Common use of Holdback Amount Clause in Contracts

Holdback Amount. For any Loss for which the Sellers are obligated to indemnify the Buyer Indemnitees, the Buyer Indemnitees shall seek reimbursement for such Loss from the Holdback Amount first, and once the Holdback Amount is exhausted, then the Buyer Indemnitees may proceed to collect the unreimbursed amount of such Loss: (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of the Holdback Amount more than twelve (12) months after the Closing Date, unless mutually agreed upon by the parties, and on the first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount, less any pending claims to the Sellers. Once any pending claims are resolved in accordance with this Agreement, the then remaining Holdback Amount shall be paid to Sellers.

Holdback Amount. For any Loss for which the Sellers Seller Parties are obligated to indemnify the Buyer Indemnitees, the Buyer Indemnitees shall seek reimbursement for such Loss from the Holdback Amount first, and once the Holdback Amount is exhausted, then the Buyer Indemnitees may proceed to collect the unreimbursed amount of such Loss: (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, Year 1 Earnout and/or 2023 True-Up PaymentYear 2 Earnout, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller Parties jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers Seller Parties in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of the Holdback Amount more than twelve (12) months after the Closing Date, unless mutually agreed upon by the parties, and on the first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount, less any pending claims to the Sellers. Once any pending claims are resolved in accordance with this Agreement, the then remaining Holdback Amount shall be paid to Sellers.

Holdback Amount. For any Loss for which Sellers shall present a calculation of the Sellers are obligated Pre-Opening Reduction Amount (as defined in Section 2.5(c) below), together with such supporting documentation as Buyer may reasonably request, at least two business days prior to indemnify the Buyer Indemnitees, the Buyer Indemnitees shall seek reimbursement for such Loss from the Holdback Amount firstClosing, and once the Holdback Amount is exhaustedClosing shall not take place until the parties have mutually agreed on such calculations, then subject to Section 2.5(d). Notwithstanding the Buyer Indemnitees may proceed foregoing, at least three business days prior to collect Closing, Sellers will deliver the unreimbursed amount Audited Financials (including the Audited Six Month Income Statement) to Buyer, together in each case with a calculation of such Loss: EBITDA based thereon, adjusted (a) solely in the case of any indemnification claim pursuant the Audited Financials) as follows: (i) plus (minus) increase (decrease) in deferred revenue liabilities (including initiation fees (net of associated deferred costs) and prepaid dues) from December 31, 1998 through June 30, 1999, (ii) plus (minus) increase (decrease) in deferred lease obligations from December 31, 1998 through June 30, 1999, and (iii) plus corporate cost allocations. If such EBITDA is less than EBITDA shown on the Interim Financial Statements, then the Purchase Price shall be reduced at Closing by an amount equal to Section 10.1(a) or fourteen times such difference (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of Manhattan Beach, seven times such difference), and if EBITDA based on the Audited Six Month Income Statement is more than EBITDA shown on the Interim Financial Statements, then the Purchase Price shall be increased at Closing by an amount equal to fourteen times such difference (in the case of Manhattan Beach, seven times such difference); provided that if any indemnification claim such increase or decrease would increase or decrease the Purchase Price by more than $4,000,000, either Seller or Buyer shall have the right to terminate this Agreement upon prompt notice to the other parties to this Agreement; provided further that Seller shall not have the right to terminate in the case of a decrease if Buyer agrees to limit the decrease in Purchase Price to $4,000,000 notwithstanding that the EBITDA adjustment would have resulted in a greater decrease; and provided further that Buyer shall not have the right to terminate in the case of an increase if Seller agrees to limit the increase in Purchase Price to $4,000,000 notwithstanding that the EBITDA adjustment would have resulted in a greater increase. In addition, Buyer shall have the right to terminate this Agreement within three business days following receipt of the Audited Financials if the shortfall (expressed as a positive number) between (i) EBITDA based on the 1998 Audited Income Statement (and adjusted in the same manner as the Audited Six Month Income Statement pursuant to the last sentence of the first paragraph of Section 10.1(a2.4(b)) and (ii) EBITDA based on the 1998 income statement included in the unaudited Year-End Financial Statements (using the same methodology) is more than the greater of (x) five percent (5%) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15y) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion 300% of the Holdback Amount more than twelve shortfall (12expressed as a positive number) months after the Closing Date, unless mutually agreed upon by the parties, and between EBITDA based on the first annual anniversary of this Agreement Buyer shall pay Audited Six Month Income Statement and EBITDA based on the remaining Holdback Amount, less any pending claims to the Sellers. Once any pending claims are resolved in accordance with this Agreement, the then remaining Holdback Amount shall be paid to SellersInterim Financial Statements.

Holdback Amount. For any Loss for which No later than the Sellers are obligated to indemnify third Business Day after the Buyer Indemnitees, the Buyer Indemnitees shall seek reimbursement for such Loss from the Holdback Amount first, and once the Holdback Amount date that is exhausted, then the Buyer Indemnitees may proceed to collect the unreimbursed amount of such Loss: (a) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), from any offset against any 2022 True-Up Payment, 2023 Accelerated True-Up Payment, and/or 2023 True-Up Payment, or (b) in the case of any indemnification claim pursuant to Section 10.1(a) or (b), the Seller jointly and severally, subject to the limitations set forth in this Agreement, which may be satisfied by payment (to be made within fifteen (15) days after the final determination of such Losses) of such amount of such Losses owed by the Sellers in immediately available funds to an account designated in writing by Buyer Indemnitees. The foregoing restrictions shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of a Buyer Indemnitee’s waiver, relinquishment or release of any applicable rights or otherwise). Buyer may not hold any portion of the Holdback Amount more than twelve (12) six months after the Closing Date, unless mutually agreed upon the Purchaser shall pay to the Seller by bank or wire transfer of immediately available funds to the account designated in writing by the partiesSeller at least one Business Day prior to such date, and on the first annual anniversary of this Agreement Buyer shall pay the remaining Holdback Amount, less any pending claims an amount in cash equal to the Sellers. Once any pending claims are resolved in accordance with this Agreement, the then remaining Holdback Amount less $1,000,000 less the aggregate amount of all unresolved claims for indemnification brought by the Purchaser Indemnified Parties in accordance with this ARTICLE IX, (b) 12 months after the Closing Date, the Purchaser shall pay to the Seller by bank or wire transfer of immediately available funds to the account designated in writing by the Seller at least one Business Day prior to such date, an amount in cash equal to the then remaining Holdback Amount less $500,000 less the aggregate amount of all unresolved claims for indemnification brought by the Purchaser Indemnified Parties in accordance with this ARTICLE IX, and (c) 18 months after the Closing Date, the Purchaser shall pay to the Seller by bank or wire transfer of immediately available funds to the account designated in writing by the Seller at least one Business Day prior to such date, an amount in cash equal to the then remaining Holdback Amount less the aggregate amount of all unresolved claims for indemnification brought by the Purchaser Indemnified Parties in accordance with this ARTICLE IX. No later than the third Business Day following the final resolution of any unresolved claim for which funds were so withheld by the Purchaser, any such funds not paid to Purchaser as a result of the resolution of such claims shall be paid by the Purchaser to Sellersthe Seller by bank or wire transfer of immediately available funds to the account designated in writing by the Seller at least one Business Day prior to such date.