Common use of Completion Events Clause in Contracts

Completion Events. (a) If the matters described on Exhibit R-1 are not completed prior to the Closing Date, Transferors can elect, in its sole discretion, as follows: (i) to provide Buyer with a credit to the Allocated Price for such Property (if a credit amount is specified on Exhibit R-1 then in the amount of the credit); (ii) if Transferors have entered into a fixed price contract for each of such matters, to provide Buyer with a credit to the Allocated Price for such Property 37 41 equal to the difference between such fixed price and the substantiated amounts paid by Transferors to the contractor under such contract; or (iii) if (i) and (ii) do not apply, notify Buyer of Transferors' intent to submit to arbitration pursuant to Section 7.5 below the determination of an appropriate credit based on the portion of such matters to be completed after the closing, in which event the closing shall not be delayed but Transferors shall credit to Buyer at closing the amount that Transferors believe in good faith is appropriate; provided, that the parties shall endeavor for thirty (30) days after closing to reach a mutually acceptable credit prior to submitting such matter to arbitration and that if it is determined pursuant to such arbitration that Buyer should have received a larger credit at closing, then Transferors shall pay to Buyer the amount of such difference, together with interest at nine percent (9%) per annum, from the Closing Date for such Property to the date of payment of such difference. Except as otherwise expressly provided in this Section 6.9, in no event shall a closing be delayed as a result of the application of this Section 6.9. (b) With respect to the Property described on Exhibit R-2 attached hereto, (i) Transferors shall use commercially reasonable efforts to cause the former Winn ▇▇▇▇▇ ▇▇▇rovements to be demolished in order to permit the construction of new improvements, which improvements are currently planned to be leased to Payless and Eckerds, pursuant to leases currently under negotiation. Transferors shall be responsible for the cost of any capital improvements to the shopping center (including such new improvements) which are required under any such leases and for the cost of and any tenant improvements and leasing commissions (with respect to the initial term of such leases) payable by the landlord in connection with such leases (and Transferors shall receive no credit from Buyer for any such costs paid by Transferors); provided, that (A) if any such leases are executed prior to the closing and any such capital improvements or tenant improvements are not completed as of the closing, then Buyer shall receive a credit at the closing against the Allocated Price for such Property equal to the remaining cost to complete such work and the amount of any such leasing commissions which remain unpaid, and (B) with respect to any such space as to which no lease permitted under this Agreement or consented to by Buyer (where such consent is required) has been executed by Transferors, then at the closing Buyer shall receive a credit against the Allocated Price for such Property equal to (x) the net present value of the projected income loss for such space (if any) based on the difference between Buyer's financial models as to rent and term for such space assuming such space was leased to Payless and/or Eckerds, as applicable, and market assumptions (including, without limitation, any lease-up deficit), discounted at 11.5% per annum, and (y) the cost of any capital improvements required to realize the income that would have been produced by leases to Eckerds and/or Payless, as applicable to the extent not completed as of Closing. If the parties cannot agree in good faith on the amount of the credit, then the matter shall be submitted to arbitration pursuant to Section 7.5 below, in which event the closing shall not be delayed but Transferors shall credit to Buyer at closing the amount that Transferors believe in good faith is appropriate; provided, that if it is determined pursuant to such arbitration that Buyer should have received a larger credit at closing, then Transferors shall pay to Buyer the amount of such difference, together with interest at nine percent (9%) per annum, from the Closing Date for such Property to the date of payment of such difference; (ii) Transferors shall install a new roof on the former Eckerds space; provided that if Transferors have not completed such installation on or before the closing then Buyer shall receive a credit for the cost to complete such installation as determined in the manner described in Section 6.9(a); (iii) Transferors are negotiating with McDonalds in connection with the lease of a pad at the 38 42 shopping center and Transferors shall be responsible for the cost of any of landlord's obligations in connection with the consummation of and required under