EXECUTED BY PURCHASER;
(II)
A COUNTERPART OF ANY REQUIRED NOTICES
PROVIDED PURSUANT TO SECTION 3.05(A)(V);
(III)
THE NOTE DULY EXECUTED BY PURCHASER;
(IV)
THE LC;
16
(V)
A CERTIFICATE DATED AS OF THE CLOSING DATE
AND EXECUTED BY A DULY AUTHORIZED OFFICER OF PURCHASER CERTIFYING AS TO THE
FULFILLMENT OF THE CONDITIONS SET FORTH IN SECTIONS 3.04(C) AND (D);
(VI)
A LEGAL OPINION FROM ROPES & GRAY LLP, COUNSEL
TO THE PURCHASER, IN THE FORM ATTACHED HERETO AS EXHIBIT K;
(VII)
THE LEASE AGREEMENT DULY EXECUTED BY THE MOLPUS
WOODLANDS GROUP;
(VIII)
THE LETTER AGREEMENT, DULY EXECUTED BY PURCHASER;
AND
(IX)
SUCH OTHER CERTIFICATES, ASSURANCES AND
DOCUMENTS AS SELLER MAY REASONABLY REQUEST TO CARRY OUT THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
3.06
PRORATIONS.
(A)
PRORATION ITEMS.
THE FOLLOWING ITEMS
(COLLECTIVELY, THE "PRORATION ITEMS") WILL BE PRORATED AS OF 11:59 P.M. CENTRAL
TIME ON THE DATE IMMEDIATELY PRECEDING THE CLOSING DATE (THE "PRORATION TIME"):
(I)
REAL ESTATE, PERSONAL PROPERTY,
OCCUPANCY AND OTHER SIMILAR TAXES AND ASSESSMENTS (THE "PROPERTY TAXES"),
SUBJECT TO THE TERMS OF SECTION 3.06(C) BELOW; AND
(II)
PREPAID RENTS, UP-FRONT PAYMENTS, INCOME,
PERMIT OR REGISTRATION FEES AND ROYALTY PAYMENTS FROM THE PURCHASED CONTRACTS,
LEASES AND LICENSES; AND
(III)
UTILITY BILLS AND CHARGES FOR WATER,
TELEPHONE, ELECTRICITY AND OTHER UTILITIES AND FUEL.
(B)
METHOD OF PRORATION.
SELLER WILL BE CHARGED
AND CREDITED FOR THE AMOUNTS OF ANY PRORATION ITEMS RELATING TO THE PERIOD UP TO
AND INCLUDING THE PRORATION TIME, AND PURCHASER WILL BE CHARGED AND CREDITED FOR
ALL OF THE PRORATION ITEMS RELATING TO THE PERIOD AFTER THE PRORATION TIME.
THE
PRELIMINARY ESTIMATED CLOSING PRORATIONS WILL BE SET FORTH ON A PRELIMINARY
CLOSING STATEMENT TO BE PREPARED BY SELLER AND SUBMITTED TO PURCHASER FOR
PURCHASER'S APPROVAL PRIOR TO THE CLOSING DATE.
THE PRELIMINARY CLOSING
STATEMENT, ONCE AGREED UPON BY PURCHASER AND SELLER (THE "CLOSING STATEMENT"),
WILL BE SIGNED BY PURCHASER AND SELLER AND DELIVERED TO THE TITLE COMPANY FOR
PURPOSES OF MAKING THE PRELIMINARY PRORATION ADJUSTMENT AT CLOSING SUBJECT TO
THE POST-CLOSING ADJUSTMENT PROVIDED BELOW.
THE PRELIMINARY PRORATION SHALL BE
PAID AT CLOSING BY PURCHASER TO SELLER (IF THE PRELIMINARY PRORATIONS RESULT IN
A NET CREDIT TO SELLER) OR BY SELLER TO PURCHASER (IF THE PRELIMINARY PRORATIONS
RESULT IN A NET CREDIT TO PURCHASER).
IF THE ACTUAL AMOUNTS OF THE PRORATION
ITEMS ARE NOT KNOWN AT THE PRORATION TIME, THE PRORATIONS WILL BE MADE AT
CLOSING ON THE BASIS OF THE BEST EVIDENCE THEN AVAILABLE; THEREAFTER, WHEN
ACTUAL FIGURES ARE RECEIVED (NOT TO EXCEED 120 DAYS FOLLOWING CLOSING),
RE-PRORATIONS WILL BE MADE ON THE BASIS OF THE ACTUAL FIGURES, AND A FINAL
SETTLEMENT WILL BE MADE BETWEEN SELLER AND PURCHASER WITH ANY NET CREDIT TO
PURCHASER PAID TO PURCHASER IN CASH BY SELLER AND ANY NET CREDIT TO SELLER PAID
TO SELLER IN CASH BY PURCHASER; PROVIDED, THAT NO RE-PRORATION WILL BE MADE WITH
RESPECT TO ANY PRORATION ITEM DESCRIBED IN SECTION 3.06(A)(II) TO THE EXTENT
THAT SUCH RE-PRORATION WOULD CONSTITUTE A CONTINGENT OBLIGATION (AS