities, water and sewer companies or other parties relating to the Property shall be paid to Sellers by Buyer at the Closing, provided that if such security deposits, prepayments or credits shall not be transferable to Buyer, Buyer shall cooperate with Sellers' efforts to collect and enjoy such amounts. D. The amount of any unpaid taxes, assessments, water rates and charges and sewer taxes and rents which Sellers are obligated to pay and discharge, with interest and penalties thereon to the second business day after the Closing Date, may, at the option of Sellers, be allowed to Buyer out of the Balance of the Purchase Price, provided that official bills therefor, with interest and penalties thereon, are furnished by Sellers at the Closing. If there are any other liens or encumbrances which Sellers are obligated to pay and discharge, Sellers may use any remaining portion of the Balance of the Purchase Price to satisfy the same, provided that Sellers shall deliver to Buyer, at the Closing, instruments in recordable form sufficient to satisfy such liens and encumbrances of record, together with a check for the cost of recording or filing said instruments. Buyer, if request is made at least three (3) business days prior to the Closing, agrees to provide Sellers at the Closing, with separate certified and/or official bank checks, payable as directed by Sellers, to facilitate the satisfaction of any of the aforesaid taxes, assessments, water rates and charges, sewer taxes and rents, liens and encumbrances. E. If Sellers receive Rent payments from tenants at the Property after the Closing Date which are for any period subsequent to the Closing Date, Sellers shall remit to Buyer the amount of such Rent. If any past- due Rent is owing as of the Closing Date, or if any Rent for the period prior to the Closing Date shall have accrued although the same is not then due and payable, Buyer agrees that the first monies received by Buyer from tenants owing such past-due or accrued Rent, in an amount not exceeding one month's Rent shall be received by Buyer, as trustee for Sellers, on account or in payment of, such past-due or accrued Rent, and Buyer shall forthwith remit to Sellers the amount of such past-due or accrued Rent out of such first monies received by Buyer (the "General Rule"). Buyer acknowledges that MCI International currently owes Sellers approximately $141,691.15 for certain items of additional rental under its Lease and for certain sidewalk repair work performed at the Property. If Sellers shall not have been paid such amounts from MCI International prior to Closing, then Buyer shall forthwith remit to Sellers, out of the first monies received by Buyer from MCI International an amount equal to the lesser of (i) $141,691.15 or (ii) the amount of one month's fixed and escalation Rent under the MCI International Lease, it being understood that Sellers shall not receive monies under the General Rule in payment of said $141,691.15 by MCI International to the extent that Sellers have been paid monies on account of such $141,691.15 under this sentence. Buyer agrees that Sellers shall be entitled to retain any monies paid by J.X. Xxxxxxx & Co. ("Hxxxxxx") in connection with the release of such tenant from its obligations under its Lease or otherwise. Nothing herein contained shall preclude Sellers from asserting separate and independent claims against such tenants, but only if each such claim to be asserted exceeds $5,000.00, including, but not limited to, the institution of such actions as Sellers shall deem necessary or advisable for the purpose of collecting such past due rentals, the right (but not the obligation) to do any of which is hereby reserved by Sellers. Buyer shall cooperate with Sellers to collect any Rents (including, without limitation, escalation additional rents) owing to Sellers in accordance herewith. F. Subject to the provisions of subparagraph E above, to the extent that Rent cannot be determined on the Closing Date, or is collected after the Closing Date for any period prior thereto, the amount of such Rent for the period ending on the Closing Date, and all accountings showing the calculations thereof, shall be paid and furnished to Sellers by Buyer if, as and when received after the Closing Date. The portion of the Rent consisting of additional rent and escalation rent shall be apportioned on a calendar year or fiscal year basis (depending upon which is appropriate under each Lease) so that the amount thereof under any of the Leases to which Sellers shall be entitled shall be an amount which bears the same ratio to the total additional and escalation rents due thereunder for the current period as the number of days in said period which shall have elapsed prior to the Closing Date bears to the total number of days in said period. In furtherance thereof, Buyer shall pay to Sellers all escalation additional Rent (i.e., tax, operating expense and other escalation additional Rent) payable under the Leases which relate to the period from January 1, 1997 through the actual Closing Date as and when collected by Buyer. Escalation additional Rent for calendar year 1997 shall be billed by Buyer on or about April 1, 1998, and Buyer shall pay to Sellers any portion thereof to which Sellers are entitled as aforesaid, as and when collected by Buyer. Sellers agree to make available for Buyer's examination, all records, statements and accounts bearing on or relating to Rent and, on the Closing Date, to furnish Buyer with a comprehensive and complete statement of prepaid Rent and uncollected Rent. Subsequent to the Closing and until all apportionments shall have been finally determined, Buyer agrees to make available for Sellers' examination, all records, statements and accounts bearing on or relating to Rent. Any prepaid Rents received by Sellers on or before the Closing Date covering any period of time subsequent thereto shall be credited to Buyer at the Closing. G. At the Closing, Sellers shall deliver to Buyer a good certified or official bank check, payable to the order of Buyer (or grant Buyer a credit against the Balance of the Purchase Price due at Closing), in the aggregate amount of any security deposits held under any Leases between Sellers and space tenants, together with any accrued interest earned thereon and credited to Sellers' security deposit account (adjusted pursuant to Paragraph 8(A) hereof). Buyer shall execute a receipt for the amount of all security deposits so paid over. If any tenant of the Property having a security deposit is in default under the terms of its Lease and either (x) notices of default and termination of such tenant's Lease shall have been duly given or (y) such estoppel certificate executed by the tenant acknowledges that the security deposit held by the landlord