Common use of Earnouts Clause in Contracts

Earnouts. Pursuant to the Securities Purchase Agreement, SCRE is obligated to pay any and all of the earnout payments due under the Earn-Out Purchase Agreements, as described on Schedule 4 attached hereto (the “Gross Earn-Out Payments”) directly to the sellers set forth therein within the applicable time periods and on the terms set forth therein for such payment. The payment and performance of such obligation shall be guaranteed under the Earn-Out Guaranty. Promptly following the payment of any Gross Earn-Out Payments by SCRE or Xxxxxxxxx Guarantor, then SCT Holdings, as agent on behalf of such payor, shall provide to VRLP a written notice of such Gross Earn-Out Payment, which shall include a copy of all applicable notice and backup documentation provided by the applicable seller under the applicable Earn-Out Purchase Agreement with respect to such Gross Earn-Out Payment, proof of payment and any other supporting documentation reasonably relating to payment of such Gross Earn-Out Payment. Unless an Event of Default has occurred and is continuing, VRLP shall reimburse SCT Holdings, as agent on behalf of the applicable payor, in an amount equal to one hundred percent (100%) of the amount of any such Gross Earn-Out Payment (any such amounts paid by VRLP, an “Earn-Out Payment” or “Earn-Out Payments”), which Earn-Out Payments shall be added to the Lease Basis in accordance with the Property Leases provided, that, if the payment of any Gross Earn-Out Payment would cause a default under any of any of the Lease Documents or the Transaction Documents, including, without limitation, the breach of any financial covenants set forth herein and therein, VRLP shall have no obligation to make an Earn-Out Payment with respect to such Gross Earn-Out Payment. Upon receipt of any Earn-Out Payments, SCT Holdings shall, as agent on behalf of the applicable payor, pay the same to or at the direction of such payor. SCT Holdings, as agent on behalf of the applicable payor, acknowledges that VRLP shall have no obligation to pay any portion of any Earn-Out Payments that are payable to SCT Holdings following the occurrence and during the continuation of any Event of Default or if the payment of the underlying Gross Earn-Out Payment would cause a default as set forth in the preceding sentence. Any Earn-Out Payments shall be deemed added to the Lease Basis, for purposes of adjusting Base Rent, on the date that such payment is made by VRLP.

Earnouts. Pursuant to Seller and Purchaser hereby acknowledge and agree that the Securities Purchase Agreement, SCRE Property is obligated to pay any and all of the earnout payments due under the Earn-Out Purchase Agreements, as described on Schedule 4 attached hereto (the “Gross Earn-Out Payments”) directly to the sellers set forth therein within the applicable time periods and on the terms set forth therein for such payment. The payment and performance of such obligation shall be guaranteed under the Earn-Out Guaranty. Promptly following the payment of any Gross Earn-Out Payments by SCRE or Xxxxxxxxx Guarantor, then SCT Holdings, as agent on behalf of such payor, shall provide to VRLP a written notice of such Gross Earn-Out Payment, which shall include a copy of all applicable notice and backup documentation provided by the applicable seller under the applicable Earn-Out Purchase Agreement with respect to such Gross Earn-Out Payment, proof of payment and any other supporting documentation reasonably relating to payment of such Gross Earn-Out Payment. Unless an Event of Default has occurred and is continuing, VRLP shall reimburse SCT Holdings, as agent on behalf of the applicable payor, in an amount equal to not one hundred percent (100%) occupied at the time of the amount of any such Gross Earn-Out Payment (any such amounts paid by VRLPClosing with all tenants occupying their space, an “Earn-Out Payment” or “Earn-Out Payments”)open for business and paying full rent, which Earn-Out Payments shall be added including CAM, taxes and insurance current. Notwithstanding anything to the