the terms of such lease, including leasing commissions and pad preparation costs; provided that (A) if such lease is executed prior to the closing, to the extent any such obligations have not been paid by Transferors prior to the closing, Buyer shall receive a credit for the cost of such unpaid obligations as determined in the manner described in Section 6.9(a) and (B) if such lease is not executed prior to the closing, Buyer shall receive a credit against the Allocated Price for such Property in the amount of $110,000; and (iv) Transferors shall use commercially reasonable efforts to complete with respect to the area from and including the former Eckerd's space to the end of the shopping center certain cosmetic renovations consistent with the portion of such center that has already been cosmetically renovated, the cost of which has been budgeted at less than $150,000; provided that if Transferors have not completed such renovations on or before the closing, then Buyer shall receive a credit for the cost to complete such renovations. (c) With respect to the Property described on Exhibit R-3 attached hereto, (i) Transferors and Buyer agree that the amount of $305,000 (the "Totem Amount") shall be used by Transferors for certain renovations and deferred maintenance at the Property (the "Totem Work") as directed by Buyer and pursuant to any budget Buyer provides to Transferors with Transferors' reasonable approval and Transferors shall use good faith efforts to utilize such funds to implement the Totem Work in a good and workmanlike manner; provided, that at the closing, Buyer shall receive a credit against the Allocated Price for such Property equal to the Totem Amount less the amount actually expended by Transferors in performing or causing to be performed the Totem Work; and (ii) with respect to the space formerly occupied by Ernst and the adjacent 5000 square foot space planned for development adjacent to such space, Transferors are presently negotiating leases with potential tenants for such space, and Transferors shall be responsible for the cost of any capital improvements to the shopping center which are required under any such leases and for the cost of any tenant improvements and leasing commissions (with respect to the initial term of such leases) payable by the landlord in connection with such leases (and Transferors shall receive no credit from Buyer for any such costs paid by Transferors); provided, that (A) if any such leases are executed prior to the closing and any such capital improvements or tenant improvements are not completed as of the closing, then Buyer shall receive a credit at the closing against the Allocated Price for such Property equal to the remaining cost to complete such work and the amount of any such leasing commissions which remain unpaid, and (B) with respect to any such space as to which no lease permitted under this Agreement or consented to by Buyer (where such consent is required) has been executed by Transferors, then at the closing Buyer shall receive a credit against the Allocated Price for such Property equal to (x) the net present value of the projected income loss for such space (if any) based on the difference between Buyer's financial models as to rent and term for such space assuming such space was leased to Ross, ▇▇r Toys and/or Confetti's, as applicable, and market assumptions (including, without limitation, any lease-up deficit), discounted at 11.5% per annum, and (y) the cost of any capital improvements required to realize the income that would have been produced by leases to Ross, ▇▇r Toys and/or Confetti's, as applicable to the extent not completed as of Closing. If the parties cannot agree in good faith on the amount of the credit, then the matter shall be submitted to arbitration pursuant to Section 7.5 below, in which event the closing shall not be delayed but Transferors shall credit to Buyer at closing the amount that Transferors determine, in its reasonable discretion, to be appropriate; provided, that if it is determined pursuant to such arbitration that Buyer should have received a larger credit at

Completion Events. (a) If 1. On the matters described on Exhibit R-1 are not completed prior to the Closing Completion Date, Transferors can elect, in its sole discretion, as follows: the following actions (ithe "Completion Events") to provide Buyer with a credit to the Allocated Price for such Property (if a credit amount is specified on Exhibit R-1 then will be taken in the amount of the credit); (ii) if Transferors have entered into a fixed price contract for each of such matters, to provide Buyer order set out below in accordance with a credit to the Allocated Price for such Property 37 41 equal to the difference between such fixed price and the substantiated amounts paid by Transferors to the contractor under such contract; or (iii) if (i) and (ii) do not apply, notify Buyer of Transferors' intent to submit