Common use of Holdback Clause in Contracts

Holdback. If by the Closing Date, the aforementioned repairs are not complete and the post-repair Certificates of Occupancy have not been delivered to Purchaser, then, at Closing, the Sycamore Creek Property Seller shall direct Escrow Agent to hold back a sum of money equal to the costs to complete the repairs to the down units as of the Closing Date, plus an amount equal to the Loss Rent Amount for each month from the Closing Date through the Sycamore Completion Date (the “Sycamore Creek Holdback”). The Sycamore Creek Holdback shall be held by Escrow Agent in an interest bearing account until disbursed in accordance with this Section. Provided the same occurs prior to the Sycamore Completion Date, upon the delivery of the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity with respect thereto, Escrow Agent shall release from the Sycamore Creek Holdback (i) to Purchaser’s Designated Entity for the Sycamore Creek Property the Lost Rent Amount for the period between the Closing Date for the Sycamore Creek Property, and the date that is thirty (30) days after the delivery of the Certificates of Occupancy, and (ii) to Seller, the balance of the Sycamore Creek Holdback. If the Sycamore Creek Property Seller shall fail to deliver the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity prior to the Sycamore Completion Date, then on the Sycamore Completion Date, Escrow Agent shall release the entire Sycamore Creek Holdback to Purchaser’s Designated Entity with respect to the Sycamore Creek Property, and Purchaser’s Designated Entity shall assume the completion of the repairs.

Holdback. If by At the Closing Date, the aforementioned repairs are not complete and the post-repair Certificates of Occupancy have not been delivered to Purchaser, then, at Closing, the Sycamore Creek Property Seller Sellers shall direct deposit the Holdback Amount with Escrow Agent and Escrow Agent shall hold the Holdback Amount in an interest bearing account to hold back be available to reimburse the Purchaser (and its Subsidiaries and/or affiliates) for any and all losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties, and reasonable attorney’s fees (collectively, “Losses”) incurred by the Purchaser (and its Subsidiaries and/or affiliates) in connection with any breach by any Seller Party of any of the terms, conditions, covenants or representations and warranties of such Seller Party as set forth in this Agreement. If neither the Purchaser nor its Subsidiaries or affiliates has made a sum of money equal to claim for any such Losses on or before the costs to complete the repairs to the down units as first (1st) anniversary of the Closing Date, plus an amount equal to then the Loss Rent Amount for each month from the Closing Date through the Sycamore Completion Date (the “Sycamore Creek Holdback”). The Sycamore Creek Holdback shall be held by Escrow Agent in an interest bearing account until disbursed in accordance with this Section. Provided the same occurs prior to the Sycamore Completion Date, upon the delivery of the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity with respect thereto, Escrow Agent shall release from the Sycamore Creek Holdback (i) to Purchaser’s Designated Entity for the Sycamore Creek Property the Lost Rent Amount for the period between the Closing Date for the Sycamore Creek Property, and the date that is thirty (30) days after the delivery of the Certificates of Occupancy, and (ii) to Seller, the balance of the Sycamore Creek Holdback. If the Sycamore Creek Property Seller shall fail to deliver the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity prior to the Sycamore Completion Date, then on the Sycamore Completion Date, Escrow Agent shall release the entire Sycamore Creek Holdback to Purchaser’s Designated Entity with respect Amount to the Sycamore Creek Property, and Purchaser’s Designated Entity shall assume Sellers. If the completion Purchaser (or its Subsidiaries and/or affiliates) makes a claim against any Seller Party on or before the first (1st) anniversary of the repairsClosing Date and notifies Escrow Agent thereof, then the Escrow Agent shall retain the Holdback Amount until the claim is finally resolved by a written agreement signed by both parties and delivered to the Escrow Agent or by delivery of the amount of the claim to a court of competent jurisdiction by Escrow Agent, in which event the Escrow Agent shall be released and discharged from all further obligations hereunder. Any Loss determined to be due to the Purchaser (and its Subsidiaries and/or affiliates) shall be recovered first from the Holdback Amount; provided, however, the Holdback Amount shall not limit or otherwise cap any Seller’s liability under this Agreement.