Lease Basis in accordance with the Property Leases provided, that, if the payment of any Gross Earn-Out Payment would cause a default under any of any of the Lease Documents or the Transaction Documents, including, without limitation, the breach of any financial covenants set forth herein and therein, VRLP shall have no obligation to make an Earn-Out Payment with respect to such Gross Earn-Out Payment. Upon receipt of any Earn-Out Payments, SCT Holdings shall, as agent on behalf of the applicable payor, pay the same to or at the direction of such payor. SCT Holdings, as agent on behalf of the applicable payor, acknowledges that VRLP shall have no obligation to pay any portion of any Earn-Out Payments that are payable to SCT Holdings following the occurrence and during the continuation of any Event of Default or if the payment of the underlying Gross Earn-Out Payment would cause a default as contrary set forth in the preceding sentenceContract, Seller shall have until December 31, 2014 (“Earnout Period”) to receive additional proceeds of $320,000.00 (“Earnout Purchase Price”) by leasing the vacant space shown on Exhibit A attached hereto and made a part hereof (“Earnout Space”) to America’s Best Contacts & Eye Glasses or such other tenant acceptable to Purchaser (“Earnout Tenant”) upon lease terms reasonably acceptable to Purchaser and with a minimum five (5) year lease term and an annual base rent of at least $20.00 per square foot; provided, however, in no event shall the overall purchase price for the Property exceed $27,313,000.00. Any EarnDuring the Earnout Period, it shall be Seller’s responsibility and sole cost and expense for leasing out and paying all costs related to placing the Earnout Tenant into the Earnout Space, including, but not limited to, any commissions, tenant improvement allowances and concessions; provided, however, no tenant shall be Seller or an affiliate of Seller. The lease for the Earnout Space shall be subject to Purchaser’s prior written consent, such consent may be withheld by Purchaser in its reasonable discretion, and Seller is not entitled to any portion of the Earnout Purchase Price until a Purchaser-Out Payments approved tenant under a Purchaser-approved lease for an Earnout Space has accepted its space “as is” and takes total possession, has opened for business and commences full rental payments, including CAM, taxes and insurance on a pro rata basis, and Purchaser has received an estoppel letter reasonably acceptable to Purchaser from the Earnout Tenant (“Earnout Requirements”). The Earnout closing shall occur upon ten (10) business days advance written notice to Purchaser that the Earnout Requirements have been satisfied and provided that the Earnout Period has not expired; provided, however, (a) Seller hereby acknowledges that Seller waives its right to the Earnout Purchase Price if the Earnout Requirements have not been fully satisfied during the Earnout Period, and (b) at the Earnout closing, Seller shall deliver to Purchaser (if not previously delivered) a down date endorsement to Purchaser’s Owner’s Policy of Title Insurance showing that there are no mechanic’s or materialmens’ liens affecting Purchaser’s title to the Property caused by Seller. Purchaser shall act in a commercially reasonable manner and in good faith during its review and determination of the approval of the Earnout Tenant and/or lease presented to Purchaser. Also, Purchaser agrees to respond to any request for the approval of any new proposed Earnout Tenant and/or lease presented to Purchaser within seven (7) business days after receipt of such request and all reasonable documentation required to evaluate such request by Purchaser. If Purchaser fails to respond to such request within such 7-business day period and such failure continues for a period in excess of five (5) business days after Purchaser’s receipt of notice of such failure, then such proposed Earnout Tenant and/or lease shall be deemed added to the Lease Basis, for purposes of adjusting Base Rent, on the date that such payment is made approved by VRLPPurchaser.

