Common use of Acquisition Consideration Clause in Contracts

Acquisition Consideration. (a) The acquisition consideration to be paid by Kite Realty for the LLC Interest (the "Acquisition Consideration") pursuant to an exercise of the Option under Section 2.1 shall be equal to the product of (x) 95% of the fair market value of the Property at the time, as determined in accordance with this Section 3.1 ("FMV"), less the Project Indebtedness, multiplied by (y) the Percentage Interest. (i) FMV for this purpose shall mean the price at which a willing buyer would buy, and a willing seller would sell, the Property in an arms-length transaction assuming the Property is sold in an orderly disposition and each of the buyer and seller are aware of, and take into account, all relevant factors which exist at the time. (ii) In the Exercise Notice, Kite Realty shall designate an appraiser (the "First Appraiser") to determine FMV for the Property. Optionor then shall have 10 days after receiving such notice to designate a second appraiser (the "Second Appraiser") by written notice to Kite Realty. If Optionor fails to timely designate the Second Appraiser, FMV shall be determined by the First Appraiser. The First Appraiser and the Second Appraiser each shall separately determine FMV in accordance with Section 3.1(a) and shall provide a detailed written valuation report to each of Optionor and Kite Realty within 45 days after the last day for designating the Second Appraiser. The designation of the First Appraiser shall be approved by a majority of the members of the Board of Trustees of the REIT, which majority must include a majority of "independent" trustees, as defined in the REIT's Bylaws. If only one appraiser timely submits a proper valuation report, its FMV determination shall be final, binding and conclusive for purposes of this Agreement. If both appraisers timely submit proper valuation reports, and their FMV determinations vary by 10% or less, FMV shall be equal to the average of the two FMV determinations. If both appraisers timely submit proper valuation reports, and their FMV determinations vary by more than 10%, the two appraisers shall promptly appoint a third appraiser (the "Third Appraiser"), which shall independently determine FMV in accordance with Section 3.1(a) and shall provide a detailed written valuation report to each of Optionor and Kite Realty within 45 days after its appointment. FMV shall then be equal to the average of the two closest FMV determinations submitted by the three appraisers. FMV as determined in accordance with Section 3.1(a) shall be final, binding and conclusive for purposes of this Agreement. (iii) In preparing its FMV determination, each appraiser shall be provided with the same Property-specific source documents and information and the same access to personnel. Each appraiser shall determine a single point estimate of FMV, not a range of values. Only qualified real estate appraisers with at least five years' prior experience in the valuation of properties comparable to the Property in the area in which such Property is located, and that do not have any financial interest in any entities affiliated with the Members (excluding any existing or prior agreement or contractual arrangement to provide advisory or appraisal services to any such Members or any affiliates thereof) may be validly appointed to serve as an appraiser hereunder. Subject to Section 3.1(f), each of Optionor and Kite Realty shall pay all fees and costs of the appraiser designated by it and one-half of all fess and costs of the Third Appraiser, if any.

Acquisition Consideration. (a) The acquisition consideration to be paid by Kite Realty for the LLC Interest Property or any Portion thereof (the "Acquisition Consideration") pursuant to an exercise of the Option under Section 2.1 shall be equal to the product of (x) 95% of the fair market value of the Property or the Portion, respectively, at the time, as determined in accordance with this Section 3.1 ("FMV"), less the Project Indebtedness, multiplied by (y) the Percentage Interest. (i) FMV for this purpose shall mean the price at which a willing buyer would buy, and a willing seller would sell, the Property or a Portion (as applicable) in an arms-length transaction assuming the Property or the Portion (as applicable) is sold in an orderly disposition and each of the buyer and seller are aware of, and take into account, all relevant factors which exist at the time. (ii) In the Exercise Notice, Kite Realty shall designate an appraiser (the "First Appraiser") to determine FMV for the PropertyProperty or a Portion (as applicable). Optionor then shall have 10 days after receiving such notice to designate a second appraiser (the "Second Appraiser") by written notice to Kite Realty. If Optionor fails to timely designate the Second Appraiser, FMV shall be determined by the First Appraiser. The First Appraiser and the Second Appraiser each shall separately determine FMV in accordance with Section 3.1(a) and shall provide a detailed written valuation report to each of Optionor and Kite Realty within 45 days after the last day for designating the Second Appraiser. The designation of the First Appraiser shall be approved by a majority of the members of the Board of Trustees of the REIT, which majority must include a majority of "independent" trustees, as defined in the REIT's Bylaws. If only one appraiser timely submits a proper valuation report, its FMV determination shall be final, binding and conclusive for purposes of this Agreement. If both appraisers timely submit proper