Post-Closing Escrow. In addition, during the period commencing on the Closing Date and ending on the one year anniversary of the Closing Date (or, in the event that any claim, action or suit is then pending by Buyer against Seller for a breach of a then-surviving representation, warranty or post-Closing covenant or indemnity of Seller (a “Post-Closing Claim”), until the final, non-appealable resolution of such Post-Closing Claim) (the “Holdback Period”), Existing Owner shall maintain funds (the “Post-Closing Escrow Funds”) in the amount of Two Million Dollars ($2,000,000) in the Holdback Escrow in accordance with the Holdback Escrow Agreement. The Post-Closing Escrow Funds shall be disbursed for amounts due to Buyer and/or its assignees from Existing Owner and/or the Other Existing Owners pursuant to this Agreement and/or the Other Property Purchase Agreements. The Parties acknowledge and agree that the amount of the Post-Closing Escrow Funds is an aggregate amount to be for the benefit of Buyer and its assignees in accordance with both this Agreement and the Other Property Purchase Agreements. In addition to the Holdback Escrow, Guarantor has agreed to provide the Purchase Agreement Guaranty. The execution and delivery to Buyer of the Purchase Agreement Guaranty shall not be deemed to limit any rights of Buyer under the Holdback Escrow Agreement and the execution and delivery to Buyer of the Holdback Escrow Agreement shall not be deemed to limit any rights of Buyer under the Guaranty; provided, however, that so long as the same does not prejudice or limit any rights of Buyer in connection with its rights under the Guaranty, Buyer agrees to pursue any Post-Closing Claim under the Holdback Escrow Agreement prior to pursuing such Post-Closing Claim against Guarantor. The provisions of this Section 7.3 shall survive the Closing for the Holdback Period. Any breach of a representation or warranty that occurs prior to Closing of which Buyer had actual knowledge shall be solely governed by Section 13.1.
Post-Closing Escrow. (a) At Closing, Buyer shall deposit the Escrow Amount with the Escrow Agent pursuant to the terms of this Agreement and the Escrow Agreement.
(b) The Escrow Amount will be utilized solely to satisfy any indemnification obligations of the Members to Buyer under Section 13.2 and to cover other amounts that can expressly be paid out of the Escrow Amount in accordance with the terms of this Agreement. The Escrow Agreement shall, subject to paragraph (c) of this Section 13.6, terminate upon the expiration of the General Survival Period, subject to continuation for disputed claims (the “Escrow Term”). The Escrow Agreement shall provide that the Escrow Amount may be drawn upon by Buyer, its successors or assigns solely for the purpose of satisfying any indemnification obligations of the Members under Section 13.2 and to cover other amounts that can expressly be paid from the Escrow Amount in accordance with the terms of this Agreement.
(c) If Buyer asserts a claim against the Escrow Amount under this Article XIII and the Member Representative does not dispute such claim, Buyer shall be entitled to indemnification by the Members in accordance with this Article XIII, including the right to receive from the Escrow Amount a number of Common Units being held in the Escrow Account equal to the quotient of Damages for which Buyer is entitled for such claim under this Article XIII divided by the Closing Date Common Unit Value. If, however, the Member Representative disputes such claim, Buyer shall receive the undisputed portion thereof, if any, in accordance with the formula set forth in the previous sentence but shall not be entitled to receive any such disputed portion thereof from the Escrow Amount with respect to such claim prior to resolution of such Dispute and, if such Dispute extends beyond the expiration of the Escrow Term, the term of the Escrow Term will be automatically extended as provided in paragraph (d) of this Section 13.6.
(d) Provided the indemnification obligations of the Members for claims of indemnification under this Article XIII of which the Member Representative has been notified prior to the expiration of the Escrow Term have been satisfied and no Dispute then exists as to any claim for indemnification by Buyer for such claims, the balance of the Escrow Amount will be released to the Member Representative for distribution to the Members on the first Business Day immediately following the expiration of the Escrow Term. To the extent there does ex...
Post-Closing Escrow. As used herein, the term "Costs Savings" shall mean the documented and approved (by the Acquirer and Contributor in their good faith reasonable judgment) amounts by which the total actual "Development Expenses" incurred as of Closing in connection with the Project is less than the total "Development Budget" for work completed as of Closing (as those terms are defined in that certain Hotel Development Agreement dated February 28, 2002, as amended by a First Amendment to Hotel Development Agreement dated as of July 1, 2003 (the "Hotel Development Agreement"), between Stormont Hospitality Group, LLC (the "Developer") and the Partnership). In the event that the Acquirer elects to pay off the Project Loan prior to Project Close-Out (as defined below), then the Acquirer agrees to fund into an escrow account (the "Escrow") an amount equal to the difference between (a) $27,750,000, and (b) the actual principal amount of the Project Loan which is paid off at Closing. The Escrow shall be held by Acquirer until Project Close-Out occurs. The Developer shall be entitled to request and receive from the Escrow monthly disbursements of funds in accordance with the draw procedures set forth in the Hotel Development Agreement to pay actual Development Expenses incurred which are shown on the Development Budget but which were not paid or payable prior to Closing. If the Escrow is established as provided above, then upon the occurrence of Project Close-Out, if Costs Savings exist, any amounts remaining in the Escrow shall be distributed as follows within five (5) business days after Project Close-Out: (i) 80% shall be distributed in cash in the following order: first to the Acquirer up to the amount of any "Operating Losses" (as defined below) that have been incurred (such amount being referred to herein as the "Operating Loss Off-Set Amount"), and the remaining portion, if any, to the Contributor (or its designee), and (ii) 20% to the Stormont Limited Partner. If the amount distributed to the Contributor (or its designee) from the Escrow is insufficient to pay the Contributor (or its designee) 80% of the Cost Savings (less the Operating Loss Off-Set Amount), then the Acquirer shall pay such insufficient amount to the Contributor (or its designee) in cash within five (5) business days after Project Close-Out occurs. The Acquirer acknowledges that BCC or its affiliate has posted with the Project Lender a $1,000,000 certificate of deposit (the "CD"), which is being held by the ...
