Earn-Out Payments. In respect to Leases or New Leases that are fully executed prior to the expiration of the Earn-Out Period, on the twenty-fifth (25th) day of each calendar month after the Phase I Closing Date, provided the subject Lease or New Lease is a Qualified Lease in respect to Phase I on and after the Phase I Closing Date and a Qualified Lease in respect to Phase II on and after the Phase II Closing Date, but prior to the Lease Reservation Date, Purchaser shall pay to Seller the Earn-Out Payment computed in respect to those Leases and New Leases that became, for the first time, Qualified Leases during the preceding month and for which no Earn-Out Payment had been previously paid to Seller. In the event a New Lease is executed during the First or Second Segment, but it does not become a Qualified Lease until after the expiration of the Earn-Out Period, but prior to the Lease Reservation Date, Purchaser, subject to the satisfaction of the Earn-Out Conditions, shall pay to Seller at the time aforesaid, an amount equal to the Earn-Out Payment computed in respect to such subsequent Qualified Lease. Any Earn-Out Payment shall be subject to any unsatisfied right of offset as provided in Paragraphs 5.04, 9.03, 14.06, 14.07 and 16.01 hereof. Notwithstanding the foregoing, the Earn-Out Payment or Closing Payment in respect to a particular Qualified Lease (excluding those that are Qualified Leases in respect to an Unsigned Lease or a Rental Undertaking with the Prospect of a Disapproved Lease as provided in each instance in Paragraph 13.04 hereof) shall not be due and payable by Purchaser to Seller, unless and until, Seller, prior to the Lease Reservation Date, has delivered or caused to be delivered to Purchaser, in respect to the subject Qualified Lease, (i) a fully executed original thereof; (ii) a certificate of occupancy from the applicable governmental authority authorizing the uninterrupted occupancy by the subject Tenant or New Tenant of the subject premises; (iii) the applicable Tenant Estoppel containing no material exceptions or Seller's Estoppel, if in accordance with the provisions of Paragraph 7.15 hereof; (iv) Schedule 10.01(xvii) from Seller in respect to the subject Lease or New Lease, updated to the date the Earn-Out Payment is due, setting forth any unsatisfied Tenant Inducement in respect thereto; (v) evidence, in form and content reasonably satisfactory to Purchaser, that the portion of Tenant Inducements payable to the subject Tenant or New Tenant has been paid by Seller; (vi) an original of the insurance certificates required from the subject New Tenant under the Qualified Lease; (vii) the date down and increased coverage endorsement for the Title Policy required pursuant to the provisions of Paragraph 6.04 hereof, provided Purchaser pays fifty percent (50%) of the Shared Closing Costs in respect thereto; and (viii) copies of the "as-built" plans and specifications for the tenant improvements for the subject Qualified Lease (collectively, in respect to clauses (i) through (viii) above, "Earn-Out Conditions"). The Earn-Out Payment obligations of this Paragraph 13.07 shall survive each Closing Date and the later termination of this Agreement. If the Earn-Out Conditions are not satisfied for the subject Lease or New Lease on or prior to the Lease Reservation Date therefor, then Purchaser shall have no obligation to make any Earn-Out Payment in respect thereto.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Developers Diversified Realty Corp)
Earn-Out Payments. In respect to Leases or New Leases that are fully executed prior to the expiration of the Earn-Out Period, on the twenty-fifth (25th) day of each calendar month after the Phase I Closing Date, provided the subject Lease or New Lease is a Qualified Lease in respect to Phase I on and after the Phase I Closing Date and a Qualified Lease in respect to Phase II on and after the Phase II Closing Date, but prior to the Lease Reservation Date, Purchaser shall pay to Seller the Earn-Out Payment computed in respect to those Leases and New Leases that became, for the first time, Qualified Leases during the preceding month and for which no Earn-Out Payment had been previously paid to Seller. In the event a New Lease is executed during the First or Second Segment, but it does not become a Qualified Lease until after the expiration of the Earn-Out Period, but prior to the Lease Reservation Date, Purchaser, subject to the satisfaction of the Earn-Out Conditions, shall pay to Seller at the time aforesaid, an amount equal to the Earn-Out Payment computed in respect to such subsequent Qualified Lease. Any Earn-Out Payment shall be subject to any unsatisfied right of offset as provided in Paragraphs 5.04, 9.03, 14.06, 14.07 and 16.01 hereof. Notwithstanding the foregoing, the Earn-Out Payment or Closing Payment in respect to a particular Qualified Lease (excluding those that are Qualified Leases in respect to an Unsigned Lease or a Rental Undertaking with the Prospect of a Disapproved Lease as provided in each instance in Paragraph 13.04 hereof) shall not be due and payable by Purchaser to Seller, unless and until, Seller, prior to the Lease Reservation Date, has delivered or caused to be