Recapture of Public Benefits. It is understood and agreed by the parties to this Agreement that the Agency is entering into this Agreement in order to provide financial assistance to the Lessee for the Project and to accomplish the public purposes of the Act. In consideration therefor, the Lessee hereby agrees as follows: (a) The following capitalized terms shall have the respective meanings specified below: (i) all real estate tax benefits that have accrued to the benefit of the Lessee during such time as the Agency had a leasehold or controlling interest in the Facility Realty, such tax benefits to be computed by subtracting PILOT paid from those payments that the Lessee would have paid during the Term (i.e., Adjusted ELT and, as to the Improvements, Adjusted CRET) had the Agency not had a leasehold or controlling interest in the Facility Realty during such term; and (ii) all miscellaneous benefits derived from the Agency’s participation in the Straight-Lease Transaction contemplated by this Agreement, including any deferral from any applicable mortgage recording taxes, Sales and Use Taxes, and filing and recording fees. (i) The Lessee shall have failed to cause the Project Completion Date to occur by the Completion Deadline. (ii) Except as permitted by written consent of the Agency pursuant to and in accordance with Section 8.20, the Lessee or the Sublessee shall have liquidated all or substantially all of its operating assets or shall have ceased all or substantially all of its operations. (iii) The Lessee or the Sublessee shall have transferred all or substantially all of its employees to a location outside of the City. (iv) The Facility has ceased to be the Approved Facility and/or the Lessee or the Sublessee shall have substantially changed the scope and nature of their operations at the Facility Realty. (v) Except as permitted by written consent of the Agency pursuant to and in accordance with Section 8.20, the Lessee and/or the Sublessee shall have sold, leased or otherwise disposed of all or substantially all of the Facility Realty. (vi) The Lessee or the Sublessee shall have subleased all or part of the Facility Realty in violation of Section 8.9. (vii) The Lessee or the Sublessee shall have relocated all or substantially all of its operations at the Facility Realty to another site; provided, however, and notwithstanding the foregoing, such relocation shall not be a Recapture Event if (A) the Lessee and the Sublessee have relocated their operations at the Facility Realty and at least 90% of their employees employed at the Facility Realty prior to the relocation, to another site within the City, (B) the Lessee and the Sublessee maintain, for the remaining balance of the Recapture Period, an employment level equal to at least 90% of the number of employees employed by the Lessee and the Sublessee at the Facility Realty prior to relocation, and (C) the Lessee and/or the Sublessee shall satisfy such other additional conditions as the Agency may from time to time impose provided such additional conditions are reasonable and uniformly imposed, at the time, to other similar transactions under similar circumstances. There shall arise another Recapture Event upon the failure of the Lessee and/or the Sublessee to satisfy continuously the foregoing requirements for the remaining balance of the Recapture Period. Upon the occurrence of such subsequent Recapture Event, the Agency shall have the right to demand payment of all amounts due under Section 5.4(b) or (c), and the calculation of interest pursuant to Section 5.4(c)(iii) shall assume that the subsequent Recapture Event replaces the original Recapture Event for purposes of that computation. The determination of the pre-relocation, 90%-employment level shall be done in a manner, and in respect of a date or period of time, that the Agency deems appropriate in its sole discretion. For purposes of this Section 5.4, individuals who are employed by each of the Lessee and the Sublessee shall not be counted twice. Notwithstanding the foregoing, a Recapture Event shall not be deemed to have occurred if the Recapture Event: (A) shall have arisen as a direct, immediate result of (x) force majeure as defined in Section 11.1, (y) a taking or condemnation by governmental authority of all or substantially all of the Facility Realty, or (z) the inability at law of the Lessee to rebuild, repair, restore or replace the Facility Realty after the occurrence of a Loss Event to substantially its condition prior to such Loss Event, which inability shall have arisen in good faith through no fault on the part of the Lessee, the Sublessee, or any Affiliate, or (B) is deemed, in the sole discretion of the Agency, to be
Appears in 3 contracts
Samples: Agency Lease Agreement, Agency Lease Agreement, Agency Lease Agreement
Recapture of Public Benefits. It is understood and agreed by the parties to this Agreement that the Agency is entering into this Agreement in order to provide financial assistance to the Lessee for the Project and to accomplish the public purposes of the Act. In consideration therefor, the Lessee hereby agrees as follows:
(a) The For purposes of this Section 5.4, the following capitalized terms shall have the respective meanings specified below:
(i) all real estate tax benefits that have accrued to the benefit of the Lessee during such time as the Agency had a leasehold or controlling interest in the Facility Realty, such tax benefits to be computed by subtracting PILOT paid from those payments that the Lessee would have paid during the Term (i.e., Adjusted ELT and, as to the Improvements, Adjusted CRET) had the Agency not had a leasehold or controlling interest in the Facility Realty during such term; and
(ii) all miscellaneous benefits derived from the Agency’s participation in the Straight-Lease Transaction contemplated by this Agreement, including any deferral from any applicable mortgage recording taxes, Sales and Use Taxes, and filing and recording fees.
