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.
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.
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.
Escrow Amount At the Closing, Seller and Buyer shall enter into an escrow agreement in the form attached hereto as Exhibit A (the “Escrow Agreement”), pursuant to which Seller shall deposit Three Hundred Forty-Seven Thousand Two Hundred Ninety-Nine Dollars ($347,299) (the “Escrow Amount”) with the Escrow Agent, which shall be held by the Escrow Agent in a segregated account as security for Seller’s indemnification obligations under Section 15 hereof. All interest accruing on the Escrow Amount shall be for the benefit of Seller. In the event Buyer makes a written claim or demand for indemnification under Section 15 hereof (an “Indemnification Claim”), and Seller does not dispute such Indemnification Claim, or is determined to be liable for and in respect of such Indemnification Claim by a court of competent jurisdiction, then the Escrow Agent promptly thereafter shall pay such Indemnification Claim in full to Buyer, all as more particularly provided in the Escrow Agreement. On the date which is six (6) months after the Closing Date (as defined in Section 1.06 hereof), fifty percent (50%) of the Escrow Amount then remaining in escrow under the Escrow Agreement and not then subject to an outstanding Indemnification Claim shall be paid by the Escrow Agent to Seller. The Escrow Agreement shall expire upon the termination of the Survival Period (as defined in Section 15.01 hereof), and immediately thereafter the Escrow Agent shall pay the portion, if any, of the then remaining Escrow Amount not in dispute to Seller; provided, however, that if prior to the expiration of the Survival Period, Buyer shall have made an Indemnification Claim or commenced litigation or any other proceeding on account of any such claim, the term of the Escrow Agreement shall be extended, and the Escrow Agent shall continue to hold in escrow the portion of the then Escrow Amount in dispute, in each case until the final resolution of such Indemnification Claim or litigation or proceeding relating thereto, all as more particularly provided in the Escrow Agreement.