valuation reports, and their FMV determinations vary by 10% or less, FMV shall be equal to the average of the two FMV determinations. If both appraisers timely submit proper valuation reports, and their FMV determinations vary by more than 10%, the two appraisers shall promptly appoint a third appraiser (the "Third Appraiser"), which shall independently determine FMV in accordance with Section 3.1(a) and shall provide a detailed written valuation report to each of Optionor and Kite Realty within 45 days after its appointment. FMV shall then be equal to the average of the two closest FMV determinations submitted by the three appraisers. FMV as determined in accordance with Section 3.1(a) shall be final, binding and conclusive for purposes of this Agreement. (iii) In preparing its FMV determination, each appraiser shall be provided with the same Property-specific source documents and information and the same access to personnel. Each appraiser shall determine a single point estimate of FMV, not a range of values. Only qualified real estate appraisers with at least five years' prior experience in the valuation of properties comparable to the Property in the area in which such Property is located, and that do not have any financial interest in any entities affiliated with the Members (excluding any existing or prior agreement or contractual arrangement to provide advisory or appraisal services to any such Members or any affiliates thereof) ), may be validly appointed to serve as an appraiser hereunder. Subject to Section 3.1(f), each of Optionor and Kite Realty shall pay all fees and costs of the appraiser designated by it and one-half of all fess and costs of the Third Appraiser, if any. (b) On the Closing Date, the Acquisition Consideration shall be payable by Kite Realty, subject to Section 3.1(b)(i), first through the assumption of all outstanding Property Indebtedness (including, without limitation, the payment of any applicable prepayment, assumption or other fees, costs and penalties) or, if Kite Realty so elects, the repayment thereof, and second, with respect to any remaining unsatisfied portion of the Acquisition Consideration, in the form of units of limited partnership interest in Kite Realty ("Units") or cash, in the sole and absolute discretion of Kite Realty. For purposes of this Section 3.1(b), subject to Section 3.1(b)(i), the value of outstanding Property Indebtedness assumed by Kite Realty shall be the principal amount thereof and any accrued and unpaid interest, plus any related prepayment, assumption and other fees, costs and penalties incurred by Kite Realty in connection with Kite Realty's assumption or repayment of such Property Indebtedness. The value of Units shall be their "Market Value" as defined in Section 3.1(b)(ii), and the number of Units shall be rounded to the nearest whole number of Units to avoid the issuance of fractional Units.

Acquisition Consideration. (a) The acquisition consideration to be paid by Kite Realty USI for the LLC Interest any Option Property (the "“Acquisition Consideration"”) pursuant to an exercise of the Option under Section 2.1 shall be equal to the product lower of (xi) 95% of the product obtained by multiplying (A) Annualized NOI for such Option Property by (B) 12.5 and (ii) the fair market value of the Option Property at the time(“FMV”), as determined pursuant to this Section 3.1. “Annualized NOI” shall mean the net operating income for the Option Property for the three months immediately prior to the month in accordance which the Exercise Notice is delivered multiplied by 4. Net operating income shall mean net income for the Option Property plus interest expense, loan procurement amortization expense (if applicable), depreciation, management fees to related parties/general and administrative (if applicable)(and, in each case, otherwise in a manner consistent with the manner in which net operating income was determined for purposes of the disclosure in the prospectus for USI’s initial public offering). “FMV” for purposes of this Section 3.1 ("FMV"), less the Project Indebtedness, multiplied by (y) the Percentage Interest. (i) FMV for this purpose shall mean the price at which a willing buyer would buy, and a willing seller would sell, the such Option Property in an arms-length transaction assuming the such Option Property is sold in an orderly disposition on the terms (other than purchase price) set out in this Agreement and each of the buyer and seller are aware of, and take into account, all relevant factors which exist at the time. (ii) . In the Exercise Notice, Kite Realty USI shall designate an appraiser (the "“First Appraiser"”) to determine FMV for the such Option Property. Optionor then shall have 10 days after receiving such notice to designate a second appraiser (the "“Second Appraiser"”) by written notice to Kite RealtyUSI. If Optionor fails to timely designate the Second Appraiser, FMV shall be determined by the First Appraiser. The First Appraiser and the Second Appraiser each shall separately determine FMV in accordance with this Section 3.1(a) and shall provide a detailed written valuation report to each of Optionor and Kite Realty USI within 45 20 days after the last day for designating the Second Appraiser. The designation of the First Appraiser shall be approved by a majority of the members of the Board of Trustees of the REIT, which majority must include a majority of "“independent" ” trustees, as defined in the REIT's ’s Bylaws. If only one appraiser timely submits a proper valuation report, its FMV determination shall be final, binding and