under the Lease has been reduced by reason of the tenant's default or fails to state a claim that the landlord is in default of such tenant's Lease by reason of such reduction in the security deposit, Sellers may retain so much of the security deposited by such tenant and the interest accrued thereon as shall be sufficient to cover Sellers' loss by reason of such tenant's default. H. At the Closing, Sellers shall pay their own counsel fees, deed stamps, transfer taxes and such other closing costs as are customarily paid by a seller and Sellers shall execute and deliver any appropriate return or form as may be required in connection therewith. Buyer shall pay its counsel fees, title insurance and survey costs, sales taxes (if any) and such other closing costs as are customarily paid by a buyer and execute and deliver any appropriate return or form as may be required in connection therewith. In addition, any costs relating to Buyer's due diligence, including, without limitation, those relating to appraisers, inspectors, auditors and environmental or engineering consultants, shall be Buyer's sole responsibility. Sellers shall have the option to grant to Buyer a credit against the Balance of the Purchase Price, at the Closing, in an amount equal to the amount of any deed stamps and transfer taxes payable by Sellers. If such adjustment is made by Sellers, Buyer agrees to pay the amount of such deed stamps and transfer taxes. I. Fuel oil, if any, owned by Sellers and on the Property on the date as of which adjustments shall be made, shall be adjusted at the cost price thereof to Sellers, as reflected in Sellers's last bxxx, plus taxes paid thereon. The amount of fuel oil is to be estimated in writing by the fuel company currently supplying fuel to the Property, as of a date which is not more than three (3) business days prior to the Closing Date. J. If, on the Closing Date, the Property or any part thereof shall be affected by any assessments which are payable in installments, then installments payable prior to the Closing Date shall be paid by Sellers (subject to apportionment as provided for herein), and installments payable after the Closing Date shall be paid by Buyer (subject to apportionment as provided herein). Any such installments payable by Buyer shall not be objections to title whether or not the same constitute liens on the Closing Date. K. Xxxxxxx have instituted prior to the Closing Date tax reduction proceedings seeking to reduce the assessed valuation of the Property (a "tax reduction proceeding") for certain periods before and after the Closing Date. Subsequent to the Closing, Sellers shall be permitted to continue such tax reduction proceedings, whether in the name of Sellers or Buyer. Any refund of taxes which results from a tax reduction proceeding commenced by Sellers ("refund") shall be the sole property of Sellers, except that Buyer shall be entitled to that portion of the refund (after deduction from the full refund of all of Sellers' expenses incurred in connection therewith, including without limitation attorneys' fees and expenses) which is refundable to tenants under the Leases, and that portion of such refund which relates to the period subsequent to the Closing. Sellers shall have the right to settle any tax reduction proceeding without Buyer's consent, except to the extent Buyer will be bound by any settlement for any tax year following the Closing and for any tax reduction proceeding relating solely to the tax year in which the Closing occurs, for which Buyer's prior written consent shall be required, which consent Buyer agrees not to unreasonably withhold or delay. Buyer shall execute and deliver any documents that may be reasonably required by Sellers in connection with such tax reduction proceeding and any recovery had thereunder, all without charge or expense to Sellers. L. The parties hereto agree that any errors or omissions in computing apportionments at the Closing shall be corrected promptly after their discovery. In furtherance thereof, the parties agree to recalculate apportionments and make appropriate payments to each other on or about the ninetieth (90) day following the Closing. M. The parties hereto agree that Buyer's attorneys shall be "the real estate reporting person" with respect to this transaction who is responsible for the completion of form 1099S or such other successor form as may be prescribed by the Internal Revenue Service and for fulfilling all of the obligations and requirements of Section 6045(e) of the Internal Revenue Code of 1986, as amended. N. Xxxxxxx shall be responsible for paying $771,450 on account of tenant improvement work in connection with Compass Group USA, Inc. Lease, and $13,617 representing brokerage commission in connection with the failure of MCI to exercise a right of termination in the MCI Lease. In addition, Sellers shall be responsible for all brokerage commissions which were due and payable or which accrued prior to the date of Closing, it being understood by way of example that if a lease is signed prior to the Closing and the brokerage agreement provides for the payment of a $20,000 brokerage commission in two instalments of $10,000, the first instalment payable before the Closing and the second instalment payable after the Closing, the Sellers shall nevertheless be responsible for the payment of both $10,000 instalments, unless the second instalment relates to circumstances (such as the tenant's failure to terminate or exercise of an expansion or renewal right) which by their nature will not occur until after the Closing in which latter case the Sellers shall pay the first $10,000 instalment and the Buyer shall pay the second $10,000 instalment. Notwithstanding the foregoing example, in all cases where a brokerage commission is claimed with respect to a current or future Lease and the right to earn the commission is or may be affected by events that occur or fail to occur subsequent to the Closing, Buyer shall be responsible for all such commissions. O. The provisions of this Paragraph 8 shall survive the Closing Date.
Appears in 2 contracts
Samples: Sale Purchase Agreement (JMB Income Properties LTD X), Sale Purchase Agreement (JMB Income Properties LTD Xi)
Apportionments and Payments. A. (a) The following are to shall be apportioned between Sellers and Buyer at the Closing as of the close of business on the earlier of (i) the day preceding the Closing Date and the net amount thereof shall either be paid by Buyer to Sellers Date: or (with such amount to be paid to Sellers by Buyer's good certified or official bank checkii) August 28, payable to the order of Sellers, or wire transfer of immediately available funds), or credited by Sellers against the Balance of the Purchase Price, as the case may be, at the Closing:1997.
