Restoration The Restoration Fund shall be disbursed by the Trustee in accordance with the following conditions:
(a) If the cost of Restoration will exceed the Threshold Amount, prior to commencement of the Restoration the architects, general contractor(s), and plans and specifications for the Restoration shall be approved by Landlord, which approval shall not be unreasonably withheld or delayed, and which approval shall be granted to the extent that the plans and specifications depict a Restoration which is substantially similar to the Improvements and Equipment which existed prior to the occurrence of the casualty or Taking, whichever is applicable. Landlord will not withhold its consent for variations to the Improvements required as a result of current zoning and building code requirements.
(b) At the time of any disbursement, no Event of Default shall exist and no mechanics’ or materialmen’s Liens shall have been filed and remain undischarged or unbonded or for which Tenant shall fail to provide affirmative title insurance coverage.
(c) Disbursements shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts and the plans and specifications, (2) partial releases of Liens or conditional Lien waivers, and (3) other reasonable evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of mechanics’ Lien claims.
(d) Each request for disbursement shall be sent by Tenant to Landlord and to the Trustee, accompanied by a certificate of Tenant describing the work, materials or other costs or expenses, for which payment is requested and stating (i) the cost incurred in connection therewith, (ii) that no Event of Default exists and no mechanics’ or materialmen’s Liens shall have been filed and remain undischarged or unbonded, and (iii) that Tenant has not previously received payment for such work or expense; the certificate to be delivered by Tenant upon completion of the work shall, in addition, state that the work that is the subject of the request for disbursement has been substantially completed and complies with the applicable requirements of this Lease. The Trustee shall not release funds from the Restoration Fund unless and until it has received a written authorization from Landlord approving such release, which ▇▇▇▇▇▇▇▇ agrees to promptly give if ▇▇▇▇▇▇ has satisfied all of the requirements set forth in this Paragraph 15 in connection with such release.
(e) The Trustee shall retain a commercially reasonable retainage amount (but in no event less than 5% of the expected repair cost, other than general conditions, until the Restoration is 50% complete).
(f) The Restoration Fund shall be held by the Trustee and shall be invested as directed by Landlord. All interest shall become a part of the Restoration Fund.
(g) At all times the undisbursed balance of the Restoration Fund held by the Trustee, plus any funds contributed thereto by ▇▇▇▇▇▇, at its option, shall be not less than the cost of completing the Restoration (as reasonably estimated by ▇▇▇▇▇▇, provided that Tenant shall provide to Landlord the basis for such estimate, in reasonable detail, promptly after Landlord’s request therefor), free and clear of all Liens.
(h) In addition, prior to commencement of Restoration and at any time during Restoration, if the estimated cost of Restoration, as reasonably determined by a contractor or architect mutually selected by Landlord and Tenant, exceeds the amount of the Net Proceeds or the Net Award, as applicable, and Tenant Insurance Payment available for such Restoration, either, at Tenant’s option and determination, the amount of such excess shall be paid by Tenant to the Trustee to be added to the Restoration Fund or Tenant shall fund at its own expense the costs of such Restoration until the remaining Restoration Fund is sufficient for the completion of the Restoration. Any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of Restoration with respect to a casualty shall be paid to Tenant; any portion of a Net Award remaining after completion of Restoration with respect to a Taking shall be paid to Landlord.
Indemnity Escrow As a remedy for the indemnity set forth in Article VII, at the Closing, Parent shall deposit with the Escrow Agent 7.5% of the Transaction Shares (the “Escrowed Indemnity Shares”), comprised of Escrowed Earnout Shares (including First Target Shares, Second Target Shares and Third Target Shares) and Transaction Shares that are not Escrowed Earnout Shares to be held in a separate escrow account and released therefrom (if applicable) from time to time to Parent in satisfaction of such indemnity, all in accordance with Article VII hereof and the terms and conditions of the Escrow Agreement. On the fifth Business Day following the date (the “Indemnity Escrow Termination Date”) that is fifteen (15) months from the Closing Date, the Escrow Agent shall release the Escrowed Indemnity Shares, less any of such shares applied in satisfaction of a claim for indemnification and any of such shares related to a claim for indemnification that is then unresolved. Upon such release, Escrowed Indemnity Shares that constitute Transaction Shares shall be delivered to the Company Stockholders in accordance with Section 2.6(c) of the Company Disclosure Statement and the Escrow Agreement; and the Escrowed Indemnity Shares that constitute Escrowed Earnout Shares shall be retained in escrow in accordance with Section 2.8 hereof and the Escrow Agreement. Any Escrowed Indemnity Shares held with respect to any unresolved claim for indemnification and not applied as indemnification with respect to such claim upon its resolution shall be delivered in accordance with the preceding sentence.
