Common use of Claims Against Escrow Amount Clause in Contracts

Claims Against Escrow Amount. (a) Pursuant to Section 2.2(b)(ii), on or prior to the 90th day following the Closing, Buyer shall pay to the Escrow Agent, in immediately available funds, for deposit into an account designated by the Escrow Agent (the “Escrow Account”), an amount equal to the Escrow Amount (such funds once deposited, and any interest or other earnings thereon, are referred to as the “Escrow Funds”). The Escrow Funds shall be held and distributed in accordance with the terms of this Agreement and the Escrow Agreement, which will be executed at Closing, by and among Buyer, Seller and the Escrow Agent. (b) The Escrow Funds shall be disbursed by the Escrow Agent as follows: (i) pursuant to Section 9.9(c) and Section 9.9(d) in accordance with written instructions that are jointly signed by Seller and Buyer, which instructions shall be in a form that complies with the requirements of the Escrow Agreement (a “Joint Instruction Letter”); or (ii) pursuant to a final non-appealable order, judgment, decision or decree by a court of competent jurisdiction specifying the amount of Escrow Funds to be released and the Person or Persons to whom such Escrow Funds shall be released. (c) The Parties agree to (i) on the date that is 6 months following the Closing Date (the “First Release Date”) (or first Business Day thereafter), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to one-third (1/3) of the Escrow Funds as of such date less the sum of (A) the amount which the Escrow Agent has either released to Buyer or the Escrow Agent has been validly instructed to release to Buyer in accordance with the Escrow Agreement but has not actually released as of the First Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the First Release Date; (ii) on the date that is 12 months following the Closing Date (the “Second Release Date”) (or first Business Day thereafter), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to one-half (1/2) of the Escrow Funds as of such date less the sum of (A) the amount which the Escrow Agent between the First Release Date and the Second Release Date has either released to Buyer or the Escrow Agent has been validly instructed to release to Buyer in accordance with the Escrow Agreement but has not actually released as of the Second Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the Second Release Date; and (iii) on the date that is 18 months following the Closing Date (the “Final Release Date”) (or first Business Day thereafter), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to the remainder of the Escrow Funds as of the Final Release Date less (A) the amount which the Escrow Agent has been validly instructed to release to Buyer in accordance with the Escrow Agreement but has not actually released as of the Final Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the Final Release Date. If it is subsequently and finally determined that all or a portion of any amount subject to release under this Section 9.9(c) that is withheld pursuant to clauses (i)(A), (i)(B), (ii)(A), (ii)(B), (iii)(A) or (iii)(B) of this Section 9.9(c) was not owed to Buyer pursuant to Article 9, within five (5) days after such determination, the Escrow Agent shall release such amount to Seller. Seller and Buyer shall execute and deliver to the Escrow Agent each Joint Instruction Letter contemplated by this Section 9.9 directing the Escrow Agent to release to Seller that portion of the Escrow Funds to which Seller is entitled pursuant to this Section 9.9. (d) In the event that Seller becomes obligated to Buyer under the terms of Article 9 in respect of any Losses (as determined by a final order, judgment or decision of a court of competent jurisdiction or by mutual written agreement between Buyer and Seller) and at such time there are remaining Escrow Funds in the Escrow Account, then Seller and Buyer shall execute and deliver a Joint Instruction Letter to the Escrow Agent directing the Escrow Agent to release to Buyer that portion of the Escrow Funds required to satisfy such obligation (to the extent the Escrow Funds then remaining in the Escrow Account are sufficient to satisfy such obligation). (e) Notwithstanding anything contained herein to the contrary and except for a Warranty Breach with respect to Fundamental Representation and Warranties and Fraud Claims, and subject to Buyer’s setoff rights pursuant to Section 2.4(h) of this Agreement, recovery against the Escrow Funds pursuant to this Section 9.9 constitutes the Buyer Indemnified Parties’ sole and exclusive remedy for any and all Losses relating to or arising from any Claim for a Warranty Breach that is subject to indemnification under Section 9.2(a). (f) In the event that any Party receives a release of a portion of the Escrow Funds pursuant to the Escrow Agreement to which it is not entitled pursuant to the terms of this Agreement, such Party shall, (i) if another Party is entitled to such portion of the Escrow Funds at that time, transfer such funds to such other Party, or (ii) if no other Party is entitled to such portion of the Escrow Funds at that time, deposit such funds with the Escrow Agent to be held and released pursuant to the Escrow Agreement. (g) If, either Seller or Buyer shall fail to timely execute and deliver a Joint Instruction Letter when required under this Agreement, Seller or Buyer, as applicable, shall be entitled to seek an order, judgment or decision from a court of competent jurisdiction to direct the Escrow Agent to release to the applicable Person or Persons the portion of the Escrow Funds to which they are entitled under this Agreement and to seek to recover losses and reasonable expenses from Seller or Buyer, as applicable, as a result of such failure to comply with this Agreement. (h) In the event of a conflict between the Escrow Agreement and this Agreement, this Agreement shall govern as between Buyer and Seller.

