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 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. 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 $2,245,162.15 of the Closing Date, plus proceeds of the Loan shall be disbursed by Agent into an amount equal to the Loss Rent Amount for each month from the Closing Date through the Sycamore Completion Date interest bearing money market account held and maintained by Agent (the “Sycamore Creek HoldbackTI Escrow Account”), of which $45,850.08 shall be earmarked for leasing commissions and $2,199,312.07 shall be earmarked for tenant improvements. The Sycamore Creek Holdback TI Escrow Account is hereby pledged to Agent as additional collateral for the Loan. Agent shall fund all or portions of the funds held in the TI Escrow Account, not more than once per calendar month, upon receipt by Agent of evidence (consisting of paid invoices, which shall be held by Escrow Agent in an interest bearing account until disbursed in accordance with this Section. Provided the same occurs prior subject to the Sycamore Completion Date, upon the delivery reasonable review and approval 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 Agent) that either (i) to Purchaser’s Designated Entity for Borrower has incurred out of pocket, third party costs in connection with leasing commissions or tenant improvement work required by the Sycamore Creek Property the Lost Rent Amount for the period between the Closing Date for the Sycamore Creek PropertyLeases, and the date that is thirty (30) days after the delivery of the Certificates of Occupancy, and or (ii) Borrower is reimbursing a tenant for tenant improvement work at its space within a Building; provided that Borrower has delivered to SellerAgent a copy of that certain spreadsheet delivered to Agent by email on June 26, 2008 by Xxxx Xxxxx at 12:34 a.m. Chicago time, which indicates the balance of line item (the Sycamore Creek Holdback“Holdback Line Item”) such reimbursement relates to. If Notwithstanding the Sycamore Creek Property Seller foregoing, from time to time upon Borrower’s request, Agent shall fail fund from the TI Escrow Account to deliver Borrower the post-repair Certificates of Occupancy difference in the amount allocated to a Holdback Line Item and all amounts previously disbursed from the TI Escrow Account to Borrower for such Holdback Line Item; provided that Borrower submits evidence reasonably acceptable to Agent that (x) Borrower or tenant under the applicable Lease has completed all damaged units at the Sycamore Creek Property to Purchaser’s Designated Entity prior tenant improvements and satisfied all leasing commissions pursuant to the Sycamore Completion Dateapplicable Lease, then on (y) the Sycamore Completion Date, Escrow Agent shall release tenant under the entire Sycamore Creek Holdback applicable Lease is no longer entitled to Purchaser’s Designated Entity with respect additional funds for tenant improvements or leasing commissions pursuant to the Sycamore Creek Propertyterms of such Lease, and Purchaser’s Designated Entity shall assume or (z) the completion of tenant under the repairsapplicable Lease has waived its rights to any additional funds for tenant improvements or leasing commissions to which it is otherwise entitled.