Holdback. If The remaining two and one-half percent (2.5%) of the Purchase Price for the Servicing Rights related to the Mortgage Loans sold on the related Sale Date shall be held back by the Closing DatePurchaser (the “Holdback Funds”). Until such time as all Uncured Document Exceptions are cured, there shall be a minimum of at least $[***] in Holdback Funds. Commencing no later than the Initial Exceptions List Deadline, and on each calendar month thereafter, the aforementioned repairs are not complete and Purchaser shall provide the post-repair Certificates of Occupancy have not been delivered to Purchaser, then, at Closing, the Sycamore Creek Property Seller shall direct Escrow Agent to hold back a sum of money equal to the costs to complete the repairs to the down units with an Exceptions List noting all Uncured Document Exceptions as of the Closing Date, plus an amount equal end of the prior calendar month for all of the Mortgage Loans relating to the Loss Rent Amount Servicing Rights sold on the related Sale Date. Once the Seller has cured all Uncured Document Exceptions for each month from any Mortgage Loan or the Closing Date through Mortgage Loan has paid in full, the Sycamore Completion Date (Purchaser shall pay to the “Sycamore Creek Holdback”). The Sycamore Creek Seller the amount of any Holdback shall be Funds then held by Escrow Agent in an interest bearing account until disbursed in accordance the Purchaser with this Section. Provided the same occurs prior respect to the Sycamore Completion Datecured or paid in full Mortgage Loans on a pro-rata basis within one (1) Business Day of providing the Seller with an Exceptions List. For the avoidance of doubt, upon the delivery of the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity with respect thereto, Escrow Agent shall release from the Sycamore Creek Holdback (i) the Holdback Funds will be administered under this Section 3.03(c) in the aggregate with respect to Purchaser’s Designated Entity for the Sycamore Creek Property the Lost Rent Amount for the period between the Closing Date for the Sycamore Creek Property, and the date that is thirty (30) days after the delivery all Servicing Rights sold under this Agreement regardless of the Certificates number of Occupancy, Sale Dates or Transfer Dates and (ii) all Uncured Document Exceptions for any given Mortgage Loan must have been cleared by Seller or such Mortgage Loan must have been paid in full in order for the Purchaser to Sellerdisburse the Holdback Funds related to the Mortgage Loan. Purchaser shall have the right to pay from the Holdback Funds the cost or expense charged by an unaffiliated third party to assist with the curing of any Uncured Document Exceptions. Purchaser shall consult with Seller prior to instructing such third party to cure any particular Uncured Document Exceptions to confirm if such exception has been cured or such cure is expected to be cured in a reasonable period of time. Purchaser shall provide Seller with copies of invoices from such third parties involved in assisting the Purchaser curing any Uncured Document Exceptions for amounts that are deducted from the Holdback Funds. Notwithstanding any provision in this Section 3.03(c) to the contrary, at the balance end of the Sycamore Creek Holdback. If twelve (12) month period following the Sycamore Creek Property Seller last Servicing Transfer Date (not relating to Pipeline Mortgage Loans), any remaining Holdback Funds shall fail to deliver the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity prior be released to the Sycamore Completion Date, then on the Sycamore Completion Date, Escrow Agent shall release the entire Sycamore Creek Holdback to Purchaser’s Designated Entity with respect to the Sycamore Creek Property, and Purchaser’s Designated Entity shall assume the completion of the repairsSeller.