Claims Against Escrow Amount. (a) Pursuant to Section 2.2(b)(ii), on or prior to the 90th day following at the Closing, Buyer shall pay to the escrow agent named in the Escrow Agreement (the “Escrow Agent”), as escrow agent to Buyer and the Sellers, in immediately available funds, for deposit into an account designated by the Escrow Agent (the “Escrow Account”), an amount equal to the sum of the Escrow Amount (such funds once deposited, and any interest or other earnings thereon, are referred to as the “Escrow Funds”). (For clarity, the Holdback Amount will be held in the Escrow Account, but will be handled pursuant to Section 3.2(f).) The Escrow Funds shall be held and distributed in accordance with the terms of this Agreement and the Escrow Agreement, which will be executed at Closing, by and among Buyer, the Seller Representative and the Escrow Agent. (b) The Escrow Funds shall be disbursed by the Escrow Agent as follows: (i) pursuant to Section 9.9(c12.6(c) and Section 9.9(d12.6(d) in accordance with written instructions that are jointly signed by the Seller Representative and Buyer, which instructions shall be in a form that complies with the requirements of the Escrow Agreement (a “Joint Instruction Letter”); or; (ii) pursuant to Section 12.6(e) and Section 12.6(f), in accordance with written instructions that are signed by Buyer, which instructions shall be in a final non-appealable orderform that complies with the requirements of the Escrow Agreement (an “Nexeo Instruction Letter”); or (iii) pursuant to an award, judgment, decision or decree by a court of competent jurisdiction order rendered pursuant to Section 13.4 and/or the Escrow Agreement specifying the amount of Escrow Funds to be released and the Person or Persons to whom such Escrow Funds shall be released. (c) The Parties agree to On the fifteen (i15) on the date that is 6 months following month anniversary of the Closing Date (Date, the “First Release Date”) (or first Business Day thereafter), Seller Representative and Buyer shall execute and deliver to the Escrow Agent a Joint Instruction Letter, Letter instructing the Escrow Agent to disburse release to the Seller from the Escrow Account an amount equal to one-third (1/3) Representative a portion of the Escrow Funds as of such date less the sum of (A) the amount which the Escrow Agent has either released to Buyer or the Escrow Agent has been validly instructed to release to Buyer in accordance with the Escrow Agreement but has not actually released as of the First Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the First Release Date; (ii) on the date that is 12 months following the Closing Date (the “Second Release Date”) (or first Business Day thereafter), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to one-half Seven Million Dollars (1/2$7,000,000) less (i) any portion of the Escrow Funds as of such date less the sum of (A) the amount which already released by the Escrow Agent between the First Release Date and the Second Release Date has either (other than amounts released to Buyer or by the Escrow Agent has been validly instructed to release to Buyer in accordance with the Escrow Agreement but has not actually released as of the Second Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the Second Release Date; and (iii) on the date that is 18 months following the Closing Date (the “Final Release Date”) (or first Business Day thereafterSection 3.2(f)), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to the remainder (ii) any portion of the Escrow Funds as of then held by the Final Release Date less (A) the amount Escrow Agent which the Escrow Agent has been validly instructed to release to Buyer in accordance with the Escrow Agreement but has not actually released as of the Final Release Date plus such date and (Biii) the portion of the Escrow Funds with an aggregate value equal to a reasonable estimated amount, as reserve amount determined by the Seller Representative and Buyer in good faithfaith (or, to the extent the Seller Representative and Buyer are unable to agree, pursuant to the dispute resolution provisions contained in Section 13.4) in respect of any and all Claims submitted in good faith Claims for indemnification arising pursuant by Buyer prior to Article 9, and which have been presented to Seller such date in accordance with Article 9 and XII (so long as the facts or circumstances alleged to give rise to the claim for indemnification have been specified in reasonable detail) that remain unresolved or unpaid by Seller pending as of such date. For the Final Release Date. If it is subsequently avoidance of doubt, if such reasonable reserve amount as determined by the Seller Representative and finally determined that all Buyer (or a portion of any amount subject to release under this Section 9.9(c) that is withheld pursuant to clauses the dispute resolution provisions