(i) gross real property taxes, on the basis of the fiscal year for which assessed (other than the prorata share borne by the tenants listed on Schedule 4.04 attached hereto and incorporated herein by this reference);
(ii) water rates and charges, unless the direct responsibility of any tenant or subtenant at the Property;
(iii) sewer taxes and rents;
(iv) annual permitlicense, license permit and inspection fees, if any, on the basis of the fiscal year for which levied, if rights thereunder with respect thereto are transferable to Buyer;
(v) fuelfuel and steam, steam gas, electricity charges and all other utilitiesutilities which are supplied to the Property;
(vi) fixed, additional and escalation rents (including, without limitation, common area maintenance payments) payable under any Leases (as hereinafter defined) between Sellers and space tenants (collectively the "Rent"), if, as and when collectedvault taxes;
(vii) interest rents and permitted administrative chargesother charges (including cost reimbursement payments) (collectively, for the purposes of this clause (vii), "rents") payable under the Space Leases as and when collected; provided, however, that (A) certain amounts are subject to final computation as provided in Section 4.05 and (B) if anyany of the rents under any of the Space Leases shall be accrued and unpaid at the Closing Date, the rents collected by PRRP on tenantsor after the Closing Date shall first be applied to all rents due at the time of such collection with respect to the period after the Closing Date with the balance payable to AJV to the extent of delinquent rents apportioned to AJV as of the Closing Date; and, provided further, that PRRP shall not be required to institute any proceeding to collect any rents accrued and unpaid on the Closing Date. If AJV shall not have received all accrued and unpaid rents due it as of the Closing Date within sixty (60) days thereafter, AJV, at its sole cost and expense, shall be entitled to bring such actions or proceedings not affecting possession or enforcing landlords' security depositsliens as AJV shall desire to collect any such accrued and unpaid rents, and PRRP shall cooperate (without any expense to PRRP) with AJV in any such action;
(viii) supplies on hand in all charges and payments under the Property in unopened cartons, at Sellers' costService Contracts;
(ix) wages, vacation pay, pension maintenance and welfare benefits and other fringe benefits of all persons employed operating supplies stored at the PropertyProperty and, where applicable, in unopened containers or in unbroken boxes, at AJV's cost therefor;
(x) amounts payable under any Contracts (as hereinafter defined) assumed by Buyerall costs incurred in securing Space Leases after the Date Hereof; and
(xi) all other proratable items customarily apportioned in connection with similar conveyances in and other income from and expense relating to the County of Westchester, State of New YorkProperty.
B. If (b) AJV shall furnish readings of the water, gas and electric meters located on the Property, if any, other than meters measuring the computation of utilities which are the direct responsibility of any tenant, to a date not more than thirty (30) days prior to the Closing Date shall occur before and the real property taxes, unfixed water rates and charges and charges, sewer taxes and rents are finally fixedand gas and electricity charges, if any, based thereon for the apportionments thereof made at the Closing intervening time shall be upon apportioned on the basis of such last readings. If such readings are not obtainable by the tax or water rates for Closing Date, then, at the preceding year applied to the latest assessed valuationClosing, but after the real property taxes, any water rates and charges and charges, sewer taxes and rents and gas and electricity charges which are finally fixedbased on such readings shall be prorated based upon the per diem charges obtained by using the most recent period for which such readings shall then be available. Upon the taking of subsequent actual readings, Sellers and Buyer shall make a recalculation of the apportionment of same, such charges shall be recalculated and Sellers AJV or BuyerPRRP, as the case may be, promptly shall make an appropriate a payment to the other based on upon such recalculation.
C. Xxxxxxx shall arrange for a final reading of all master utility meters (covering steam, gas, electricity and water and the derivative sewer charges based on meters). Sellers and Buyer shall jointly execute a letter to each of such utility companies advising such utility companies of the termination of Sellers' responsibility for such charges for utilities furnished to the Property from and after the Closing Date. If a bxxx is obtained from any of such utility companies before the Closing Date, Sellers shall pay such bxxx on or before the Closing and deliver proof of payment thereof to Buyer. If such bxxx shall not have been obtained before the Closing, Sellers shall pay all such utility, water and sewer charges as evidenced by the last bxxx or bills relating to the period prior to the Closing Date and Buyer shall pay all such utility charges relating to the period after the Closing Date. Any bxxx which shall be rendered which shall cover a period both before and after the Closing Date shall be apportioned between Buyer and Sellers as of the Closing Date. An amount equal to all security deposits, prepayments or credits accrued with Service Providers under the assigned Contracts, or with utilities, water and sewer companies or other parties relating to the Property shall be paid to Sellers by Buyer at the Closing, provided that if such security deposits, prepayments or credits shall not be transferable to Buyer, Buyer shall cooperate with Sellers' efforts to collect and enjoy such amounts.
D. c) The amount of any unpaid taxes, real property taxes and assessments, water rates and charges and sewer taxes and rents which Sellers are AJV is obligated to pay and discharge, with interest and penalties thereon to the second business day after the Closing Date, discharge may, at the option of SellersAJV, be allowed to Buyer out deducted by PRRP from the cash balance of the Balance of the Purchase PriceConsideration, provided that official bills therefor, with indicating the interest and penalties penalties, if any, thereon, are furnished by Sellers AJV at the Closing. If there are .
(d) if any other liens refund of real property taxes or encumbrances which Sellers are obligated to pay and discharge, Sellers may use any remaining portion of the Balance of the Purchase Price to satisfy the same, provided that Sellers shall deliver to Buyer, at the Closing, instruments in recordable form sufficient to satisfy such liens and encumbrances of record, together with a check for the cost of recording or filing said instruments. Buyer, if request is made at least three (3) business days prior to the Closing, agrees to provide Sellers at the Closing, with separate certified and/or official bank checks, payable as directed by Sellers, to facilitate the satisfaction of any of the aforesaid taxes, assessments, water rates and charges, charges or sewer taxes and rentsrents shall be made after the Closing, liens the same shall be held in trust by AJV or PRRP, as the case may be, and encumbrances.