Holdback. If by A Purchaser Indemnitee shall be paid from the Closing DateIndemnification Holdback Fund the amount of any Damage for which it has been finally determined in accordance with Part 10.9(d) of the Disclosure Letter that such Purchaser Indemnitee is entitled to indemnification pursuant to this Section 8, promptly after such final determination. So long as any of the Indemnification Holdback Amount remains in the Indemnification Holdback Fund, the aforementioned repairs are not complete and Indemnification Holdback Fund shall be the post-repair Certificates sole source of Occupancy have not been delivered to Purchaser, then, at Closing, recovery for any Damage incurred by a Purchaser Indemnitee under Section 8.2 of this Agreement. The period during which claims for indemnification from the Sycamore Creek Property Seller Indemnification Holdback Fund may be initiated shall direct Escrow Agent to hold back a sum of money equal to the costs to complete the repairs to the down units as of the Closing Date, plus an amount equal to the Loss Rent Amount for each month from commence on the Closing Date through the Sycamore Completion Date and terminate at 5:00 p.m., Pacific Time, on December 31, 2014 (the “Sycamore Creek HoldbackIndemnification Holdback Claim Period”). The Sycamore Creek Notwithstanding anything to the contrary in this Agreement, on the date of expiration of the Indemnification Holdback Claim Period, such portion of the Indemnification Holdback Fund as may be necessary, in the reasonable judgment of Purchaser, to satisfy any then unresolved or unsatisfied claims for Damages (to the extent specified in any Claims Notice delivered to the Seller pursuant to Section 8.2 prior to the expiration of the Indemnification Holdback Claim Period) shall be held by Escrow Agent remain in an interest bearing account the Indemnification Holdback Fund until disbursed such claims for Damages have been resolved or satisfied in accordance with this SectionSection 8. Provided the same occurs prior to the Sycamore Completion Date, upon the delivery of the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity with respect thereto, Escrow Agent shall release from the Sycamore Creek Holdback (i) to Purchaser’s Designated Entity for the Sycamore Creek Property the Lost Rent Amount for the period between the Closing Date for the Sycamore Creek Property, and the date that is thirty (30) Within three business days after the delivery date of expiration of the Certificates of Occupancy, and (ii) to SellerIndemnification Holdback Claim Period, the balance of the Sycamore Creek Holdback. If the Sycamore Creek Property Seller shall fail to deliver the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity prior Indemnification Holdback Fund, less any amount determined pursuant to the Sycamore Completion Dateprevious sentence, then on shall be paid by the Sycamore Completion Date, Escrow Agent shall release the entire Sycamore Creek Holdback to Purchaser’s Designated Entity with respect Purchaser to the Sycamore Creek Property, and Purchaser’s Designated Entity shall assume the completion of the repairsSeller.

Holdback. If by A Purchaser Indemnitee shall be paid from the Closing DateIndemnification Holdback Fund the amount of any Damage for which it has been finally determined in accordance with Part 10.9(d) of the Disclosure Letter that such Purchaser Indemnitee is entitled to indemnification pursuant to this Section 8, promptly after such final determination. So long as any of the Indemnification Holdback Amount remains in the Indemnification Holdback Fund, the aforementioned repairs are not complete and Indemnification Holdback Fund shall be the post-repair Certificates sole source of Occupancy have not been delivered to Purchaser, then, at Closing, recovery for any Damage incurred by a Purchaser Indemnitee under Section 8.2 of this Agreement. The period during which claims for indemnification from the Sycamore Creek Property Seller Indemnification Holdback Fund may be initiated shall direct Escrow Agent to hold back a sum of money equal to the costs to complete the repairs to the down units as of the Closing Date, plus an amount equal to the Loss Rent Amount for each month from commence on the Closing Date through the Sycamore Completion Date and terminate at 5:00 p.m., Pacific Time, on December 31, 2014 (the “Sycamore Creek HoldbackIndemnification Holdback Claim Period”). The Sycamore Creek Notwithstanding anything to the contrary in this Agreement, on the date of expiration of the Indemnification Holdback Claim Period, such portion of the Indemnification Holdback Fund as may be necessary, in the reasonable judgment of Purchaser, to satisfy any then unresolved or unsatisfied claims for Damages (to the extent specified in any Claims Notice delivered to the Seller pursuant to Section 8.2 prior to the expiration of the Indemnification Holdback Claim Period) shall be held by Escrow Agent remain in an interest bearing account the Indemnification Holdback Fund until disbursed such claims for Damages have been resolved or satisfied in accordance with this SectionArticle 8. Provided the same occurs prior to the Sycamore Completion Date, upon the delivery of the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity with respect thereto, Escrow Agent shall release from the Sycamore Creek Holdback (i) to Purchaser’s Designated Entity for the Sycamore Creek Property the Lost Rent Amount for the period between the Closing Date for the Sycamore Creek Property, and the date that is thirty (30) Within three business days after the delivery date of expiration of the Certificates of Occupancy, and (ii) to SellerIndemnification Holdback Claim Period, the balance of the Sycamore Creek Holdback. If the Sycamore Creek Property Seller shall fail to deliver the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity prior Indemnification Holdback Fund, less any amount determined pursuant to the Sycamore Completion Dateprevious sentence, then on shall be paid by the Sycamore Completion Date, Escrow Agent shall release the entire Sycamore Creek Holdback to Purchaser’s Designated Entity with respect Purchaser to the Sycamore Creek Property, and Purchaser’s Designated Entity shall assume the completion of the repairsSeller.