(i) The Lessee shall have failed to cause complete, or caused to be completed, the Project Completion Date to occur Improvements by the Completion DeadlineDate.
(ii) Except as permitted by written consent of the Agency pursuant to and in accordance with Section 8.20, the Lessee or the Sublessee shall have liquidated all or substantially all of its operating assets or shall have ceased all or substantially all of its operations.
(iii) The Lessee or the Sublessee shall have transferred all or substantially all of its employees from the Facility Realty to a location outside of the City.
(iv) The Facility has ceased to be the Approved Facility and/or the Lessee or the Sublessee shall have substantially changed the scope and nature of their operations at the Facility Realty.
(v) Except as permitted by written consent of the Agency pursuant to and in accordance with Section 8.20, the Lessee and/or the Sublessee shall have sold, leased or otherwise disposed of all or substantially all of the Facility Realty.
(vi) The Lessee or the Sublessee shall have subleased all or part of the Facility Realty in violation of Section 8.9.
(vii) The Lessee or the Sublessee shall have relocated all or substantially all of its operations at the Facility Realty to another site; provided, however, and notwithstanding the foregoing, such relocation shall not be a Recapture Event if
(A) the Lessee and the Sublessee have relocated their operations at the Facility Realty and at least 90% of their employees employed at the Facility Realty prior to the relocation, to another site within the City, (B) the Lessee and the Sublessee maintain, for the remaining balance of the Recapture Period, an employment level equal to at least 90% of the number of employees employed by the Lessee and the Sublessee at the Facility Realty prior to relocation, and (C) the Lessee and/or the Sublessee shall satisfy such other additional conditions as the Agency may from time to time impose provided such additional conditions are reasonable and uniformly imposed, at the time, to other similar transactions under similar circumstances. There shall arise another Recapture Event upon the failure of the Lessee and/or the Sublessee to satisfy continuously the foregoing requirements for the remaining balance of the Recapture Period. Upon the occurrence of such subsequent Recapture Event, the Agency shall have the right to demand payment of all amounts due under Section 5.4(b) or (c), and the calculation of interest pursuant to Section 5.4(c)(iii) shall assume that the subsequent Recapture Event replaces the original Recapture Event for purposes of that computation. The determination of the pre-relocation, 90%-employment level shall be done in a manner, and in respect of a date or period of time, that the Agency deems appropriate in its sole discretion. For purposes of this Section 5.4, individuals who are employed by each of the Lessee and the Sublessee shall not be counted twice. Notwithstanding the foregoing, a Recapture Event shall not be deemed to have occurred if the Recapture Event:
(A) shall have arisen as a direct, immediate result of (x) force majeure as defined in Section 11.1, (y) a taking or condemnation by governmental authority of all or substantially all of the Facility Realty, or (z) the inability at law of the Lessee to rebuild, repair, restore or replace the Facility Realty after the occurrence of a Loss Event to substantially its condition prior to such Loss Event, which inability shall have arisen in good faith through no fault on the part of the Lessee, the Sublessee, or any Affiliate, or
(B) is deemed, in the sole discretion of the Agency, to be
Appears in 1 contract
Samples: Agency Lease Agreement
Recapture of Public Benefits. It is understood and agreed by the parties to this Agreement that the Agency is entering into this Agreement in order to provide financial assistance to the Lessee for the Project and to accomplish the public purposes of the Act. In consideration therefor, the Lessee hereby agrees as follows:
(a) The following capitalized terms shall have the respective meanings specified below:
(i) If there shall occur a Recapture Event during the Recapture Period, the Lessee shall pay to the Agency as a return of Financial Assistance conferred by the Agency, the following amounts upon demand by the Agency: (y) all real estate tax benefits Benefits; and (z) interest described in Section 5.4(b)(ii).