E. If Sellers receive Rent payments from tenants shall first be applied to the unreimbursed costs incurred in obtaining the same, then paid to any tenant at the Property after the Closing Date which are for any period subsequent who is entitled to the Closing Datesame and the balance, Sellers if any, shall remit be paid to Buyer the amount of such Rent. If any past- due Rent is owing as of the Closing Date, or if any Rent for AJV (with respect to the period prior to the Closing Date shall have accrued although the same is not then due Date) and payable, Buyer agrees that the first monies received by Buyer from tenants owing such past-due or accrued Rent, in an amount not exceeding one month's Rent shall be received by Buyer, as trustee for Sellers, on account or in payment of, such past-due or accrued Rent, and Buyer shall forthwith remit to Sellers the amount of such past-due or accrued Rent out of such first monies received by Buyer PRRP (the "General Rule"). Buyer acknowledges that MCI International currently owes Sellers approximately $141,691.15 for certain items of additional rental under its Lease and for certain sidewalk repair work performed at the Property. If Sellers shall not have been paid such amounts from MCI International prior to Closing, then Buyer shall forthwith remit to Sellers, out of the first monies received by Buyer from MCI International an amount equal with respect to the lesser of (i) $141,691.15 or (ii) the amount of one month's fixed and escalation Rent under the MCI International Lease, it being understood that Sellers shall not receive monies under the General Rule in payment of said $141,691.15 by MCI International to the extent that Sellers have been paid monies on account of such $141,691.15 under this sentence. Buyer agrees that Sellers shall be entitled to retain any monies paid by J.X. Xxxxxxx & Co. ("Hxxxxxx") in connection period commencing with the release of such tenant from its obligations under its Lease or otherwise. Nothing herein contained shall preclude Sellers from asserting separate and independent claims against such tenants, but only if each such claim to be asserted exceeds $5,000.00, including, but not limited to, the institution of such actions as Sellers shall deem necessary or advisable for the purpose of collecting such past due rentals, the right (but not the obligation) to do any of which is hereby reserved by Sellers. Buyer shall cooperate with Sellers to collect any Rents (including, without limitation, escalation additional rents) owing to Sellers in accordance herewith.
F. Subject to the provisions of subparagraph E above, to the extent that Rent cannot be determined on the Closing Date, or is collected after ).
(e) if at the Closing Date for any period prior thereto, the amount of such Rent for the period ending on the Closing Date, and all accountings showing the calculations thereof, shall be paid and furnished to Sellers by Buyer if, as and when received after the Closing Date. The portion of the Rent consisting of additional rent and escalation rent shall be apportioned on a calendar year or fiscal year basis (depending upon which is appropriate under each Lease) so that the amount thereof under any of the Leases to which Sellers shall be entitled shall be an amount which bears the same ratio to the total additional and escalation rents due thereunder for the current period as the number of days in said period which shall have elapsed prior to the Closing Date bears to the total number of days in said period. In furtherance thereof, Buyer shall pay to Sellers all escalation additional Rent (i.e., tax, operating expense and other escalation additional Rent) payable under the Leases which relate to the period from January 1, 1997 through the actual Closing Date as and when collected by Buyer. Escalation additional Rent for calendar year 1997 shall be billed by Buyer on or about April 1, 1998, and Buyer shall pay to Sellers any portion thereof to which Sellers are entitled as aforesaid, as and when collected by Buyer. Sellers agree to make available for Buyer's examination, all records, statements and accounts bearing on or relating to Rent and, on the Closing Date, to furnish Buyer with a comprehensive and complete statement of prepaid Rent and uncollected Rent. Subsequent to the Closing and until all apportionments shall have been finally determined, Buyer agrees to make available for Sellers' examination, all records, statements and accounts bearing on or relating to Rent. Any prepaid Rents received by Sellers on or before the Closing Date covering any period of time subsequent thereto shall be credited to Buyer at the Closing.
G. At the Closing, Sellers shall deliver to Buyer a good certified or official bank check, payable to the order of Buyer (or grant Buyer a credit against the Balance of the Purchase Price due at Closing), in the aggregate amount of any security deposits held under any Leases between Sellers and space tenants, together with any accrued interest earned thereon and credited to Sellers' security deposit account (adjusted pursuant to Paragraph 8(A) hereof). Buyer shall execute a receipt for the amount of all security deposits so paid over. If any tenant of the Property having a security deposit is in default under the terms of its Lease and either (x) notices of default and termination of such tenant's Lease shall have been duly given or (y) such estoppel certificate executed by the tenant acknowledges that the security deposit held by the landlord under the Lease has been reduced by reason of the tenant's default or fails to state a claim that the landlord is in default of such tenant's Lease by reason of such reduction in the security deposit, Sellers may retain so much of the security deposited by such tenant and the interest accrued thereon as shall be sufficient to cover Sellers' loss by reason of such tenant's default.
H. At the Closing, Sellers shall pay their own counsel fees, deed stamps, transfer taxes and such other closing costs as are customarily paid by a seller and Sellers shall execute and deliver any appropriate return or form as may be required in connection therewith. Buyer shall pay its counsel fees, title insurance and survey costs, sales taxes (if any) and such other closing costs as are customarily paid by a buyer and execute and deliver any appropriate return or form as may be required in connection therewith. In addition, any costs relating to Buyer's due diligence, including, without limitation, those relating to appraisers, inspectors, auditors and environmental or engineering consultants, shall be Buyer's sole responsibility. Sellers shall have the option to grant to Buyer a credit against the Balance of the Purchase Price, at the Closing, in an amount equal to the amount of any deed stamps and transfer taxes payable by Sellers. If such adjustment is made by Sellers, Buyer agrees to pay the amount of such deed stamps and transfer taxes.