to arbitration pursuant to Section 7.5 below the determination of an appropriate credit based on the portion of such matters to be completed after the closing, in which event the closing shall not be delayed but Transferors shall credit to Buyer at closing the amount that Transferors believe in good faith is appropriate; provided, that the parties shall endeavor for thirty (30) days after closing to reach a mutually acceptable credit prior to submitting such matter to arbitration and that if it is determined pursuant to such arbitration that Buyer should have received a larger credit at closing, then Transferors shall pay to Buyer the amount of such difference, together with interest at nine percent (9%) per annum, from the Closing Date for such Property to the date of payment of such difference. Except as otherwise expressly provided in this Section 6.9, in no event shall a closing be delayed as a result of the application of this Section 6.9. (b) With respect to the Property described on Exhibit R-2 attached hereto, (i) Transferors shall use commercially reasonable efforts to cause the former Winn ▇▇▇▇▇ ▇▇▇rovements to be demolished in order to permit the construction of new improvements, which improvements are currently planned to be leased to Payless and Eckerds, pursuant to leases currently under negotiation. Transferors shall be responsible for the cost of any capital improvements to the shopping center (including such new improvements) which are required under any such leases and for the cost of and any tenant improvements and leasing commissions (with respect to the initial term of such leases) payable by the landlord in connection with such leases (and Transferors shall receive no credit from Buyer for any such costs paid by Transferors); provided, that (A) if any such leases are executed prior to the closing and any such capital improvements or tenant improvements are not completed as of the closing, then Buyer shall receive a credit at the closing against the Allocated Price for such Property equal to the remaining cost to complete such work and the amount of any such leasing commissions which remain unpaid, and (B) with respect to any such space as to which no lease permitted under this Agreement or consented to by Buyer (where such consent is required) has been executed by Transferors, then at the closing Buyer shall receive a credit against the Allocated Price for such Property equal to (x) the net present value of the projected income loss for such space (if any) based on the difference between Buyer's financial models as to rent and term for such space assuming such space was leased to Payless and/or Eckerds, as applicable, and market assumptions (including, without limitation, any lease-up deficit), discounted at 11.5% per annum, and (y) the cost of any capital improvements required to realize the income that would have been produced by leases to Eckerds and/or Payless, as applicable to the extent not completed as of Closing. If the parties cannot agree in good faith on the amount of the credit, then the matter shall be submitted to arbitration pursuant to Section 7.5 below, in which event the closing shall not be delayed but Transferors shall credit to Buyer at closing the amount that Transferors believe in good faith is appropriate; provided, that if it is determined pursuant to such arbitration that Buyer should have received a larger credit at closing, then Transferors shall pay to Buyer the amount of such difference, together with interest at nine percent (9%) per annum, from the Closing Date for such Property to the date of payment of such difference; (ii) Transferors shall install a new roof on the former Eckerds space; provided that if Transferors have not completed such installation on or before the closing then Buyer shall receive a credit for the cost to complete such installation as determined in the manner described in Section 6.9(a); (iii) Transferors are negotiating with McDonalds in connection with the lease of a pad at the 38 42 shopping center and Transferors shall be responsible for the cost of any of landlord's obligations in connection with the consummation of and required under the terms of such lease, including leasing commissions the Notary Letter: 1. the Sellers and pad preparation costs; provided that (A) if such lease is executed prior the Purchaser shall confirm to the closingNotary the delivery of the Completion Deliverables; 2. the Purchaser shall transfer, or shall procure the transfer of, the Estimated Initial Purchase Price into the Notary's Bank Account, which must be credited to the extent any Notary's Bank Account no later than 1:00 PM CET on the Completion Date and will be held by the Notary in accordance with the terms and conditions of the Notary Letter; 3. the Notary will confirm that the amounts referred to in paragraph 2.1.2 of this Schedule 8 (Completion Deliverables and Completion Events) have been received