Holdback. If by A Purchaser Indemnitee shall be paid from the Closing DateIndemnification Holdback Fund the amount of any Damage for which it has been finally determined in accordance with Part 10.9(d) of the Disclosure Letter that such Purchaser Indemnitee is entitled to indemnification pursuant to this Section 8, promptly after such final determination. So long as any of the Indemnification Holdback Amount remains in the Indemnification Holdback Fund, the aforementioned repairs are not complete and Indemnification Holdback Fund shall be the post-repair Certificates sole source of Occupancy have not been delivered to Purchaser, then, at Closing, recovery for any Damage incurred by a Purchaser Indemnitee under Section 8.2 of this Agreement. The period during which claims for indemnification from the Sycamore Creek Property Seller Indemnification Holdback Fund may be initiated shall direct Escrow Agent to hold back a sum of money equal to the costs to complete the repairs to the down units as of the Closing Date, plus an amount equal to the Loss Rent Amount for each month from commence on the Closing Date through the Sycamore Completion Date and terminate at 5:00 p.m., Pacific Time, on December 31, 2014 (the “Sycamore Creek HoldbackIndemnification Holdback Claim Period”). The Sycamore Creek Notwithstanding anything to the contrary in this Agreement, on the date of expiration of the Indemnification Holdback Claim Period, such portion of the Indemnification Holdback Fund as may be necessary, in the reasonable judgment of Purchaser, to satisfy any then unresolved or unsatisfied claims for Damages (to the extent specified in any Claims Notice delivered to the Seller pursuant to Section ?8.2 prior to the expiration of the Indemnification Holdback Claim Period) shall be held by Escrow Agent remain in an interest bearing account the Indemnification Holdback Fund until disbursed such claims for Damages have been resolved or satisfied in accordance with this SectionArticle 8. Provided the same occurs prior to the Sycamore Completion Date, upon the delivery of the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity with respect thereto, Escrow Agent shall release from the Sycamore Creek Holdback (i) to Purchaser’s Designated Entity for the Sycamore Creek Property the Lost Rent Amount for the period between the Closing Date for the Sycamore Creek Property, and the date that is thirty (30) Within three business days after the delivery date of expiration of the Certificates of Occupancy, and (ii) to SellerIndemnification Holdback Claim Period, the balance of the Sycamore Creek Holdback. If the Sycamore Creek Property Seller shall fail to deliver the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity prior Indemnification Holdback Fund, less any amount determined pursuant to the Sycamore Completion Dateprevious sentence, then on shall be paid by the Sycamore Completion Date, Escrow Agent shall release the entire Sycamore Creek Holdback to Purchaser’s Designated Entity with respect Purchaser to the Sycamore Creek Property, and Purchaser’s Designated Entity shall assume the completion of the repairsSeller.