I. Fuel oil, if any, owned by Sellers and on the Property on the date as of which adjustments shall be made, shall be adjusted at the cost price thereof to Sellers, as reflected in Sellers's last bxxx, plus taxes paid thereon. The amount of fuel oil is to be estimated in writing by the fuel company currently supplying fuel to the Property, as of a date which is not more than three (3) business days prior to the Closing Date.
J. If, on the Closing Date, the Property or any part thereof shall be or shall have been affected by any special or general assessment or assessments of real property taxes which are or may become payable in installmentsinstallments of which the first installment is then a charge or lien and has become payable, then AJV shall pay or cause to be paid the unpaid installments payable of such assessments due prior to the Closing Date and PRRP shall pay or cause to be paid by Sellers (subject to apportionment as provided for herein), and all installments payable after the Closing Date shall be paid by Buyer (subject to apportionment as provided herein). Any such installments payable by Buyer shall not be objections to title whether which are due on or not the same constitute liens on the Closing Date.
K. Xxxxxxx have instituted prior to the Closing Date tax reduction proceedings seeking to reduce the assessed valuation of the Property (a "tax reduction proceeding") for certain periods before and after the Closing Date. Subsequent to the Closing, Sellers The current installments shall be permitted to continue such tax reduction proceedings, whether in the name of Sellers or Buyer. Any refund of taxes which results from a tax reduction proceeding commenced by Sellers ("refund") shall be the sole property of Sellers, except that Buyer shall be entitled to that portion of the refund (after deduction from the full refund of all of Sellers' expenses incurred in connection therewith, including without limitation attorneys' fees and expenses) which is refundable to tenants under the Leases, and that portion of such refund which relates to the period subsequent to the Closing. Sellers shall have the right to settle any tax reduction proceeding without Buyer's consent, except to the extent Buyer will be bound by any settlement for any tax year following the Closing and for any tax reduction proceeding relating solely to the tax year in which the Closing occurs, for which Buyer's prior written consent shall be required, which consent Buyer agrees not to unreasonably withhold or delay. Buyer shall execute and deliver any documents that may be reasonably required by Sellers in connection with such tax reduction proceeding and any recovery had thereunder, all without charge or expense to Sellers.
L. The parties hereto agree that any errors or omissions in computing apportionments apportioned at the Closing shall be corrected promptly after their discovery. In furtherance thereof, the parties agree to recalculate apportionments and make appropriate payments to each other on or about the ninetieth (90) day following the Closing.
M. The parties hereto agree that Buyer's attorneys (f) In the event the apportionments hereinabove provided which are to be made at the Closing result in a credit balance (i) to PRRP, such sum shall be "paid at the Closing, by giving PRRP a credit against the balance of the Consideration in the amount of such credit balance or (ii) to AJV, PRRP shall pay the amount thereof to AJV at the Closing by wire transfer of immediately available funds to the account or accounts designated by AJV for the balance of the Consideration.
(g) if any proceeding for certiorari or other proceeding to determine the assessed value of the Property or the real estate reporting person" property taxes payable with respect to this transaction who is responsible for the completion of form 1099S or such other successor form as may be prescribed by the Internal Revenue Service and for fulfilling all of the obligations and requirements of Section 6045(e) of the Internal Revenue Code of 1986, as amended.
N. Xxxxxxx Property shall be responsible for paying $771,450 on account of tenant improvement work in connection with Compass Group USA, Inc. Lease, and $13,617 representing brokerage commission in connection with the failure of MCI to exercise a right of termination in the MCI Lease. In addition, Sellers shall be responsible for all brokerage commissions which were due and payable or which accrued have been commenced prior to the date Date Hereof and be continuing as of Closing, it being understood by way of example that if a lease is signed prior to the Closing and the brokerage agreement provides for the payment of a $20,000 brokerage commission in two instalments of $10,000, the first instalment payable before the Closing and the second instalment payable after the Closing, the Sellers shall nevertheless be responsible for the payment of both $10,000 instalments, unless the second instalment relates to circumstances (such as the tenant's failure to terminate or exercise of an expansion or renewal right) which by their nature will not occur until after the Closing in which latter case the Sellers shall pay the first $10,000 instalment and the Buyer shall pay the second $10,000 instalment. Notwithstanding the foregoing example, in all cases where a brokerage commission is claimed with respect to a current or future Lease and the right to earn the commission is or may be affected by events that occur or fail to occur subsequent to the Closing, Buyer shall be responsible for all such commissions.
O. The provisions of this Paragraph 8 shall survive the Closing Date, PRRP shall cooperate with AJV in the prosecution of such proceeding or proceedings to completion and in the settlement or compromise of any claim therein. PRRP agrees to cooperate with AJV and to execute any and all documents reasonably required in furtherance of the foregoing.
Appears in 1 contract
Apportionments and Payments. A. (a) The following items shall be apportioned at the Closing as of midnight on the day immediately preceding the Closing Date:
(i) Rents and all other charges (including common area maintenance and other cost reimbursement payments) payable under the Lease.
(ii) All charges and payments for utility services which are not charged directly to Garden Ridge; provided that if there is no meter or if the current bill for any of such uxxxxties has not been issued prior to the Closing Date, the charges therefor shall be adjusted at the Closing on the basis of the charges for the prior period for which bills were issued and shall be further adjusted when the bills for the current period are issued.