Post-Closing Escrow. As security for Seller’s obligations, if any, during the Claim Period, at the Closing Seller shall either (i) deposit in an account designated by the Escrow Agent an amount equal to the Damage Cap in immediately available funds, or (ii) deliver to the Escrow Agent a letter of credit in a form reasonably acceptable to Purchaser in the stated amount of the Damage Cap (such funds, together with any interest earned thereon, net of investment costs, or such Letter of Credit, the “Post-Closing Escrow Funds”). Such Post-Closing Escrow Funds shall be held by Escrow Agent pursuant to the Escrow Instructions in the form attached hereto as Schedule 10.5 (the “Post-Closing Escrow Agreement”) until the expiration of the Claim Period (unless, prior to the expiration of the Claim Period, a claim for such Post-Closing Escrow Funds is made by Purchaser, in which event the Post-Closing Escrow Funds shall continue to be held in accordance with the terms of the Post-Closing Escrow Agreement) and disbursed in accordance with the terms of such Post-Closing Escrow Agreement.
Post-Closing Escrow. At Closing, the Escrow Agent shall hold back a total of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) to be placed in escrow for a period of six (6) months after the Closing pursuant to a mutually agreeable escrow agreement to be agreed upon on or before the day which is five (5) Business Days prior to Closing, which funds shall be used to satisfy surviving post-Closing obligations of Seller under this Agreement and/or any documents executed by Seller and delivered to Buyer at Closing.
Post-Closing Escrow. Notwithstanding the provisions of the Second Amendment, the parties have agreed that they will not have a Post-Closing Escrow held by Escrow Agent. The provisions of the Second Amendment related to the Post-Closing Escrow are hereby deemed to be of no further force or effect.
Post-Closing Escrow. At Closing, a portion of the Purchase Price equal to Eighty-Five Million Dollars ($85,000,000) less the Performance Deposit (the “Closing Escrow Amount”) will be delivered by Buyer to the Escrow Agent to serve along with the Performance Deposit as security in support of the indemnification obligations of Seller pursuant to Section 8.4. For purposes of this Agreement and the Escrow Agreement, the “Holdback Amount” shall equal the Closing Escrow Amount delivered by Buyer to the Escrow Agent at Closing plus the Performance Deposit. The Holdback Amount, together with the interest earned thereon from and after the Closing Date, is referred to herein as the “Escrow Fund.” The Escrow Fund shall be held in the Escrow Account and released in accordance with the provisions of this Section 2.4 and the Escrow Agreement. From time to time after Closing, the Escrow Agent shall be jointly instructed in writing by Seller and Buyer to release all or portions of then-remaining Escrow Fund to Buyer or to Seller, in each case, as provided below in this Section 2.4.
Post-Closing Escrow. At the Closing, (i) Seller, Purchaser and Escrow Agent shall enter into an agreement (the “Post-Closing Escrow Agreement”), which Post-Closing Escrow Agreement shall be in the form attached as Exhibit “K” hereto and (ii) Seller shall deposit with Escrow Agent an amount equal to $1,600,000, which amount shall be held in escrow, and disbursed, by Escrow Agent pursuant to the terms of the Post-Closing Escrow Agreement.
Post-Closing Escrow. Seller hereby unconditionally and irrevocably guarantees to Buyer the truth and accuracy or the representations and warranties contained herein, the Seller's obligations under the Agreement, and the indemnification obligations under Section 12 of the Agreement (collectively, "Guaranteed Obligatons") At Closing $300,000 of the Purchase Price (`Escrow Amount") shall be placed in escrow with the Escrow Agent for two years to secure the Guaranteed Obligations. The Post C1osing provisions of Exhibit "B" to the Agreement. Holdings hereby agrees to indemnify and hold harmless Buyer from and against the matter set forth in Section 12 of the Agreement and that the Escrow Amount may be used by Buyer to satisfy any of Holdings's obligations hereunder.
Post-Closing Escrow. At the Closing, Buyer shall deliver to the escrow agent set forth in the Post-Closing Escrow Agreement, dated as of the Closing Date, by and among the parties hereto and The Bank of New York, as escrow agent (the "Post-Closing Escrow Agent"), on terms reasonably satisfactory to Buyer and Sellers (the "Post-Closing Escrow Agreement") $1,575,000 (the "Post-Closing Escrow Amount), such amount to be held by the Post-Closing Escrow Agent until November 30, 2003, except as provided for herein and in the Post-Closing Escrow Agreement, and disbursed by it in accordance with the terms of the Post-Closing Escrow Agreement. At the time of final disbursement of the Post-Closing Escrow Amount, any earnings on the Post-Closing Escrow Amount shall be disbursed to the parties pro rata in proportion to the ultimate distribution of the Post-Closing Escrow Amount.