into the Notary's Bank Account and the Notary will hold such obligations have not been paid amounts for the account of the Purchaser until they become available for release in accordance with paragraph 2.1.6 of this Schedule 8 (Completion Deliverables and Completion Events); 4. upon completion of the actions set out in paragraph 2.1.1 up to and including 2.1.3 of this Schedule 8 (Completion Deliverables and Completion Events), the Purchaser and the Sellers shall instruct the Notary to execute the Deed of Transfer, which includes an acknowledgment of the transfer of the Shares by Transferors prior the Company; 5. following the execution of the Deed of Transfer, the Notary will register the transfer of the Shares in the shareholders' register of the Company and deliver the register to the closingPurchaser; and 6. on the first Business Day after Completion the Notary will transfer, Buyer shall receive a credit for in accordance with the cost of such unpaid obligations as determined in the manner described in Section 6.9(a) and (B) if such lease is not executed prior Notary Letter to the closing, Buyer shall receive a credit against the Allocated Price for such Property in the each Seller an amount of $110,000; and (iv) Transferors shall use commercially reasonable efforts equal to complete with respect to the area from and including the former Eckerd's space to the end its Relevant Proportion of the shopping center certain cosmetic renovations consistent with the portion of such center that has already been cosmetically renovated, the cost of which has been budgeted at less than $150,000; provided that if Transferors have not completed such renovations on or before the closing, then Buyer shall receive a credit for the cost to complete such renovations. Estimated Initial Purchase Price. Exhibit 2.1 SCHEDULE 9 (c) With respect to the Property described on Exhibit R-3 attached hereto, (i) Transferors and Buyer agree that the amount of $305,000 (the "Totem Amount") shall be used by Transferors for certain renovations and deferred maintenance at the Property (the "Totem Work") as directed by Buyer and pursuant to any budget Buyer provides to Transferors with Transferors' reasonable approval and Transferors shall use good faith efforts to utilize such funds to implement the Totem Work in a good and workmanlike manner; provided, that at the closing, Buyer shall receive a credit against the Allocated Price for such Property equal to the Totem Amount less the amount actually expended by Transferors in performing or causing to be performed the Totem Work; and (ii) with respect to the space formerly occupied by Ernst and the adjacent 5000 square foot space planned for development adjacent to such space, Transferors are presently negotiating leases with potential tenants for such space, and Transferors shall be responsible for the cost of any capital improvements to the shopping center which are required under any such leases and for the cost of any tenant improvements and leasing commissions (with respect to the initial term of such leases) payable by the landlord in connection with such leases (and Transferors shall receive no credit from Buyer for any such costs paid by TransferorsDETERMINATION OF NET INDEBTEDNESS); provided, that (A) if any such leases are executed prior to the closing and any such capital improvements or tenant improvements are not completed as of the closing, then Buyer shall receive a credit at the closing against the Allocated Price for such Property equal to the remaining cost to complete such work and the amount of any such leasing commissions which remain unpaid, and (B) with respect to any such space as to which no lease permitted under this Agreement or consented to by Buyer (where such consent is required) has been executed by Transferors, then at the closing Buyer shall receive a credit against the Allocated Price for such Property equal to (x) the net present value of the projected income loss for such space (if any) based on the difference between Buyer's financial models as to rent and term for such space assuming such space was leased to Ross, ▇▇r Toys and/or Confetti's, as applicable, and market assumptions (including, without limitation, any lease-up deficit), discounted at 11.5% per annum, and (y) the cost of any capital improvements required to realize the income that would have been produced by leases to Ross, ▇▇r Toys and/or Confetti's, as applicable to the extent not completed as of Closing. If the parties cannot agree in good faith on the amount of the credit, then the matter shall be submitted to arbitration pursuant to Section 7.5 below, in which event the closing shall not be delayed but Transferors shall credit to Buyer at closing the amount that Transferors determine, in its reasonable discretion, to be appropriate; provided, that if it is determined pursuant to such arbitration that Buyer should have received a larger credit at