(iii) All other operating income and expense from the Property customarily prorated between a purchaser and seller in the areas in which the Property is located. If any of the foregoing cannot be apportioned at the Closing because of the unavailability of the amounts which are to be apportioned between Sellers apportioned, such items shall be estimated using the most recent data available and Buyer adjusted as of soon as practicable after the Closing Date Date.
(b) If any refund of real property taxes or assessments, water rates and charges or sewer taxes and rents shall be made after the net amount thereof Closing, the same shall either be paid held in trust by Buyer to Sellers (with such amount to be paid to Sellers by Buyer's good certified Seller or official bank check, payable to the order of Sellers, or wire transfer of immediately available funds), or credited by Sellers against the Balance of the Purchase PricePurchaser, as the case may be, at and shall first be applied to the Closing:
(i) real property taxes;
(ii) water charges;
(iii) sewer taxes unreimbursed costs incurred in obtaining the same, and rents;
(iv) annual permit, license and inspection feesthe balance, if any, on shall be paid to Seller (for the basis of period prior to the fiscal year Closing Date) and to Purchaser (for which levied, if rights thereunder the period commencing with respect thereto are transferable to Buyer;the Closing Date).
(vc) fuel, steam and all other utilities;[Intentionally omitted]
(vid) fixed, additional and escalation rents (including, without limitation, common area maintenance payments) payable under any Leases (as hereinafter defined) between Sellers and space tenants (collectively the "Rent"), if, as and when collected;
(vii) interest and permitted administrative charges, if any, on tenants' security deposits;
(viii) supplies on hand in the Property in unopened cartons, at Sellers' cost;
(ix) wages, vacation pay, pension and welfare benefits and other fringe benefits The amount of all persons employed at the Property;
(x) amounts payable under any Contracts (as hereinafter defined) assumed by Buyer; and
(xi) all other items customarily apportioned net apportionments hereinabove provided for in connection with similar conveyances in the County of Westchester, State of New York.
B. If the Closing Date shall occur before the real property taxes, water rates and charges and sewer taxes and rents are finally fixed, the apportionments thereof this Section 9.01 which is to be made at the Closing shall be upon credited by the basis Title Company and/or Escrow Agent to the appropriate party.
(e) If any proceeding for certiorari or other proceeding to determine the assessed value of the tax Property or water rates for the preceding year applied to the latest assessed valuation, but after the real property taxes, water rates taxes payable with respect to the Property for any fiscal period of a taxing authority which includes or precedes the Closing Date shall have been commenced prior to the date hereof and charges and sewer taxes and rents are finally fixed, Sellers and Buyer shall make a recalculation be continuing ,as of the apportionment Closing Date, Seller shall be entitled to control the prosecution of samesuch proceeding or proceedings to completion and to settle or compromise any claim therein, with the consent of Purchaser, which consent shall not be unreasonably withheld or delayed. Purchaser agrees to cooperate with Seller and to execute any and all documents reasonably requested by Seller in furtherance of the foregoing.
(i) Within sixty (60) days following the Closing Date, Seller shall deliver to Purchaser a statement detailing the cost reimbursement payments and rents, if any, payable by Garden Ridge under the Lease that are expressed as a fixed percentage or percentages of the receipts of sales of the tenant ("Percentage Rents"), in each case, which were billed to and collected from Garden Ridge under the Lease through the period ending on the Closing Date. Within a reasonable time after Purchaser has made its calculations of the final cost reimbursement payments and Percentage Rents, in respect of the fiscal periods which include the Closing Date, Purchaser shall prepare and submit to Seller a fmal calculation (the "Final Report") of the amounts and other items to be apportioned pursuant to this Agreement as of the Closing Date. Seller shall raise any objections it has to the Final Report within thirty (30) days after the submission thereof by written notice to Purchaser given within said thirty (30) day period and stating in reasonable detail Seller's objections, and Sellers Purchaser shall allow Seller and its authorized representatives reasonable access during business hours to its books and records pertinent to the Properties to permit Seller to review the Final Report and to ascertain its accuracy.
(ii) If Seller shall raise any objections to the Final Report as provided above, the parties shall meet (by telephone or Buyerotherwise) within ten (10) days after submission of Seller's notice thereof and attempt to resolve such objections. If any objections are not resolved within said ten (10) day period, such objections may thereafter be submitted by the parties to an independent real estate or accounting firm mutually acceptable to the parties (or if the parties cannot agree on such a firm within five (5) days thereafter, to the real estate consulting practice of any "big four" accounting firm selected by Seller) for determination, and such firm shall be instructed to render its determination as soon as is reasonably practicable, but, in any event, within fifteen (15) days of submission of the pertinent information. The determination of such firm shall be fmal 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.
(iii) The Final Report shall be deemed amended by agreement of the parties or determination of such firm, and, within ten (10) days after such agreement or determination (or, if Seller raises no objections to the Final Report, the expiration of the thirty (30) day objection period), Purchaser shall bill the tenants therexxxx. Thereafter, Seller promptly shall pay to Purchaser, or Purchaser promptly shall pay to Seller, as the case may be, shall make an appropriate payment the amount determined to be due from such party to the other in accordance with this Section 9.01 based on such recalculationupon the Final Report, as the same may have been amended.
