Acquisition Costs. In addition to the Purchase Price, Purchaser or Seller, as applicable and as noted herein, shall pay for the following items in connection with this transaction (collectively, the “Acquisition Costs”), and with respect to such Acquisition Costs actually incurred and paid by any Seller, provided the Closing shall occur and Sellers provide reasonable documentation supporting their expenditures, the Sellers shall be reimbursed on the Closing Date, on a collective basis, for such actual Acquisition Costs up to the amount of Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00) (“Reimbursed Seller Acquisition Costs”): (i) the fees and expenses incurred by the Purchaser for the Purchaser’s Inspectors or otherwise in connection with the Inspections shall be paid by Purchaser; (ii) the fees and expenses of the Purchaser’s attorneys, accountants and consultants shall be paid by Purchaser; (iii) the fees and expenses incurred by Purchaser in connection with the preparation and issuance of the Title Policies shall be paid by Purchaser; (iv) the fees and expenses for any updates to the Environmental Reports and Surveys shall be paid by Purchaser; (v) any mortgage tax, title insurance fees and expenses for any loan title insurance policies, recording charges or other amounts payable in connection with any financing obtained by the Purchaser shall be paid by Purchaser; (vi) all of the fees and expenses for the Escrow Agent shall be paid by Purchaser; (vii) all transfer, sales or similar tax and recording charges payable in connection with the conveyance of the Assets shall be paid by Purchaser; (viii) the fees and expenses of the Sellers’ attorneys, accountants and consultants (other than for the auditing agency or accountants engaged by Sellers to perform the audit required by Purchaser due to SEC requirements) shall be paid by Sellers; (ix) the fees and expenses of the auditing agency or accountants engaged by Sellers to perform the audit required by Purchaser due to SEC requirements shall be paid directly by Purchaser and shall not be included within Acquisition Costs to the extent the inclusion of such fees would cause the aggregate amount of all Acquisition Costs, including the Reimbursed Seller Acquisition Costs, to exceed three percent (3%) of the total Purchase Price hereunder; and (x) all other expenses specified as an Acquisition Cost herein shall be paid by the applicable party specified in the applicable provision. The Acquisition Costs shall be used to calculate minimum base rent under the Operating Leases, as provided for therein, and will be subject to adjustment after the Closing outside of Escrow as and when complete and accurate information becomes available, if such information is not readily available at the Closing. Each Seller and Purchaser agree to cooperate and use their best efforts to make such adjustments no later than sixty (60) days after the Closing, and notwithstanding any provisions to the contrary set forth herein, (1) the aggregate amount of all other Acquisition Costs, including the Reimbursed Seller Acquisition Costs, shall not exceed three percent (3%) of the total Purchase Price hereunder, and (2) the Reimbursed Seller Acquisition Costs shall be paid to Sellers in full without regard to the effect or impact the same have on the foregoing three percent (3%) limitation.