Earnouts. Pursuant to Seller and Purchaser hereby acknowledge and agree that the Securities Purchase Agreement, SCRE Property is obligated to pay any and all of the earnout payments due under the Earn-Out Purchase Agreements, as described on Schedule 4 attached hereto (the “Gross Earn-Out Payments”) directly to the sellers set forth therein within the applicable time periods and on the terms set forth therein for such payment. The payment and performance of such obligation shall be guaranteed under the Earn-Out Guaranty. Promptly following the payment of any Gross Earn-Out Payments by SCRE or Xxxxxxxxx Guarantor, then SCT Holdings, as agent on behalf of such payor, shall provide to VRLP a written notice of such Gross Earn-Out Payment, which shall include a copy of all applicable notice and backup documentation provided by the applicable seller under the applicable Earn-Out Purchase Agreement with respect to such Gross Earn-Out Payment, proof of payment and any other supporting documentation reasonably relating to payment of such Gross Earn-Out Payment. Unless an Event of Default has occurred and is continuing, VRLP shall reimburse SCT Holdings, as agent on behalf of the applicable payor, in an amount equal to not one hundred percent (100%) occupied at the time of Closing with all tenants occupying their space, open for business and paying full rent, including CAM, taxes and insurance current. Notwithstanding anything to the contrary set forth in the Contract, Seller shall have twenty-four (24) months following the date of Closing (“Earnout Period”) to receive additional proceeds of up to $4,753,317.00 (“Earnout Purchase Price”) based upon an Earnout Annual Base Minimum Rent of $313,668.20 divided by the Base Rent Divider of 6.5989% by leasing the vacant space shown on Exhibit A attached hereto and made a part hereof (“Earnout Space”); provided, however, in no event shall the overall purchase price for the Property exceed $28,123,317.00. During the Earnout Period, it shall be Seller’s responsibility and sole cost and expense for leasing out and paying all costs related to placing the tenants into the Earnout Space, including, but not limited to, any commissions, tenant improvement allowances and concessions; provided, however, no tenant shall be Seller or an affiliate of Seller. Seller and Purchaser hereby acknowledge and agree that Camrich Holdings, Inc. shall be the exclusive broker with respect to the Property commencing on the date hereof and ending on the earlier of (i) the last day of the amount Earnout Period, or (ii) the date of any such Gross Earn-Out Payment (any such amounts paid by VRLP, an “Earn-Out Payment” or “Earn-Out Payments”), which Earn-Out Payments the final Earnout closing. The tenant for each Earnout Space and each lease for the Earnout Space shall be added subject to Purchaser’s prior written consent, such consent may be withheld by Purchaser in its reasonable discretion, and Seller is not entitled to any portion of the Lease Basis Earnout Purchase Price until a Purchaser-approved tenant under a Purchaser-approved lease for an Earnout Space has accepted its space “as is” and takes total possession, has opened for business and commences full rental payments, including CAM in accordance with the terms of the applicable lease, and taxes and insurance on a pro rata basis, and Purchaser has received an estoppel letter reasonably acceptable to Purchaser from each such tenant and for the first (1st) Earnout closing only, Arkansas Newk’s, LLC, a Mississippi limited liability company, is occupying its respective space in the Property Leases and paying full rent, including CAM, taxes and insurance current (“Earnout Requirements”). Each Earnout closing shall occur upon ten (10) business days advance written notice to Purchaser that the Earnout Requirements have been satisfied and provided the Earnout Period has not expired; provided, thathowever, (a) Seller hereby acknowledges that Seller waives its right to any additional proceeds if no lease for the payment applicable Earnout Space has been fully executed during the Earnout Period, and (b) at the respective Earnout closing, Seller shall deliver to Purchaser (if not previously delivered) a down date endorsement to Purchaser’s Owner’s Policy of any Gross Earn-Out Payment would cause Title Insurance showing that there are no mechanic’s or materialmens’ liens affecting Purchaser’s title to the Property caused by Seller. In the event that a default under any lease has been fully executed for an Earnout Space during the Earnout Period but the Earnout Requirements have not been satisfied and the final Seller’s notice of any satisfaction of the Lease Documents