C. Xxxxxxx shall arrange for a final reading of all master utility meters (covering steam, gas, electricity and water and the derivative sewer charges based on meters). Sellers and Buyer shall jointly execute a letter to each of such utility companies advising such utility companies of the termination of Sellers' responsibility for such charges for utilities furnished to the Property from and after the Closing Date. iv) If a bxxx determination is obtained from any of such utility companies before the Closing Date, Sellers shall pay such bxxx on or before the Closing and deliver proof of payment thereof to Buyer. If such bxxx shall not have been obtained before the Closing, Sellers shall pay all such utility, water and sewer charges as evidenced by the last bxxx or bills relating to the period prior to the Closing Date and Buyer shall pay all such utility charges relating to the period after the Closing Date. Any bxxx which shall be rendered which shall cover a period both before and after the Closing Date shall be apportioned between Buyer and Sellers as of the Closing Date. An amount equal to all security deposits, prepayments or credits accrued with Service Providers under the assigned Contracts, or with utilities, water and sewer companies or other parties relating to the Property shall be paid to Sellers by Buyer at the Closing, provided that if such security deposits, prepayments or credits shall not be transferable to Buyer, Buyer shall cooperate with Sellers' efforts to collect and enjoy such amounts.
D. The amount of any unpaid taxes, assessments, water rates and charges and sewer taxes and rents which Sellers are obligated to pay and discharge, with interest and penalties thereon to the second business day after the Closing Date, may, at the option of Sellers, be allowed to Buyer out of the Balance of the Purchase Price, provided that official bills therefor, with interest and penalties thereon, are furnished by Sellers at the Closing. If there are any other liens or encumbrances which Sellers are obligated to pay and discharge, Sellers may use any remaining portion of the Balance of the Purchase Price to satisfy the same, provided that Sellers shall deliver to Buyer, at the Closing, instruments in recordable form sufficient to satisfy such liens and encumbrances of record, together with a check for the cost of recording or filing said instruments. Buyer, if request is made at least three (3) business days prior to the Closing, agrees to provide Sellers at the Closing, with separate certified and/or official bank checks, payable as directed by Sellers, to facilitate the satisfaction of any of the aforesaid taxes, assessments, water rates and charges, sewer taxes and rents, liens and encumbrances.
E. If Sellers receive Rent payments from tenants at the Property after the Closing Date which are for any period subsequent to the Closing Date, Sellers shall remit to Buyer the amount of such Rent. If any past- due Rent is owing as of the Closing Date, or if any Rent for the period prior to the Closing Date shall have accrued although the same is not then due and payable, Buyer agrees that the first monies received by Buyer from tenants owing such past-due or accrued Rent, in an amount not exceeding one month's Rent shall be received by Buyer, as trustee for Sellers, on account or in payment of, such past-due or accrued Rent, and Buyer shall forthwith remit to Sellers the amount of such past-due or accrued Rent out of such first monies received by Buyer (the "General Rule"). Buyer acknowledges that MCI International currently owes Sellers approximately $141,691.15 for certain items of additional rental under its Lease and for certain sidewalk repair work performed at the Property. If Sellers shall not have been paid such amounts from MCI International prior to Closing, then Buyer shall forthwith remit to Sellers, out of the first monies received by Buyer from MCI International an amount equal to the lesser of (i) $141,691.15 or (ii) the amount of one month's fixed and escalation Rent under the MCI International Lease, it being understood that Sellers shall not receive monies under the General Rule in payment of said $141,691.15 by MCI International to the extent that Sellers have been paid monies on account of such $141,691.15 under this sentence. Buyer agrees that Sellers shall be entitled to retain any monies paid by J.X. Xxxxxxx & Co. ("Hxxxxxx") in connection with the release of such tenant from its obligations under its Lease or otherwise. Nothing herein contained shall preclude Sellers from asserting separate and independent claims against such tenants, but only if each such claim to be asserted exceeds $5,000.00, including, but not limited to, the institution of such actions as Sellers shall deem necessary or advisable for the purpose of collecting such past due rentals, the right (but not the obligation) to do any of which is hereby reserved by Sellers. Buyer shall cooperate with Sellers to collect any Rents (including, without limitation, escalation additional rents) owing to Sellers in accordance herewith.
F. Subject to the provisions of subparagraph E above, to the extent that Rent cannot be determined on the Closing Date, or is collected after the Closing Date for any period prior thereto, the amount of such Rent for the period ending on the Closing Date, and all accountings showing the calculations thereof, shall be paid and furnished to Sellers by Buyer if, as and when received after the Closing Date. The portion of the Rent consisting of additional rent and escalation rent shall be apportioned on a calendar year or fiscal year basis (depending upon which is appropriate under each Lease) so that the amount thereof under any of the Leases to which Sellers shall be entitled shall be an amount which bears the same ratio to the total additional and escalation rents due thereunder for the current period as the number of days in said period which shall have elapsed prior to the Closing Date bears to the total number of days in said period. In furtherance thereof, Buyer shall pay to Sellers all escalation additional Rent (i.e., tax, operating expense and other escalation additional Rent) payable under the Leases which relate to the period from January 1, 1997 through the actual Closing Date as and when collected by Buyer. Escalation additional Rent for calendar year 1997 shall be billed by Buyer on or about April 1, 1998, and Buyer shall pay to Sellers any portion thereof to which Sellers are entitled as aforesaid, as and when collected by Buyer. Sellers agree to make available for Buyer's examination, all records, statements and accounts bearing on or relating to Rent and, on the Closing Date, to furnish Buyer with a comprehensive and complete statement of prepaid Rent and uncollected Rent. Subsequent to the Closing and until all apportionments shall have been finally determined, Buyer agrees to make available for Sellers' examination, all records, statements and accounts bearing on or relating to Rent. Any prepaid Rents received by Sellers on or before the Closing Date covering any period of time subsequent thereto shall be credited to Buyer at the Closing.