contained in Section 13.4) is greater than the amount of the Escrow Funds then held by the Escrow Agent, Buyer shall not be obligated to deliver such a Joint Instruction Letter releasing the Escrow Funds until the applicable Claims have been resolved. (i)(A), d) On the thirty-six (i)(B), (ii)(A), (ii)(B), (iii)(A36) or (iii)(B) month anniversary of this Section 9.9(c) was not owed to Buyer pursuant to Article 9, within five (5) days after such determinationthe Closing Date, the Escrow Agent shall release such amount to Seller. Seller Representative and Buyer shall execute and deliver to the Escrow Agent each a Joint Instruction Letter contemplated by this Section 9.9 directing instructing the Escrow Agent to release to the Seller that Representative the remainder of the Escrow Funds less (i) any portion of the Escrow Funds then held by the Escrow Agent which the Escrow Agent has been validly instructed to which release to Buyer in accordance with the Escrow Agreement but has not actually released as of such date and (ii) the portion of the Escrow Funds with an aggregate value equal to a reasonable reserve amount determined by the Seller is entitled Representative and Buyer in good faith (or, to the extent the Seller Representative and Buyer are unable to agree, pursuant to this the dispute resolution provisions contained in Section 9.9. (d13.4) In the event that Seller becomes obligated to Buyer under the terms of Article 9 in respect of any Losses and all Claims submitted in good faith by Buyer prior to such date in accordance with Article XII (so long as the facts or circumstances alleged to give rise to the claim for indemnification have been specified in reasonable detail) that remain pending as of such date. For the avoidance of doubt, if such reasonable reserve amount as determined by a final order, judgment the Seller Representative and Buyer (or decision pursuant to the dispute resolution provisions contained in Section 13.4) is greater than the amount of a court of competent jurisdiction or by mutual written agreement between Buyer and Seller) and at such time there are remaining the Escrow Funds in then held by the Escrow AccountAgent, then Seller and Buyer shall not be obligated to deliver such a Joint Instruction Letter releasing the Escrow Funds until the applicable Claims have been resolved. (e) From time to time following the incurrence of any Claim related to any Identified Matter, Buyer shall execute and deliver a Joint Instruction Letter to the Escrow Agent directing a Nexeo Instruction Letter (i) instructing the Escrow Agent to release to Buyer that portion of the Escrow Funds required in an amount equal to satisfy such obligation Claim (to the extent the Escrow Funds then remaining and in the Escrow Account are sufficient to satisfy such obligation). (e) Notwithstanding anything contained herein to the contrary and except for a Warranty Breach with respect to Fundamental Representation and Warranties and Fraud Claims, and subject to Buyer’s setoff rights pursuant to Section 2.4(h) of this Agreement, recovery against the Escrow Funds pursuant to this Section 9.9 constitutes the Buyer Indemnified Parties’ sole and exclusive remedy for any and all Losses relating to or arising from any Claim for a Warranty Breach that is subject to indemnification under Section 9.2(a). (f) In the event that any Party receives a release reserve of a portion of the Escrow Funds Fund was established pursuant to the Escrow Agreement to which it is not entitled pursuant to the terms of this AgreementSection 12.6(c) or Section 12.6(d), such Party shall, (iamount will be first applied against such reserve amount) if another Party is entitled to such portion of the Escrow Funds at that time, transfer such funds to such other Party, or and (ii) if no other Party certifying that such Claim is entitled to an Identified Matter. Upon receipt of such portion of the Escrow Funds at that time, deposit such funds with Nexeo Instruction Letter the Escrow Agent to be held and released pursuant to the shall release such amount of Escrow Agreement. (g) If, either Seller or Buyer shall fail to timely execute and deliver a Joint Funds as directed by such Nexeo Instruction Letter when required under this Agreement, without any further action being taken by Buyer or the Seller or Buyer, as applicable, shall be entitled to seek an order, judgment or decision from a court of competent jurisdiction to direct the Escrow Agent to release to the applicable Person or Persons the portion of the Escrow Funds to which they are entitled under this Agreement and to seek to recover losses and reasonable expenses from Seller or Buyer, as applicable, as a result of such failure to comply with this AgreementRepresentative. (h) In the event of a conflict between the Escrow Agreement and this Agreement, this Agreement shall govern as between Buyer and Seller.

