Escrow Holdback. (a.) Pursuant to the terms of a mutually acceptable Escrow Holdback Agreement for a term of three and one-half (3 ½) years entered into by Sellers and Purchasers (the “Escrow Holdback Agreement”), Sellers will deposit on the Closing Date into escrow an amount equal to the Maximum Indemnity Amount (the “Escrow Holdback Deposit”) as security for (a) any OTA Claims of New Operators, (ii) any OTA Post-Closing Adjustments and (c) any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement to Purchasers or the New Operators (such OTA Claims, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of Sellers of any kind whatsoever under this Agreement are collectively referred to hereinafter as “Sellers’ Surviving Liabilities”).
(b.) If Sellers’ Surviving Liabilities exceed the Maximum Indemnity Amount (as such amount shall decrease pursuant to Section 15(l) herein) such excess liabilities shall be the sole responsibility of Purchasers or New Operators and Sellers shall have no liability whatsoever for such excess.
(c.) Purchasers shall promptly notify Sellers in writing of any OTA Claim, OTA Post-Closing Adjustments and any indemnity obligations or liabilities of Seller of any kind whatsoever under this Agreement (including, without limitation, those requests for payment from the Escrow Holdback Deposit), which notification, if applicable, shall include the necessary supporting documentation to show that the Escrow Holdback Deposit should be distributed to Purchasers or New Operator pursuant to the terms the Escrow Holdback Agreement established under the OTA.
Escrow Holdback. In the event any part or all of the consideration payable to the Company or its stockholders in connection with a Trigger Event is paid into escrow or subject to holdback provisions, a portion or all of the Cash Bonus payable to Executive shall similarly be subject to such escrow or holdback provisions, in the same percentage as the escrowed amount relates to such total consideration. Thus, if 2% of the consideration payable to the Company (or its stockholders) in the Trigger Event is placed in escrow, then 2% of the Cash Bonus shall be placed the Company into escrow; the portion of the Cash Bonus so escrowed shall be paid to Executive only if and to the extent the escrowed or withheld Trigger Event consideration is released and paid to the Company (or its stockholders, as applicable). The terms of any Trigger Event escrow or holdback provisions shall govern the terms of the Company's right to withhold a portion of the Cash Bonus provided hereby.
Escrow Holdback. Seller and Buyer agree to a holdback of funds in the Escrow at Closing, in accordance with the following terms and conditions:
Escrow Holdback. At Closing, a portion of the Purchase Price equal to One Hundred Thousand Dollars ($100,000) (the “Holdback”) shall remain in escrow (the “Holdback Escrow”) with the Escrow Holder, pursuant to the terms of the “Holdback Agreement” attached hereto as Exhibit A and incorporated herein by this reference, which the parties will execute and deliver to Escrow at Closing. Any disbursement of the Holdback to Buyer in accordance with the Holdback Agreement shall result in a reduction of the Purchase Price. Notwithstanding the foregoing, for convenience the parties agree that the Purchase Price inclusive of the Holdback shall be the sum reported for purposes of calculating transfer taxes and value of the Property at Closing
Escrow Holdback. 4.1 Pursuant to the terms of the Notes, at the Closing the Holdback Amount on the aggregate principal amount of all Notes issued at such Closing, shall be retained by the Escrow Agent in the Escrow Account. Notwithstanding anything to the contrary contained herein, upon written notification by one or both of the Placement Agents to the Escrow Agent that an Event of Default (as defined in the Notes) has been declared by the Placement Agents with respect to a failure by the Company to make a complete quarterly interest payment in accordance with the Notes (the “Interest Payment Notice”), the Escrow Agent shall disburse such portion of the Holdback Amount to the Investors and in the amounts as set forth in such Interest Payment Notice. The Interest Payment Notice shall set forth the amount of the interest payment deficiency and the amount payable to each Investor.
4.2 Within fourteen (14) days following the disbursement of the Holdback Amount in accordance with Section 4.1 hereof, the Company shall deposit an additional amount equal to the Holdback Amount with the Escrow Agent to be retained and disbursed in accordance with Section 4.1 hereof.
4.3 It is acknowledged and agreed that the Placement Agents may deliver an Interest Payment Notice only following complete fulfillment by the Placement Agents of all procedures, and the lapse of applicable cure periods, set forth in the Notes relating to the declaration of an Event of Default under Section 7(a) of the Notes with respect to a failure by the Company to make a quarterly interest payment in accordance with the terms of the Notes.
4.4 On the Maturity Date (as defined in the Notes), at any time prior to the Maturity Date when 75% of all Notes have been converted or upon the redemption by the Company of all outstanding Notes, if the Company is not in breach of any of the Transaction Documents, all remaining funds of the Holdback Amount, if any, shall be disbursed to the Company promptly, and the Company’s obligation to maintain the Holdback Amount in escrow under this Article 4 shall cease.