delivered to Purchaser, in respect to the subject Qualified Lease, (i) a fully executed original thereof; (ii) a certificate of occupancy from the applicable governmental authority authorizing the uninterrupted occupancy by the subject Tenant or New Tenant of the subject premises; (iii) the applicable Tenant Estoppel containing no material exceptions or Seller's Estoppel, if in accordance with the provisions of Paragraph 7.15 hereof; (iv) Schedule 10.01(xvii) from Seller in respect to the subject Lease or New Lease, updated to the date the Earn-Out Payment is due, setting forth any unsatisfied Tenant Inducement in respect thereto; (v) evidence, in form and content reasonably satisfactory to Purchaser, that the portion of Tenant Inducements payable to the subject Tenant or New Tenant has been paid by Seller; (vi) an original of the insurance certificates required from the subject New Tenant under the Qualified Lease; (vii) the date down and increased coverage endorsement for the Title Policy required pursuant to the provisions of Paragraph 6.04 hereof, provided Purchaser pays fifty percent (50%) of the Shared Closing Costs in respect thereto; and (viii) copies of the "as-built" plans and specifications for the tenant improvements for the subject Qualified Lease (collectively, in respect to clauses (i) through (viii) above, "Earn-Out Conditions"). The Earn-Out Payment obligations of this Paragraph 13.07 shall survive each Closing Date and the later termination of this Agreement. If the Earn-Out Conditions are not satisfied for the subject Lease or New Lease on or prior to the Lease Reservation Date therefor, then Purchaser shall have no obligation to make any Earn-Out Payment in respect thereto.provided
Appears in 1 contract
Samples: Developers Diversified Realty Corp
Earn-Out Payments. In respect to Leases or New Leases that are fully executed prior to the expiration of the Earn-Out Period, on the twenty-fifth (25th) day of each calendar month after the Phase I Closing Date, provided the subject Lease or New Lease is a Qualified Lease in respect to Phase I on and after the Phase I Closing Date and a Qualified Lease in respect to Phase II on and after the Phase II Closing Date, but prior to the Lease Reservation Date, Purchaser shall pay to Seller the Earn-Out Payment computed in respect to those Leases and New Leases that became, for the first time, Qualified Leases during the preceding month and for which no Earn-Out Payment had been previously paid to Seller. In the event a New Lease is executed during the First or Second Segment, but it does not become a Qualified Lease until after the expiration of the Earn-Out Period, but prior to the Lease Reservation Date, Purchaser, subject to the satisfaction of the Earn-Out Conditions, shall pay to Seller at the time aforesaid, an amount equal to the Earn-Out Payment computed in respect to such subsequent Qualified Lease. Any Earn-Out Payment shall be subject to any unsatisfied right of offset as provided in Paragraphs 5.04, 9.03, 14.06, 14.07 9.03 and 16.01 hereof. Notwithstanding the foregoing, the Earn-Out Payment or Closing Payment in respect to a particular Qualified Lease (excluding those that are Qualified Leases in respect to an Unsigned Lease or a Rental Undertaking with the Prospect of a Disapproved Lease as provided in each instance in Paragraph 13.04 hereof) shall not be due and payable by Purchaser to Seller, unless and until, Seller, prior to the Lease Reservation Date, has delivered or caused to be delivered to Purchaser, in respect to the subject Qualified Lease, (i) a fully executed original thereof; (ii) a certificate of occupancy from the applicable governmental authority authorizing the uninterrupted occupancy by the subject Tenant or New Tenant of the subject premises; (iii) the applicable Tenant Estoppel containing no material exceptions or Seller's Estoppel, if in accordance with the provisions of Paragraph 7.15 hereof; (iv) Schedule 10.01(xvii) from Seller in respect to the subject Lease or New Lease, updated to the date the Earn-Out Payment is due, setting forth any unsatisfied Tenant Inducement in respect thereto; (v) evidence, in form and content reasonably satisfactory to Purchaser, that the portion of Tenant Inducements payable to the subject Tenant or New Tenant has been paid by Seller; (vi) an original of the insurance certificates required from the subject New Tenant under the Qualified Lease; (vii) the date down and increased coverage endorsement for the Title Policy required pursuant to the provisions of Paragraph 6.04 hereof, provided Purchaser pays fifty percent (50%) of the Shared Closing Costs in respect thereto; and (viii) copies of the "as-built" plans and specifications for the tenant improvements for the subject Qualified Lease (collectively, in respect to clauses (i) through (viii) above, "Earn-Out Conditions"). The Earn-Out Payment obligations of this Paragraph 13.07 shall survive each the Closing Date and the later termination of this Agreement. If the Earn-Out Conditions are not satisfied for the subject Lease or New Lease on or prior to the Lease Reservation Date therefor, then Purchaser shall have no obligation to make any Earn-Out Payment in respect thereto.