Escrow Fund (a) At the Closing, Acquiror will deposit with the Escrow Agent an amount equal to the sum of (a) Three Million Dollars ($3,000,000) (the “Stakeholders’ Agent Escrow Amount”), plus (b) Fifty Five Million Dollars ($55,000,000) (the “Indemnity Escrow Amount” and collectively with the Stakeholders’ Agent Escrow Amount, the “Escrow Fund”). The Escrow Fund will be governed by the terms set forth in the Escrow Agreement. The Indemnity Escrow Amount will be available (i) to indemnify Acquiror pursuant to the indemnification provisions set forth in this Section 9, and (ii) to make any payment on behalf of the Former Stakeholders to Acquiror pursuant to Section 2.13. The Stakeholders’ Agent Escrow Amount will be available, without the requirement of any consent or approval by Acquiror, to indemnify and hold the Stakeholders’ Agent harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Stakeholders’ Agent without gross negligence or willful misconduct on the part of the Stakeholders’ Agent and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, and in no event will any of such liabilities, losses, damages, penalties, fines, costs or expenses payable to the Stakeholders’ Agent be paid from the Indemnity Escrow Amount.
(b) On the first Business Day following the Initial Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholder’s Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) the sum of (A) Twenty Three Million Dollars ($23,000,000) (the “Three Year Escrow Amount”) and (B) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. On the first Business Day following the Final Claim Termination Date, Acquiror and the Stakeholders’ Agent will be obligated to instruct the Escrow Agent to pay to each Former Stakeholder, in immediately available funds from the Indemnity Escrow Amount of the Escrow Fund, a dollar amount equal to each such Former Stakeholders’ Pro Rata Portion of the difference between (i) the aggregate amount then held in the Indemnity Escrow Amount of the Escrow Fund and (ii) a reserve amount equal to the estimate of Damages set forth in the Claims Notices relating to all pending and unresolved Claims. Any reserve amounts held in the Indemnity Escrow Amount of the Escrow Fund following the Final Claim Termination Date that are not expended in resolving a Claim shall be disbursed to the Former Stakeholders upon final resolution of the Claim to which it relates or if a reasonable person familiar with such matters would determine that such claim has been fully and finally abandoned or waived by the Third Party asserting the claim. Following the resolution of all Claims, the Stakeholders’ Agent Amount shall be disbursed to the Former Stakeholders as set forth in the Escrow Agreement.
No Holdback The proceeds of each Mortgage Loan have been fully disbursed (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs or other matters with respect to the related Mortgaged Property), and there is no obligation for future advances with respect thereto.
Holdback In consideration for the Company agreeing to its obligations under this Agreement, each Shareholder agrees in connection with any registration of the Company’s securities (whether or not such Shareholder is participating in such registration) upon the request of the Company and the underwriters managing any underwritten offering of the Company’s securities, not to effect (other than pursuant to such registration) any public sale or distribution of Registrable Securities, including, but not limited to, any sale pursuant to Rule 144 or Rule 144A, or make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any Registrable Securities, any other equity securities of the Company or any securities convertible into or exchangeable or exercisable for any equity securities of the Company without the prior written consent of the Company or such underwriters, as the case may be, during the Holdback Period, provided that nothing herein will prevent any Shareholder that is a partnership or corporation from making a distribution of Registrable Securities to the partners or shareholders thereof or a transfer to an Affiliate that is otherwise in compliance with applicable securities laws, so long as such distributees agree to be so bound. With respect to such underwritten offering of Registrable Securities covered by a registration pursuant to Sections 2.1 or 2.2, the Company further agrees not to effect (other than pursuant to such registration or pursuant to a Special Registration) any public sale or distribution, or to file any Registration Statement (other than such registration or a Special Registration) covering any, of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the Holdback Period with respect to such underwritten offering, if required by the managing underwriter, provided that notwithstanding anything to the contrary herein, the Company’s obligations under this Section 2.7 shall not apply during any twelve-month period for more than an aggregate of ninety days.