(ii) The principal of the Benefits to be recaptured shall bear interest at a rate equal to the lesser of (x) the maximum amount of interest permitted by law, and (y) the statutory judgment rate, compounded monthly, commencing from the date that any amount of Benefit principal has accrued to the Lessee, through and including the date such principal is repaid in full; such that (y) Benefit principal comprising Mortgage Recording Taxes, or filing and recording fees, shall be deemed to have accrued to the benefit Lessee on the Commencement Date, and (z) Benefit principal comprising Sales Tax Savings shall be deemed to have accrued to the Lessee on each date upon which such Sales Tax Saving shall have been received by reason of the Lessee during such time as the Agency had a leasehold or controlling interest in the Facility Realty, such tax benefits to be computed use by subtracting PILOT paid from those payments that the Lessee would have paid during of the Term (i.e.Sales Tax Exemption, Adjusted ELT andprovided, as however, that if the Lessee cannot establish to the Improvements, Adjusted CRET) had the Agency not had a leasehold or controlling interest in the Facility Realty during such term; and
(ii) all miscellaneous benefits derived from the Agency’s participation in satisfaction the Straight-Lease Transaction contemplated by this Agreementapplicable date of receipt, including any deferral from any applicable mortgage recording taxes, Sales the Agency shall deem the date of receipt (and Use Taxes, and filing and recording fees.therefore the date on which the Benefit principal accrued) to be the later of
(i1) The the first day of the calendar year for which exemption was reported by the Lessee to the State Department of Taxation and Finance on Form ST-340 or (2) the Commencement Date, or, if the Lessee shall have failed to cause file Form ST-340, the Project Completion Date to occur by Commencement Date. The “statutory judgment rate” shall be the Completion Deadline.
(ii) Except as permitted by written consent statutory judgment rate in effect on the date of the Agency pursuant to and in accordance with Section 8.20, the Lessee or the Sublessee shall have liquidated all or substantially all of its operating assets or shall have ceased all or substantially all of its operationsAgency’s demand.
(iii) The Lessee or Notwithstanding the Sublessee shall have transferred all or substantially all of its employees foregoing, with respect to a location outside State Sales Tax Savings, the computation of the Cityamount of State Sales Tax Savings to be recaptured shall equal the greater of the amount determined pursuant to this Section 5.4 and the amount due to the State pursuant to the Special Provisions.
(iv) The Facility has ceased to be the Approved Facility and/or the Lessee or the Sublessee shall have substantially changed the scope and nature of their operations at the Facility Realty.
(v) Except as permitted by written consent of the Agency pursuant to and in accordance with Section 8.20, the Lessee and/or the Sublessee shall have sold, leased or otherwise disposed of all or substantially all of the Facility Realty.
(vi) The Lessee or the Sublessee shall have subleased all or part of the Facility Realty in violation of Section 8.9.
(vii) The Lessee or the Sublessee shall have relocated all or substantially all of its operations at the Facility Realty to another site; provided, however, and notwithstanding the foregoing, such relocation shall not be a Recapture Event if
(A) the Lessee and the Sublessee have relocated their operations at the Facility Realty and at least 90% of their employees employed at the Facility Realty prior to the relocation, to another site within the City, (B) the Lessee and the Sublessee maintain, for the remaining balance of the Recapture Period, an employment level equal to at least 90% of the number of employees employed by the Lessee and the Sublessee at the Facility Realty prior to relocation, and (C) the Lessee and/or the Sublessee shall satisfy such other additional conditions as the Agency may from time to time impose provided such additional conditions are reasonable and uniformly imposed, at the time, to other similar transactions under similar circumstances. There shall arise another Recapture Event upon the failure of the Lessee and/or the Sublessee to satisfy continuously the foregoing requirements for the remaining balance of the Recapture Period. Upon the occurrence of such subsequent Recapture Event, the Agency shall have the right to demand payment of all amounts due under Section 5.4(b) or (c), and the calculation of interest pursuant to Section 5.4(c)(iii) shall assume that the subsequent Recapture Event replaces the original Recapture Event for purposes of that computation. The determination of the pre-relocation, 90%-employment level shall be done in a manner, and in respect of a date or period of time, that the Agency deems appropriate in its sole discretion. For purposes of this Section 5.4, individuals who are employed demand for payment by each the Agency shall be made in accordance with the notice requirements of this Agreement and the due date for payment shall be not less than seven (7) Business Days from the date of the notice.
(c) The Lessee shall furnish the Agency and NYCEDC with written notification of any Recapture Event within ten (10) days of its occurrence and shall subsequently provide to the Agency in writing any additional information that the Agency may reasonably request in connection with any such Recapture Event.
(d) If, after the Agency Lease Leasehold Estate is terminated in accordance with Article X, a Transferee executes and delivers an instrument in writing (in form suitable for recording and acceptable in form and substance to the Agency) assuming the payments, obligations, covenants and agreements of the Lessee under the Company Lease and this Agreement from the Commencement Date and thereafter, and the Sublessee Transferee is otherwise in compliance with the requirements of Section 8.9(b), and the Agency is made a direct beneficiary of such instrument, then the Agency shall look only to said Transferee in connection with the Agency’s enforcement of this Agreement, and the Lessee shall be released from its payments, obligations, covenants and agreements under the Company Lease, this Agreement and the Guaranty Agreement, except that an assignment of this Agreement does not be counted twicerelease the assigning party from its responsibility for performance of its duties under Section 8.2 of this Agreement for the period during which the assigning party was a party to this Agreement. Notwithstanding The Lessee shall promptly deliver a copy of such written instrument to the foregoing, a Recapture Event shall not be deemed to have occurred if the Recapture Event:Agency after its execution.