Holdback. (a) At the Closing, as a source of security for any indemnification and other obligations of Seller and the other Selling Group Members under this Agreement, the Purchasing Group Members shall withhold the Holdback Amount from the Cash Consideration Component to be held by Purchaser Parent for the Holdback Period as a non-exclusive source for effecting the payment and discharge of any indemnification or other obligations of Seller or any other Selling Group Member under this Agreement. The Holdback Amount does not set a maximum amount of liability of Seller and the other Selling Group Members for their indemnification and other obligations under this Agreement. Unless consented to by Purchaser Parent in writing, which consent may be withheld in Purchaser Parent’s sole discretion, Seller and the other Selling Group Members must pay any amounts payable by Seller or any other Selling Group Member out of funds other than the Holdback Amount. (b) If the Purchasing Group Members at any time, and from time to time, determine that any Purchasing Group Member may be entitled to payment, reimbursement or indemnification for any amount under this Agreement (“Holdback Claim”), the Purchasing Group Members will notify the Selling Group Members of such claim (“Holdback Claim Notice”). The Holdback Claim Notice shall set forth the amount claimed and the basis of the Purchasing Group Members’ claim in reasonable detail, together with any supporting documentation. (c) Within fifteen (15) days after delivery of a Holdback Claim Notice, the Selling Group Members may deliver to the Purchasing Group Members a written objection to all or any part of the Holdback Claim Notice (“Holdback Claim Objection”). A Holdback Claim Objection shall set forth the amount of the Holdback Claim Notice disputed and the basis of the Selling Group Members’ objection to the Holdback Claim Notice in reasonable detail, together with any supporting documentation. (d) If Seller fails to deliver a Holdback Claim Objection to Purchaser by 5:00 P.M. Eastern Time on the 15th day following delivery of a Holdback Claim Notice to Seller (or the next succeeding Business Day if such 15th day is not a Business Day), the Holdback Amount and the Purchase Consideration shall be reduced by the Closing Dateamount requested in the Holdback Claim Notice. Purchaser shall continue to hold the remaining balance of the Holdback Amount, if any, in accordance with the terms of this Agreement. (e) If the Selling Group Members deliver a Holdback Claim Objection within the time provided in Section 6.6(d) with respect to all or any portion of a Holdback Claim Notice, the aforementioned repairs are Holdback Amount shall not complete be reduced by the amount requested in the Holdback Claim Notice or the disputed portion thereof, as applicable, pending either (i) written agreement of the Purchasing Group Members and the postSelling Group Members as to the action to be taken in respect of such Holdback Claim Notice; or (ii) the submission of such Holdback Claim Notice and Holdback Claim Objection to arbitration in accordance with Section 7.6 and a final non-repair Certificates appealable award with respect to such arbitration having been rendered (in each case under clause (e)(i) or (ii), a “Disputed Holdback Claim Resolution”). Upon resolution of Occupancy have a disputed Holdback Claim, and if the Disputed Holdback Claim Resolution provides for a payment or reimbursement to any Purchasing Group Member, the Purchase Consideration and the Holdback Amount shall be reduced in accordance with the Disputed Holdback Claim Resolution. If the Disputed Holdback Claim Resolution does not been delivered provide for a payment or reimbursement to Purchaser, then, at Closing, the Sycamore Creek Property Seller then Purchaser shall direct Escrow Agent continue to hold back a sum the amount of money equal to the costs to complete resolved Holdback Claim in the repairs to Holdback fund in accordance with the down units terms of this Agreement. (f) The Holdback Amount remaining as of the Closing Holdback Release Date, plus if any, shall be reduced by an amount equal to the Loss Rent Amount for each month from the Closing Date through the Sycamore Completion Date excess (the “Sycamore Creek Holdback”). The Sycamore Creek Holdback shall be held by Escrow Agent in an interest bearing account until disbursed in accordance with this Section. Provided the same occurs prior to the Sycamore Completion Date, upon the delivery if any) of the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity with respect thereto, Escrow Agent shall release from the Sycamore Creek Holdback (i) to Purchaser’s Designated Entity for the Sycamore Creek Property the Lost Rent Amount for the period between the Closing Date for the Sycamore Creek Property, and the date that is thirty (30) days after the delivery of the Certificates of Occupancy, and (ii) to Seller, the balance of the Sycamore Creek Holdback. If Holdback Amount on the Sycamore Creek Property Seller shall fail Holdback Release Date; over (ii) the sum of all amounts reflected in any then outstanding and unresolved Holdback Claim Notices and the sum of all amounts which have not been paid to deliver the post-repair Certificates of Occupancy for all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity Purchasing Group Members prior to the Sycamore Completion Holdback Release Date as a result of Holdback Claims resolved under Section 6.6(d) or Section 6.6(e) (the excess amount, if any being referred to herein as the “Holdback Release Amount.” As promptly as practicable after the Holdback Release Date, then on and not later than the Sycamore Completion fifth Business Day following the Holdback Release Date, Escrow Agent Purchaser shall release from and disburse the entire Sycamore Creek Holdback Release Amount to Purchaser’s Designated Entity with respect to the Sycamore Creek Property, and Purchaser’s Designated Entity shall assume the completion of the repairsSeller.