Escrow Holdback. At Closing Seller shall deposit with the Escrow Agent an amount in cash equal to the Cap, which amount shall be held in escrow during the Survival Period (or such longer period with respect only to any unresolved claims pending as of expiration of the Survival Period as provided in the Holdback Escrow Agreement) and disbursed pursuant to the terms of an escrow agreement in the form of Exhibit Q attached hereto (the “Holdback Escrow Agreement”).
Escrow Holdback. On the Closing Date, Seller shall deposit in an interest-bearing escrow account with the Title Company the total sum equal to Two Hundred Fifty Thousand Dollars ($250,000.00) (the “Escrow Holdback”). The Escrow Holdback shall be held by the Title Company and distributed in accordance with the terms of an escrow holdback agreement to be entered into by and among the Seller, Buyer and New Operator (the “Escrow Holdback Agreement”). The purpose of the Escrow Holdback shall be to provide Buyer and New Operator with readily available funds for satisfaction of all payment of any amounts due with respect to any of the Seller’s indemnification obligations pursuant to this Agreement and to New Operator under the OTA, in all instances made before the three (3) year anniversary of the Closing Date (the “Escrow Release Date”). On the first-year anniversary of the Closing Date, a portion of the Escrow Holdback shall be released to Seller such that the balance of the funds remaining in the Escrow Holdback shall be equal to Two Hundred Thousand Dollars ($200,000.00). On the second-year anniversary of the Closing Date, a portion of the Escrow Holdback shall be released to Seller such that the balance of the funds remaining in the Escrow Holdback shall be equal to One Hundred Thousand Dollars ($100,000.00). On the Escrow Release Date, the Title Company shall deliver to Seller all amounts remaining in the Escrow Holdback, provided that on such date there does not exist a pending or unresolved Escrow Claim, in which event the amount of such pending or unresolved claim shall remain in the Escrow Holdback until paid to either Seller, Buyer or New Operator in connection with the resolution of such claim.
Escrow Holdback. Buyer and Seller agree that upon the Closing, $ of the purchase price under the Agreement (the “Holdback Amount”) shall not be released to Seller but shall instead be deposited into an escrow account with Escrow Agent. Escrow Agent shall not comingle the Holdback Amount with any other funds. The Holdback Amount: ☐ shall be invested by Escrow Agent in an interest-bearing account ☐ shall not be invested by Escrow Agent in an interest-bearing account
Escrow Holdback. At the Closing, there shall be withheld from the proceeds of the Purchase Price payable to the Seller and to the seller under the Phoenix Capital Transaction (as defined in paragraph 2.4(e) below) and maintained in Escrow for a period of twenty-four (24) months from the Closing, the sum of Three Million Five Hundred Thousand and No/I 00 Dollars ($3,500,000.00) (the “Holdback Funds”). Purchaser shall be entitled to draw upon the Holdback Funds to compensate Purchaser for: (1) any loss or damage in excess of Fifty Thousand and No/100 Dollars ($50,000.00) suffered as a result of: (a) the breach by the Seller of the representations and warranties set forth in this Agreement; or (b) any variance between: (i) the financial condition of SCWC at the Closing from the financial condition represented on the balance sheet forecast (as the same may be adjusted pursuant to paragraph 2.3(b) above) attached to this Agreement as Schedule 3.4(a); or (ii) the financial condition of PVUC at the Closing from the financial condition represented on the balance sheet forecast (as the same may be adjusted pursuant to paragraph 2.3(b) above) attached to this Agreement as Schedule 3.4(b) or (iii) the presence of off-balance sheet liabilities or lease obligations not disclosed on the Schedule of Liabilities and Lease Obligations attached to this Agreement as Schedule 3.11; (2) any loss or damage suffered as a result of a failure of the Facilities to have achieved Operational Status up to a maximum of $750,000 and only until the Facilities have achieved Operational Status; or (3)
Escrow Holdback. Earnout Adjustment Notwithstanding the foregoing, if a Change in Control occurs and any amount of proceeds from such Change in Control is held back or set aside as part of an escrow arrangement (or otherwise, including, without limitation, as part of a reserve to cover potential losses and other claims not covered by any escrow arrangement), or not yet earned (such as an earnout) or otherwise is structured as or represents a contingent or deferred payment (such as a working capital adjustment payment), when such amount held back, set aside or deferred is released (or earned and released, as applicable) to the Company’s equity holders, any additional amounts payable to you in respect thereof shall be paid on the same schedule and in accordance with the same terms and conditions as the released escrow (or reserve or earnout) payments are to be made to the equity holders, if any; provided that, to the extent required to avoid incurring additional taxes under Section 409A, no amounts will be payable with respect to the Award after the fifth anniversary of the closing of the Change in Control.