Appears in 1 contract
Samples: Developers Diversified Realty Corp
Earn-Out Payments. In respect to Leases or New Leases that are fully executed prior to the expiration of the Earn-Out Period, on the twenty-fifth (25th) day of each calendar month after the Phase I Closing Date, provided the subject Lease or New Lease is a Qualified Lease in respect to Phase I on and after the Phase I Closing Date and a Qualified Lease in respect to Phase II on and after the Phase II Closing Date, but prior to the Lease Reservation Date, Purchaser shall pay to Seller the Earn-Out Payment computed in respect to those Leases and New Leases that became, for the first time, Qualified Leases during the preceding month and for which no Earn-Out Payment had been previously paid to Seller. In the event a New Lease is executed during the First or Second Segment, but it does not become a Qualified Lease until after the expiration of the Earn-Out Period, but prior to the Lease Reservation Date, Purchaser, subject to the satisfaction of the Earn-Out Conditions, shall pay to Seller at the time aforesaid, an amount equal to the Earn-Out Payment computed in respect to such subsequent Qualified Lease. Any Earn-Out Payment shall be subject to any unsatisfied right of offset as provided in Paragraphs 5.04, 9.03, 14.06, 14.07 and 16.01 hereof. Notwithstanding the foregoing, the Earn-Out Payment or Closing Payment in respect to a particular Qualified Lease (excluding those that are Qualified Leases in respect to an Unsigned Lease or a Rental Undertaking with the Prospect of a Disapproved Lease as provided in each instance in Paragraph 13.04 hereof) shall not be due and payable by Purchaser to Seller, unless and until, Seller, prior to the Lease Reservation Date, has delivered or caused to be delivered to Purchaser, in respect to the subject Qualified Lease, (i) a fully executed original thereof; (ii) a certificate of occupancy from the applicable governmental authority authorizing the uninterrupted occupancy by the subject Tenant or New Tenant of the subject premises; (iii) the applicable Tenant Estoppel containing no material exceptions or Seller's Estoppel, if in accordance with the provisions of Paragraph 7.15 hereof; (iv) Schedule 10.01(xvii) from Seller in respect to the subject Lease or New Lease, updated to the date the Earn-Out Payment is due, setting forth any unsatisfied Tenant Inducement in respect thereto; (v) evidence, in form and content reasonably satisfactory to Purchaser, that the portion of Tenant Inducements payable to the subject Tenant or New Tenant has been paid by Seller; (vi) an original of the insurance certificates required from the subject New Tenant under the Qualified Lease; (vii) the date down and increased coverage endorsement for the Title Policy required pursuant to the provisions of Paragraph 6.04 hereof, provided Purchaser pays fifty percent (50%) of the Shared Closing Costs in respect thereto; and (viii) copies of the "as-built" plans and specifications for the tenant improvements for the subject Qualified Lease (collectively, in respect to clauses (i) through (viii) above, "Earn-Out Conditions"). The Earn-Out Payment obligations of this Paragraph 13.07 shall survive each the Closing Date and the later termination of this Agreement. If the Earn-Out Conditions are not satisfied for the subject Lease or New Lease on or prior to the Lease Reservation Date therefor, then Purchaser shall have no obligation to make any Earn-Out Payment in respect thereto.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Developers Diversified Realty Corp)
Earn-Out Payments. In respect to Leases or New Leases that are fully executed prior to the expiration of the Earn-Out Period, on the twenty-fifth (25th) day of each calendar month after the Phase I Closing Date, provided the subject Lease or New Lease is a Qualified Lease in respect to Phase I on and after the Phase I Closing Date and a Qualified Lease in respect to Phase II on and after the Phase II Closing Date, but prior to the Lease Reservation Date, Purchaser shall pay to Seller the If an Earn-Out Payment computed in respect to those Leases becomes due and New Leases that becamepayable, (i) for the first timeeach Non-Employee Seller, Qualified Leases during the preceding month and for which no Earn-Out Payment had been previously paid to Seller. In the event a New Lease is executed during