(Ae) The provisions of this Section 5.4 shall have arisen as a directsurvive the termination of this Agreement for any reason whatsoever, immediate result notwithstanding any provision of (x) force majeure as defined in Section 11.1, (y) a taking or condemnation by governmental authority of all or substantially all of this Agreement to the Facility Realty, or (z) the inability at law of the Lessee to rebuild, repair, restore or replace the Facility Realty after the occurrence of a Loss Event to substantially its condition prior to such Loss Event, which inability shall have arisen in good faith through no fault on the part of the Lessee, the Sublessee, or any Affiliate, or
(B) is deemed, in the sole discretion of the Agency, to becontrary.
Appears in 1 contract
Samples: Agency Lease Agreement
Recapture of Public Benefits. It is understood and agreed by the parties to this Agreement that the Agency is entering into this Agreement in order to provide financial assistance to the Lessee for the Project and to accomplish the public purposes of the Act. In consideration therefor, the Lessee hereby agrees as follows:
(a) The following capitalized terms shall have the respective meanings specified below:
(i) all real estate tax benefits that have accrued to the benefit of the Lessee during such time as the Agency had a leasehold or controlling interest in the Facility Realty, such tax benefits to be computed by subtracting PILOT paid from those payments that the Lessee would have paid during the Term (i.e., Adjusted ELT and, as to the Improvements, Adjusted CRET) had the Agency not had a leasehold or controlling interest in the Facility Realty during such term; and
(ii) all miscellaneous benefits derived from the Agency’s participation in the Straight-Lease Transaction contemplated by this Agreement, including any deferral from any applicable mortgage recording taxes, Sales and Use Taxes, and filing and recording fees.
(i) The Lessee shall have failed to cause the Project Completion Date to occur by the Completion Deadline.
(ii) Except as permitted by written consent of the Agency pursuant to and in accordance with Section 8.20, the Lessee or the Sublessee shall have liquidated all or substantially all of its operating assets or shall have ceased all or substantially all of its operations.
(iii) The Lessee or the Sublessee shall have transferred all or substantially all of its employees to a location outside of the City.
(iv) The Facility has ceased to be the Approved Facility and/or the Lessee or the Sublessee shall have substantially changed the scope and nature of their operations at the Facility Realty.
(v) Except as permitted by written consent of the Agency pursuant to and in accordance with Section 8.20, the Lessee and/or the Sublessee shall have sold, leased (other than to a Permitted User) or otherwise disposed of all or substantially all of the Facility Realty.
(vi) The Lessee or the Sublessee shall have subleased all or part of the Facility Realty in violation of Section 8.9.
(vii) The Lessee or the Sublessee shall have relocated all or substantially all of its operations at the Facility Realty to another site; provided, however, and notwithstanding the foregoing, such relocation shall not be a Recapture Event if
(A) the Lessee and the Sublessee have relocated their operations at the Facility Realty and at least 90% of their employees employed at the Facility Realty prior to the relocation, to another site within the City, (B) the Lessee and the Sublessee maintain, for the remaining balance of the Recapture Period, an employment level equal to at least 90% of the number of employees employed by the Lessee and the Sublessee at the Facility Realty prior to relocation, and (C) the Lessee and/or the Sublessee shall satisfy such other additional conditions as the Agency may from time to time impose provided such additional conditions are reasonable and uniformly imposed, at the time, to other similar transactions under similar circumstances. There shall arise another Recapture Event upon the failure of the Lessee and/or the Sublessee to satisfy continuously the foregoing requirements for the remaining balance of the Recapture Period. Upon the occurrence of such subsequent Recapture Event, the Agency shall have the right to demand payment of all amounts due under Section 5.4(b) or (c), and the calculation of interest pursuant to Section 5.4(c)(iii) shall assume that the subsequent Recapture Event replaces the original Recapture Event for purposes of that computation. The determination of the pre-relocation, 90%-employment level shall be done in a manner, and in respect of a date or period of time, that the Agency deems appropriate in its sole discretion. For purposes of this Section 5.4, individuals who are employed by each of the Lessee and the Sublessee shall not be counted twice. Notwithstanding the foregoing, a Recapture Event shall not be deemed to have occurred if the Recapture Event:
(A) shall have arisen as a direct, immediate result of (x) force majeure as defined in Section 11.1, (y) a taking or condemnation by governmental authority of all or substantially all of the Facility Realty, or (z) the inability at law of the Lessee to rebuild, repair, restore or replace the Facility Realty after the occurrence of a Loss Event to substantially its condition prior to such Loss Event, which inability shall have arisen in good faith through no fault on the part of the Lessee, the Sublessee, or any Affiliate, or
(B) is deemed, in the sole discretion of the Agency, to be
Appears in 1 contract
Samples: Agency Lease Agreement