Appears in 1 contract
Samples: Asset Purchase Agreement (CNL Income Properties Inc)
Acquisition Costs. In addition to Except as provided in this Section 8.9(f) and in Sections 8.9(e) and (g) hereof, the Purchase PricePartnership shall be liable for all reasonable, Purchaser or Selleractual, as applicable out-of-pocket costs and as noted herein, shall pay for the following items expenses arising in connection with this the identification or evaluation of, the bidding on and the structuring and negotiation of and contracting for the acquisition or attempted acquisition of, the due diligence undertaken in connection with, and any deposits (including Xxxxxxx Money) or other reasonable costs accrued in pursuit of, any Approved Proposed Property (or Proposed Property, to the extent such costs are Approved by the Partners), including any reasonable costs incurred in connection with the enforcement of the related Approved Property Purchase Agreement (but excluding any such costs and expenses incurred after a notice of disapproval (or deemed disapproval) is given by any Partner with respect to such Approved Proposed Property, unless such costs or expenses are incurred pursuant to any agreement executed prior to such disapproval) (the “Pursuit Costs”), and the purchase price and other transaction costs reasonably required to acquire the Approved Proposed Property (collectively“Closing Costs”, and collectively with the Pursuit Costs, the “Acquisition Costs”). The Partners acknowledge that Pursuit Costs and Closing Costs may exceed the initial estimate provided by the General Partner, and may be increased by certain factors identified during the due diligence period or related to the negotiation of the Approved Property Purchase Agreement, leases, estoppels and subordination, non-disturbance and attornment agreements and other documents and agreements with the tenants at the Approved Proposed Property and/or the financing of the Approved Proposed Property and any documents related thereto. The Partners agree that any costs incurred in accordance with General Partner’s (and its Affiliates’) past practices with respect to such Acquisition Costs actually incurred due diligence and paid by any Seller, provided pursuit of acquisitions of properties similar to the Closing shall occur and Sellers provide reasonable documentation supporting their expenditures, the Sellers Target Properties shall be reimbursed deemed to be “reasonable” for purposes of this Section 8.9. The General Partner may call for Additional Capital Contributions to pay for Pursuit Costs from time to time after the Approval of a Proposed Property pursuant to Section 8.9(a), which Additional Capital Contributions shall be due on the date set forth in the Notice requesting such funds, which shall be no less than ten (10) Business Days after the date of such Notice, notwithstanding any longer Contribution Period provided in Section 4.2(a). The General Partner may call for Additional Capital Contributions to pay for estimated Closing DateCosts (and any remaining unpaid Pursuit Costs) and may also call for payment of the Acquisition Fee (as described in Section 8.9(f) below), on a collective basis, for which shall be due no later than the later to occur of (x) one (1) Business Day after the date of such actual Acquisition Costs up notice or (y) two (2) Business Days prior to the amount of Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00) (“Reimbursed Seller Acquisition Costs”): (i) the fees and expenses incurred by the Purchaser for the Purchaser’s Inspectors or otherwise in connection with the Inspections shall be paid by Purchaser; (ii) the fees and expenses estimated closing date of the Purchaser’s attorneysacquisition, accountants and consultants shall be paid by Purchaser; (iii) notwithstanding any longer Contribution Period provided in Section 4.2(a). In the fees and expenses incurred by Purchaser in connection with event that the preparation and issuance acquisition of the Title Policies shall be paid by Purchaser; Approved Proposed Property does not occur, any such Capital Contributions made for Closing Costs (iv) the fees and expenses for any updates to the Environmental Reports and Surveys shall be paid by Purchaser; (v) any mortgage tax, title insurance fees and expenses for any loan title insurance policies, recording charges or other amounts payable in connection with any financing obtained by the Purchaser shall be paid by Purchaser; (vi) all of the fees and expenses for the Escrow Agent shall be paid by Purchaser; (vii) all transfer, sales or similar tax and recording charges