or Earnout Requirements has not been sent during the Transaction DocumentsEarnout Period, includingthen at the Earnout closing for such Earnout Space, without limitationthere shall be deducted from the applicable Earnout payment an amount equal to the daily rate of annual rent and taxes under such lease multiplied by the number of days from the date of the Earnout closing to the outside rent commencement date under such lease, as reasonably determined by Seller and Purchaser. Additionally, during the breach of any financial covenants set forth Earnout Period and until tenants have satisfied all requirements stated herein and therein, VRLP shall have no obligation to make an Earn-Out Payment with respect to such Gross Earn-Out Paymentits respective Earnout Space, Seller shall be responsible on a monthly basis for all taxes and insurance due for the applicable Earnout Space. Upon Purchaser shall act in a commercially reasonable manner and in good faith during its review and determination of the approval of any new proposed tenant and/or lease presented to Purchaser. Also, Purchaser agrees to respond to any request for the approval of any new proposed tenant and/or lease presented to Purchaser within seven (7) business days after receipt of any Earnsuch request and all reasonable documentation required to evaluate such request by Purchaser. If Purchaser fails to respond to such request within such 7-Out Payments, SCT Holdings shall, as agent on behalf business day period and such failure continues for a period in excess of the applicable payor, pay the same to or at the direction five (5) business days after Purchaser’s receipt of notice of such payor. SCT Holdingsfailure, as agent on behalf of the applicable payor, acknowledges that VRLP shall have no obligation to pay any portion of any Earn-Out Payments that are payable to SCT Holdings following the occurrence and during the continuation of any Event of Default or if the payment of the underlying Gross Earn-Out Payment would cause a default as set forth in the preceding sentence. Any Earn-Out Payments then such proposed tenant and/or lease shall be deemed added approved by Purchaser. In the event that any tenant and its new lease is approved (or deemed approved) and such lease is signed by the tenant and delivered to Purchaser but Purchaser fails to execute and deliver such lease within ten (10) business days after receipt thereof, then notwithstanding any other term of the Agreement between Seller and Purchaser to the Lease Basiscontrary, (i) the respective Earnout payment amount for purposes such lease shall be earned and (ii) the Earnout closing relating to such lease shall occur within ten (10) business days after Purchaser's receipt of adjusting Base Rentnotice from Seller thereof. Purchaser hereby approves the following proposed tenants: (i) Xxxxxx Xxxx Hamra (Potbelly’s franchisee), on the date that such payment is made by VRLP(ii) Casual Male Retail Store, LLC, a Delaware limited liability company, dba DXL Mens Apparel and (iii) Xxx Xxxxxxx dba The Dry Bar.

Earnouts. Pursuant to Seller and Purchaser hereby acknowledge and agree that the Securities Purchase Agreement, SCRE Property is obligated to pay any and all of the earnout payments due under the Earn-Out Purchase Agreements, as described on Schedule 4 attached hereto (the “Gross Earn-Out Payments”) directly to the sellers set forth therein within the applicable time periods and on the terms set forth therein for such payment. The payment and performance of such obligation shall be guaranteed under the Earn-Out Guaranty. Promptly following the payment of any Gross Earn-Out Payments by SCRE or Xxxxxxxxx Guarantor, then SCT Holdings, as agent on behalf of such payor, shall provide to VRLP a written notice of such Gross Earn-Out Payment, which shall include a copy of all applicable notice and backup documentation provided by the applicable seller under the applicable Earn-Out Purchase Agreement with respect to such Gross Earn-Out Payment, proof of payment and any other supporting documentation reasonably relating to payment of such Gross Earn-Out Payment. Unless an Event of Default has occurred and is continuing, VRLP shall reimburse SCT Holdings, as agent on behalf of the applicable payor, in an amount equal to not one hundred percent (100%) occupied at the time of the amount of any such Gross Earn-Out Payment (any such amounts paid by VRLPClosing with all tenants occupying their space, an “Earn-Out Payment” or “Earn-Out Payments”)open for business and paying full rent, which Earn-Out Payments shall be added including CAM, taxes and insurance current. Notwithstanding anything to the Lease Basis in