conclusive for purposes of this Agreement. If both appraisers timely submit proper valuation reports, and their FMV determinations vary by 10% or less, FMV shall be equal to the average of the two FMV determinations. If both appraisers timely submit proper valuation reports, and their FMV determinations vary by more than 10%, the two appraisers shall promptly appoint a third appraiser (the "“Third Appraiser"”), which shall independently determine FMV in accordance with Section 3.1(a) and shall provide a detailed written valuation report to each of Optionor and Kite Realty USI within 45 20 days after its appointment. FMV shall then be equal to the average of the two closest FMV determinations submitted by the three appraisers. FMV as determined in accordance with Section 3.1(a) shall be final, binding and conclusive for purposes of this Agreement. (iii) . If a Third Appraiser is required to be appointed pursuant hereto, the Closing Date shall be a date within 15 days after receipt of the written valuation report of such Third Appraiser. In preparing its FMV determination, each appraiser shall be provided with the same Option Property-specific source documents and information and the same access to personnel. Each appraiser shall determine a single point estimate of FMV, not a range of values. Only qualified real estate appraisers with at least five years' ’ prior experience in the valuation of properties comparable to the Property in the area in which such Property is locatedOption Property, and that do not have any financial interest in any entities affiliated with the Members any party hereto (excluding any existing or prior agreement or contractual arrangement to provide advisory or appraisal services to any such Members parties or any affiliates thereof) ), may be validly appointed to serve as an appraiser hereunder. Subject to Section 3.1(f), each Each of Optionor and Kite Realty USI shall pay all fees and costs of the appraiser designated by it and one-half of all fess fees and costs of the Third Appraiser, if any.

Acquisition Consideration. (a) The acquisition consideration to be paid by Kite Realty for the LLC Partnership Interest (the "Acquisition Consideration") pursuant to an exercise of the Option under Section 2.1 shall be equal to the product of (x) 95% of the fair market value of the Property at the time, as determined in accordance with this Section 3.1 ("FMV"), less the Project Indebtedness, multiplied by (y) the Percentage Interest. (i) FMV for this purpose shall mean the price at which a willing buyer would buy, and a willing seller would sell, the Property in an arms-length transaction assuming the Property is sold in an orderly disposition and each of the buyer and seller are aware of, and take into account, all relevant factors which exist at the time. (ii) In the Exercise Notice, Kite Realty shall designate an appraiser (the "First Appraiser") to determine FMV for the Property. Optionor then shall have 10 days after receiving such notice to designate a second appraiser (the "Second Appraiser") by written notice to Kite Realty. If Optionor fails to timely designate the Second Appraiser, FMV shall be determined by the First Appraiser. The First Appraiser and the Second Appraiser each shall separately determine FMV in accordance with Section 3.1(a) and shall provide a detailed written valuation report to each of Optionor and Kite Realty within 45 days after the last day for designating the Second Appraiser. The designation of the First Appraiser shall be approved by a majority of the members of the Board of Trustees of the REIT, which majority must include a majority of "independent" trustees, as defined in the REIT's Bylaws. If only one appraiser timely submits a proper valuation report, its FMV determination shall be final, binding and conclusive for purposes of this Agreement. If both appraisers timely submit proper valuation reports, and their FMV determinations vary by 10% or less, FMV shall be equal to the average of the two FMV determinations. If both appraisers timely submit proper valuation reports, and their FMV determinations vary by more than 10%, the two appraisers shall promptly appoint a third appraiser (the "Third Appraiser"), which shall independently determine FMV in accordance with Section 3.1(a) and shall provide a detailed written valuation report to each of Optionor and Kite Realty within 45 days after its appointment. FMV shall then be equal to the average of the two closest FMV determinations submitted by the three appraisers. FMV as determined in accordance with Section 3.1(a) shall be final, binding and conclusive for purposes of this Agreement. (iii) In preparing its FMV determination, each appraiser shall be provided with the same Property-specific source documents and information and the same access to personnel. Each appraiser shall determine a single point estimate of FMV, not a range of values. Only qualified real estate appraisers with at least five years' prior experience in the valuation of properties comparable to the Property in the area in which such Property is located, and that do not have any financial interest in any entities affiliated with the Members (excluding any existing or prior agreement or contractual arrangement to provide advisory or appraisal services to any such Members or any affiliates thereof) may be validly appointed to serve as an appraiser hereunder. Subject to Section 3.1(f), each of Optionor and Kite Realty shall pay all fees and costs of the appraiser designated by it and one-half of all fess and costs of the Third Appraiser, if any.