payable in connection with the conveyance of the Assets shall be paid by Purchaser; (viii) the fees and expenses of the Sellers’ attorneys, accountants and consultants (other than for the auditing agency or accountants engaged by Sellers to perform the audit required by Purchaser due to SEC requirementsestimated Acquisition Fee) shall be paid by Sellers; returned to the Partners (ixor, with respect to the Acquisition Fee, to the Investor Partner) within ten (10) days from the fees and expenses date of termination (or assignment) of the auditing agency or accountants engaged by Sellers applicable Approved Property Purchase Agreement and shall thereafter be deemed not to perform the audit required by Purchaser due to SEC requirements shall be paid directly by Purchaser have been contributed as Capital Contributions and shall not be included within Acquisition Costs reduce the Approved Property Capital Commitment of any Partner. On or after the closing of the acquisition of an Approved Proposed Property (upon and following acquisition, an “Approved Property”), the General Partner shall deliver to the extent Partners a closing statement acknowledging the inclusion receipt of and setting forth the application of the Partners’ Capital Contributions and any other funds of the Partnership used to acquire such fees would cause the aggregate amount Approved Property or to pay closing costs (including an estimate of all Acquisition Costscosts not finalized at closing, including legal fees and costs, and actual closing adjustments and prorations made in accordance with the Reimbursed Seller Acquisition CostsApproved Property Purchase Agreement) associated therewith, to exceed three percent (3%) of the total Purchase Price hereunder; and and, if applicable, shall (x) all call for Additional Capital Contributions from the Partners to pay for any actual Closing Costs (or other expenses specified Acquisition Costs) in excess of the estimated Closing Costs previously funded, or (y) return to the Partners within ten (10) days after such closing any previously contributed Capital Contributions not used for Closing Costs, which returned amounts shall thereafter be deemed not to have been contributed as an Acquisition Cost herein Capital Contributions and shall be paid by not reduce the applicable party specified in the applicable provisionApproved Property Capital Commitment of any Partner. The All Capital Contributions made with respect to Acquisition Costs shall be used deemed to calculate minimum base rent under have been made as of the Operating Leasesdate of the closing of the acquisition of the Approved Property, as provided for thereinprovided, and will be however, that if an Approved Proposed Property is not acquired, then (subject to adjustment after Section 8.9(e)) any Capital Contributions made with respect to Pursuit Costs shall be deemed made as of the Closing outside date of Escrow as and when complete and accurate information becomes availablethe termination of the Approved Property Purchase Agreement (or any earlier disapproval (or deemed disapproval) by a Partner of an acquisition). Notwithstanding the foregoing, if such information is not readily available at upon the Closing. Each Seller and Purchaser agree to cooperate and use their best efforts to make such adjustments no later than sixty (60) days after the Closing, and notwithstanding any provisions to the contrary set forth herein, (1) the aggregate amount Approval of all other of the Partners, the General Partner may cause the Partnership to use Partnership funds for some or all of the Acquisition Costs, including the Reimbursed Seller Acquisition Costs, shall not exceed three percent (3%) which expenditures of the total Purchase Price hereunder, and (2) the Reimbursed Seller Acquisition Costs shall be paid to Sellers in full without regard treated as if they had been distributed to the effect Partners (or impact in the same have on case of the foregoing three percent (3%Acquisition Fee, the Investor Partner) limitationin accordance with Section 5.1 and then contributed as Additional Capital Contributions or contributions for Acquisition Fees, as the case may be.
Appears in 1 contract
Samples: LXP Industrial Trust