accordance with the Property Leases provided, that, if the payment of any Gross Earn-Out Payment would cause a default under any of any of the Lease Documents or the Transaction Documents, including, without limitation, the breach of any financial covenants set forth herein and therein, VRLP shall have no obligation to make an Earn-Out Payment with respect to such Gross Earn-Out Payment. Upon receipt of any Earn-Out Payments, SCT Holdings shall, as agent on behalf of the applicable payor, pay the same to or at the direction of such payor. SCT Holdings, as agent on behalf of the applicable payor, acknowledges that VRLP shall have no obligation to pay any portion of any Earn-Out Payments that are payable to SCT Holdings following the occurrence and during the continuation of any Event of Default or if the payment of the underlying Gross Earn-Out Payment would cause a default as contrary set forth in the preceding sentenceContract, Seller shall have twenty-four (24) months following the date of Closing (“Earnout Period”) to receive additional proceeds of up to $4,874,726.00 (“Earnout Purchase Price”) based upon an Earnout Annual Base Minimum Rent of $370,042.00 divided by the Base Rent Divider of 7.5910% by leasing (i) the vacant space shown on Exhibit A attached hereto and made a part hereof (the “Constructed Vacant Space”) and (ii) vacant space located in a building(s) to be constructed by Seller after the date hereof (“Unbuilt Vacant Space”), the Constructed Vacant Space and the Unbuilt Vacant Space shall be collectively referred to herein as the “Earnout Space”); provided, however, in no event shall the overall purchase price for the Property exceed $23,997,286.00. Any EarnDuring the Earnout Period, it shall be Seller’s responsibility and sole cost and expense for leasing out and paying all costs related to placing the tenants into the Earnout Space, including, but not limited to, any commissions, tenant improvement allowances and concessions; provided, however, no tenant shall be Seller or an affiliate of Seller. The tenant for each Earnout Space and each lease for the Earnout Space shall be subject to the leasing parameters attached hereto as Exhibit B. Seller is not entitled to any portion of the Earnout Purchase Price until a Purchaser-Out Payments approved tenant under a Purchaser-approved lease for an Earnout Space has accepted its space “as is” and takes total possession, has opened for business and commences full rental payments, including CAM, taxes and insurance on a pro rata basis, all applicable tenant improvement allowances and leasing commissions have been paid in full and Purchaser has received an estoppel letter reasonably acceptable to Purchaser from each such tenant (“Earnout Requirements”). Each Earnout closing shall occur upon ten (10) business days advance written notice to Purchaser that the Earnout Requirements have been satisfied and provided the Earnout Period has not expired; provided, however, (a) Seller hereby acknowledges that Seller waives its right to any remaining payments of the Earnout Purchase Price if the Earnout Requirements for the Earnout Space have not been satisfied during the Earnout Period, and (b) at the respective Earnout closing, Seller shall deliver to Purchaser (if not previously delivered) a down date endorsement to Purchaser’s Owner’s Policy of Title Insurance showing that there are no mechanic’s or materialmens’ liens affecting Purchaser’s title to the Property caused by Seller. During the Earnout Period and until tenants have satisfied all requirements stated herein with respect to its respective Earnout Space, Seller shall be responsible on a monthly basis for all CAM, taxes and insurance due for the applicable Earnout Space, but in no event following the expiration of the Earnout Period. Purchaser shall act in a commercially reasonable manner and in good faith during its review and determination of the approval of any new proposed tenant and/or lease presented to Purchaser. Also, Purchaser agrees to respond to any request for the approval of any new proposed tenant and/or lease presented to Purchaser within ten (10) business days after receipt of such request and all reasonable documentation required to evaluate such request by Purchaser. If Purchaser fails to respond to such request within such 10-business day period and such failure continues for a period in excess of five (5) business days after Purchaser’s receipt of notice of such failure, then such proposed tenant and/or lease shall be deemed added to the Lease Basis, for purposes of adjusting Base Rent, on the date that such payment is made approved by VRLP.Purchaser. POST CLOSING AND INDEMNITY AGREEMENT