the First or Second Segment, but it does not become a Qualified Lease until after the expiration of the Earn-Out Period, but prior to the Lease Reservation Date, Purchaser, subject to the satisfaction of the Earn-Out Conditions, shall pay to Seller at the time aforesaid, an amount equal to the Earn-Out Payment computed in respect to any such subsequent Qualified Lease. Any Earn-Out Payment shall be subject made in cash in the amount specified next to such Non-Employee Seller’s name under the column “Cash Consideration Paid if Earn-Out Achieved” on the Transaction Consideration Disbursement Schedule, and (ii) for each Employee Seller, any unsatisfied right such Earn-Out Payment shall be made (x) partially in cash in the amount specified next to such Employee Seller’s name under the column “Cash Consideration Paid if Earn-Out Achieved” on the Transaction Consideration Disbursement Schedule, and (y) partially in Purchaser Common Stock, in the number of offset as provided in Paragraphs 5.04, 9.03, 14.06, 14.07 and 16.01 hereofshares specified next to such Employee Seller’s name under the column “Stock Consideration Paid if Earn-Out Achieved” on the Transaction Consideration Disbursement Schedule. Notwithstanding Any such cash payments shall be made by Purchaser within five (5) Business Days following the foregoing, final determination of the Earn-Out Payment pursuant to this Section 2.5 by wire transfer of immediately available funds to such account or Closing Payment accounts as the Seller Representative specifies to Purchaser in respect to a particular Qualified Lease writing within two (excluding those that are Qualified Leases in respect to an Unsigned Lease or a Rental Undertaking with 2) Business Days following the Prospect final determination of a Disapproved Lease as provided in each instance in Paragraph 13.04 hereof) shall not be due and payable by Purchaser to Seller, unless and until, Seller, prior to the Lease Reservation Date, has delivered or caused to be delivered to Purchaser, in respect to the subject Qualified Lease, (i) a fully executed original thereof; (ii) a certificate of occupancy from the applicable governmental authority authorizing the uninterrupted occupancy by the subject Tenant or New Tenant of the subject premises; (iii) the applicable Tenant Estoppel containing no material exceptions or Seller's Estoppel, if in accordance with the provisions of Paragraph 7.15 hereof; (iv) Schedule 10.01(xvii) from Seller in respect to the subject Lease or New Lease, updated to the date the Earn-Out Payment is due, setting forth any unsatisfied Tenant Inducement in respect thereto; pursuant to this Section 2.5. Any such stock payments shall be made within five (v5) evidence, in form and content reasonably satisfactory to Purchaser, that Business Days following the portion of Tenant Inducements payable to the subject Tenant or New Tenant has been paid by Seller; (vi) an original final determination of the insurance certificates required from the subject New Tenant under the Qualified Lease; (vii) the date down and increased coverage endorsement for the Title Policy required pursuant to the provisions of Paragraph 6.04 hereof, provided Purchaser pays fifty percent (50%) of the Shared Closing Costs in respect thereto; and (viii) copies of the "as-built" plans and specifications for the tenant improvements for the subject Qualified Lease (collectively, in respect to clauses (i) through (viii) above, "Earn-Out Conditions"). The Earn-Out Payment obligations pursuant to this Section 2.5 by Purchaser causing the transfer of this Paragraph 13.07 shall survive each Closing Date the applicable number of shares of Purchaser Common Stock in book-entry form to be issued in the name of the applicable Employee Seller set forth in the Transaction Consideration Disbursement Schedule. The Parties hereto understand and agree that the later termination of this Agreement. If the Earn-Out Conditions are not satisfied for the subject Lease or New Lease on or prior contingent right to the Lease Reservation Date therefor, then Purchaser shall have no obligation to make receive any Earn-Out Payment in respect theretoshall not be represented by any form of certificate or other instrument, is not transferable, except by operation of Legal Requirements relating to descent and distribution, divorce and community property.
Appears in 1 contract