Acquisition Costs. In addition to the Purchase Price, Purchaser or Seller, as applicable and as noted herein, shall pay for the following items in connection with this transaction (collectively, the “Acquisition Costs”), and with respect to such Acquisition Costs actually incurred and paid by any Seller, provided the Closing shall occur and Sellers provide reasonable documentation supporting their expenditures, the Sellers shall be reimbursed on the Closing Date, on a collective basis, for such actual Acquisition Costs up to the amount of Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00) (“Reimbursed Seller Acquisition Costs”): (i) the fees The Company hereby covenants and expenses incurred by the Purchaser for the Purchaser’s Inspectors or otherwise in connection with the Inspections shall be paid by Purchaser; (ii) the fees and expenses of the Purchaser’s attorneysagrees that, accountants and consultants shall be paid by Purchaser; (iii) the fees and expenses incurred by Purchaser in connection with the preparation and issuance of the Title Policies shall be paid by Purchaser; (iv) the fees and expenses for any updates to the Environmental Reports and Surveys shall be paid by Purchaser; (v) any mortgage tax, title insurance fees and expenses for any loan title insurance policies, recording charges or other amounts payable in connection with any financing obtained by the Purchaser shall be paid by Purchaser; (vi) all of the fees and expenses for the Escrow Agent shall be paid by Purchaser; (vii) all transfer, sales or similar tax and recording charges payable in connection with the conveyance of the Assets shall be paid by Purchaser; (viii) the fees and expenses of the Sellers’ attorneys, accountants and consultants (other than for the auditing agency or accountants engaged by Sellers to perform the audit required by Purchaser due to SEC requirements) shall be paid by Sellers; (ix) the fees and expenses of the auditing agency or accountants engaged by Sellers to perform the audit required by Purchaser due to SEC requirements shall be paid directly by Purchaser and shall not be included within Acquisition Costs to the extent the inclusion of such fees would cause if the aggregate amount of all Acquisition Costs, including the Reimbursed Seller Acquisition Costs, acquisition fees and due diligence fees from time to exceed three percent (3%) of the total Purchase Price hereunder; and (x) all other expenses specified as an Acquisition Cost herein shall be paid time received by the applicable party specified in the applicable provision. The Acquisition Costs shall be used to calculate minimum base rent under the Operating Leases, as provided for therein, and will be subject to adjustment Company after the Closing outside of Escrow as and when complete and accurate information becomes available, if such information is not readily available at the Closing. Each Seller and Purchaser agree with respect to cooperate and use their best efforts to make such adjustments no later than sixty (60) days after the Closing, and notwithstanding any provisions to the contrary set forth herein, (1) Project Trophy exceeds the aggregate amount of all other Acquisition Costsany out-of-pocket expenses (including travel, including consultants, etc.) theretofore incurred by the Reimbursed Company after the Closing with respect to the pursuit or acquisition of the Trophy Management Agreement and which the Company has not deducted from the Trophy Breakup Amount in making a payment to Seller Acquisition Costs, shall not exceed three percent in accordance with clause (3%i) of the total Purchase Price hereunderpenultimate sentence of Section 2.8(c) (the "Trophy Acquisition Costs"), the Company shall promptly pay to Seller the amount by which the aggregate amount of such acquisition fees and due diligence fees theretofore received after Closing exceeds the amount of Trophy Acquisition Costs theretofore incurred after the Closing. Seller and each of the Selling Stockholders hereby covenant and agree that, notwithstanding any other term or provision set forth in this Agreement, if from time to time the aggregate amount of any Trophy Acquisition Costs theretofore incurred after the Closing exceeds the aggregate amount of the acquisition fees and due diligence fees theretofore received by the Company after the Closing with respect to Project Trophy, (A) such excess of the Trophy Acquisition Costs over the amount of such fees will be deducted from any Additional Consideration which would otherwise be payable by Buyer to the Seller as set forth in this Section 2.9, and (2B) the Reimbursed Seller Acquisition Costs shall be paid to Sellers in full without regard to the effect or impact extent that the same have on amount of such excess exceeds the foregoing three percent (3%) limitationamount, if any, of the Additional Consideration payable by Buyer, the amount of such excess will be promptly paid by Seller and the Former Stockholders to the Company.