G. At the Closing, Sellers shall deliver to Buyer a good certified or official bank check, payable to the order of Buyer (or grant Buyer a credit against the Balance of the Purchase Price due at Closing), in the aggregate amount of any security deposits held under any Leases between Sellers and space tenants, together with any accrued interest earned thereon and credited to Sellers' security deposit account (adjusted pursuant to Paragraph 8(A) hereof). Buyer shall execute a receipt for the amount of all security deposits so paid over. If any tenant of the Property having a security deposit is in default under the terms of its Lease and either (x) notices of default and termination of such tenant's Lease shall have been duly given or (y) such estoppel certificate executed by the tenant acknowledges that the security deposit held by the landlord under the Lease has been reduced by reason of the tenant's default or fails to state a claim that the landlord is in default of such tenant's Lease by reason of such reduction in the security deposit, Sellers may retain so much of the security deposited by such tenant and the interest accrued thereon as shall be sufficient to cover Sellers' loss by reason of such tenant's default.
H. At the Closing, Sellers shall pay their own counsel fees, deed stamps, transfer taxes and such other closing costs as are customarily paid by a seller and Sellers shall execute and deliver any appropriate return or form as may be required in connection therewith. Buyer shall pay its counsel fees, title insurance and survey costs, sales taxes (if any) and such other closing costs as are customarily paid by a buyer and execute and deliver any appropriate return or form as may be required in connection therewith. In addition, any costs relating to Buyer's due diligence, including, without limitation, those relating to appraisers, inspectors, auditors and environmental or engineering consultants, shall be Buyer's sole responsibility. Sellers shall have the option to grant to Buyer a credit against the Balance of the Purchase Price, at the Closing, in an amount equal to the amount of any deed stamps and transfer taxes payable by Sellers. If such adjustment is made by Sellers, Buyer agrees to pay the amount of such deed stamps and transfer taxes.
I. Fuel oil, if any, owned by Sellers and on the Property on the date as of which adjustments shall be made, shall be adjusted at the cost price thereof to Sellers, as reflected in Sellers's last bxxx, plus taxes paid thereon. The amount of fuel oil is to be estimated in writing by the fuel company currently supplying fuel to the Property, as of a date which is not more than three (3) business days prior to the Closing Date.
J. If, on the Closing Date, the Property or any part thereof shall be affected by any assessments which are payable in installments, then installments payable prior to the Closing Date shall be paid by Sellers (subject to apportionment as provided for herein), and installments payable after the Closing Date shall be paid by Buyer (subject to apportionment as provided herein). Any such installments payable by Buyer shall not be objections to title whether or not the same constitute liens on the Closing Date.
K. Xxxxxxx have instituted prior to the Closing Date tax reduction proceedings seeking to reduce the assessed valuation of the Property (a "tax reduction proceeding") for certain periods before and after the Closing Date. Subsequent to the Closing, Sellers shall be permitted to continue such tax reduction proceedings, whether in the name of Sellers or Buyer. Any refund of taxes which results from a tax reduction proceeding commenced by Sellers ("refund") shall be the sole property of Sellers, except that Buyer shall be entitled to that portion of the refund (after deduction from the full refund of all of Sellers' expenses incurred in connection therewith, including without limitation attorneys' fees and expenses) which is refundable to tenants under the Leases, and that portion of such refund which relates to the period subsequent to the Closing. Sellers shall have the right to settle any tax reduction proceeding without Buyer's consent, except to the extent Buyer will be bound by any settlement for any tax year following the Closing and for any tax reduction proceeding relating solely to the tax year in which the Closing occurs, for which Buyer's prior written consent shall be required, which consent Buyer agrees not to unreasonably withhold or delay. Buyer shall execute and deliver any documents that may be reasonably required by Sellers in connection with such tax reduction proceeding and any recovery had thereunder, all without charge or expense to Sellers.
L. The parties hereto agree that any errors or omissions in computing apportionments at the Closing shall be corrected promptly after their discovery. In furtherance thereof, the parties agree to recalculate apportionments shall bear the fees and make appropriate payments to each other on or about the ninetieth (90) day following the Closing.
M. The parties hereto agree that Buyer's attorneys shall be "the real estate reporting person" with respect to this transaction who is responsible for the completion of form 1099S or such other successor form as may be prescribed by the Internal Revenue Service and for fulfilling all expenses of the obligations and requirements of Section 6045(e) of the Internal Revenue Code of 1986, as amendedfirm handling such determination equally.
N. Xxxxxxx shall be responsible for paying $771,450 on account of tenant improvement work in connection with Compass Group USA, Inc. Lease, and $13,617 representing brokerage commission in connection with the failure of MCI to exercise a right of termination in the MCI Lease. In addition, Sellers shall be responsible for all brokerage commissions which were due and payable or which accrued prior to the date of Closing, it being understood by way of example that if a lease is signed prior to the Closing and the brokerage agreement provides for the payment of a $20,000 brokerage commission in two instalments of $10,000, the first instalment payable before the Closing and the second instalment payable after the Closing, the Sellers shall nevertheless be responsible for the payment of both $10,000 instalments, unless the second instalment relates to circumstances (such as the tenant's failure to terminate or exercise of an expansion or renewal right) which by their nature will not occur until after the Closing in which latter case the Sellers shall pay the first $10,000 instalment and the Buyer shall pay the second $10,000 instalment. Notwithstanding the foregoing example, in all cases where a brokerage commission is claimed with respect to a current or future Lease and the right to earn the commission is or may be affected by events that occur or fail to occur subsequent to the Closing, Buyer shall be responsible for all such commissions.
O. The provisions of this Paragraph 8 shall survive the Closing Date.
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