Appears in 1 contract
Acquisition Costs. In addition to The Partnership shall be liable and shall reimburse the Purchase PriceManaging General Partner for payment or reimbursement of all out-of-pocket and documented fees, Purchaser or Seller, as applicable costs and as noted herein, shall pay for the following items expenses arising in connection with this transaction the identification or evaluation of, the bidding on and the structuring and negotiation of and contracting for the acquisition or attempted acquisition of, and the due diligence undertaken in connection with, any Proposed Qualified Property or Approved Qualified Property (collectivelysuch activities, the “Acquisition CostsActivities”); provided that, and with respect to such Acquisition Costs actually incurred and paid by any Sellernotwithstanding the foregoing, provided the Closing shall occur and Sellers provide reasonable documentation supporting their expenditures, the Sellers shall be reimbursed on the Closing Date, on a collective basis, for such actual Acquisition Costs up to the amount of Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00) (“Reimbursed Seller Acquisition Costs”): (i) the fees Partnership shall not be liable or responsible for any such fees, costs or expenses described above unless and until the Other General Partner has provided its preliminary approval of the Proposed Qualified Property pursuant to Section 3.6(b) above, (ii) although the Managing General Partner may initially utilize Partnership funds to make an xxxxxxx money deposit, the Partnership shall not, in any event, bear any non-refundable xxxxxxx money deposit until the Other General Partner has provided its unconditional final approval of the Proposed Qualified Property pursuant to Section 3.6(c) above, and if the Other General Partner does not provide such unconditional final approval, any Partnership funds utilized to make any xxxxxxx money deposit will be refunded or reimbursed to the Partnership by the Managing General Partner, (iii) the Partnership shall not be liable for any portion of any overhead costs of a Partner or Affiliate of a Partner, except that, to the extent that the Partnership is otherwise liable or responsible for any fees, costs and expenses incurred in connection with any Acquisition Activities pursuant to this Section 3.6(f), the Partnership shall be liable for all fees, costs and expenses of Federal’s in-house legal staff utilized in connection with such Acquisition Activities (but only to the extent permitted by, and subject to, Section 3.10(c)(iv) below), and (iv) if for any reason other than pursuant to Section 11.1 hereof, a Partner or any Affiliate of a Partner (instead of the Partnership or an SP Subsidiary) acquires title to any Proposed Qualified Property or Approved Qualified Property, such Partner (or its Affiliate) shall pay all of such fees, costs and expenses (and reimburse the Partnership for any refundable or nonrefundable deposits funded by the Purchaser for the Purchaser’s Inspectors or otherwise Partnership in connection with the Inspections shall acquisition of such property), including, without limitation, any xxxxxxx money deposit, incurred or to be incurred (or paid by Purchaser; (iior deposited) the fees and expenses of the Purchaser’s attorneys, accountants and consultants shall be paid by Purchaser; (iii) the fees and expenses incurred by Purchaser in connection with the preparation and issuance of the Title Policies shall be paid by Purchaser; (iv) the fees and expenses for any updates Acquisition Activities relating to the Environmental Reports and Surveys shall be paid by Purchaser; (v) any mortgage tax, title insurance fees and expenses for any loan title insurance policies, recording charges such Proposed Qualified Property or other amounts payable in connection with any financing obtained by the Purchaser shall be paid by Purchaser; (vi) all of the fees and expenses for the Escrow Agent shall be paid by Purchaser; (vii) all transfer, sales or similar tax and recording charges payable in connection with the conveyance of the Assets shall be paid by Purchaser; (viii) the fees and expenses of the Sellers’ attorneys, accountants and consultants (other than for the auditing agency or accountants engaged by Sellers to perform the audit required by Purchaser due to SEC requirements) shall be paid by Sellers; (ix) the fees and expenses of the auditing agency or accountants engaged by Sellers to perform the audit required by Purchaser due to SEC requirements shall be paid directly by Purchaser and shall not be included within Acquisition Costs to the extent the inclusion of such fees would cause the aggregate amount of all Acquisition Costs, including the Reimbursed Seller Acquisition Costs, to exceed three percent (3%) of the total Purchase Price hereunder; and (x) all other expenses specified as an Acquisition Cost herein shall be paid by the applicable party specified in the applicable provision. The Acquisition Costs shall be used to calculate minimum base rent under the Operating Leases, as provided for therein, and will be subject to adjustment after the Closing outside of Escrow as and when complete and accurate information becomes available, if such information is not readily available at the Closing. Each Seller and Purchaser agree to cooperate and use their best efforts to make such adjustments no later than sixty (60) days after the Closing, and notwithstanding any provisions to the contrary set forth herein, (1) the aggregate amount of all other Acquisition Costs, including the Reimbursed Seller Acquisition Costs, shall not exceed three percent (3%) of the total Purchase Price hereunder, and (2) the Reimbursed Seller Acquisition Costs shall be paid to Sellers in full without regard to the effect or impact the same have on the foregoing three percent (3%) limitationApproved Qualified Property.
Appears in 1 contract
Samples: Contribution Agreement (Federal Realty Investment Trust)