Claims Against Escrow Amount. (a) Pursuant Subject to this Article V, any Claim for Indemnification by the Alpha Parties against the Nxxxxxxxxx Parties pursuant to Section 2.2(b)(ii), on or prior to the 90th day following the Closing, Buyer 5.2(a) shall pay to the Escrow Agent, in immediately available funds, for deposit into an account designated by the Escrow Agent (the “Escrow Account”), an amount equal be made solely with respect to the Escrow Amount (such funds once depositedexcept as otherwise provided by the last sentence of Section 5.2(c)), and any interest or other earnings thereonClaim for Indemnification by the Alpha Parties against the Nxxxxxxxxx Parties pursuant to Section 5.2(b) may, are referred in the Alpha Parties’ discretion, be made with respect to as the “Escrow Funds”)Amount, and in any case may be made at any time within the applicable survival period. The Escrow Funds Upon any Final Determination of a Claim for Indemnification against the Nxxxxxxxxx Parties, the Nxxxxxxxxx Parties shall be held and distributed have the option, for a period of 10 Business Days following such Final Determination, to pay the full amount of such Claim for Indemnification in accordance with cash to the terms of this Agreement Alpha Parties. If the Nxxxxxxxxx Parties have not paid such Claim for Indemnification in cash within such period, then the Nxxxxxxxxx Parties and the Alpha Parties shall provide joint written instructions to the Escrow AgreementAgent to pay to Alpha Natural Resources, Inc. the amount of such Claim for Indemnification as determined by such Final Determination by returning to Alpha Natural Resources, Inc. a whole number of Alpha Shares (rounded up or down to the nearest whole Alpha Share), which will be executed at when multiplied by the Closing Price as of the date of the Final Determination, equals the amount of such Claim for Indemnification as determined by such Final Determination. If there are no pending claims after the second anniversary of the Closing, by and among Buyer, Seller and the remaining balance of the Escrow Agent. (b) The Escrow Funds shall Amount will be disbursed by the Escrow Agent as follows: (i) pursuant to Section 9.9(c) and Section 9.9(d) in accordance with joint written instructions that are jointly signed by Seller and Buyer, which instructions shall be in a form that complies with the requirements of the Escrow Agreement (a “Joint Instruction Letter”); or (ii) pursuant to a final non-appealable order, judgment, decision or decree by a court of competent jurisdiction specifying the amount of Escrow Funds to be released Nxxxxxxxxx Parties and the Person or Persons to whom such Escrow Funds shall be released. (cAlpha Parties) The Parties agree to (i) on the date that is 6 months following the Closing Date (the “First Release Date”) (or first Business Day thereafter), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to one-third (1/3) of the Escrow Funds as of such date less the sum of (A) the amount which the Escrow Agent has either released to Buyer or the Escrow Agent has been validly instructed to release to Buyer Nxxxxxxxxx Parties in accordance with the Escrow Agreement but has not actually released Agreement; provided, however, that in the event that there are any pending Claims for Indemnification after the second anniversary of the Closing: (i) there shall be retained in escrow a whole number of Alpha Shares (rounded up or down to the nearest whole Alpha Share), which when multiplied by the Closing Price as of such date, equals the First Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, amount of any good faith such pending Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the First Release DateIndemnification; (ii) on the date that is 12 months following the Closing Date (the “Second Release Date”) (or first Business Day thereafter), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to one-half (1/2) remaining balance of the Escrow Funds as of Amount after such date less the sum of (A) the amount which the retention will be so disbursed by Escrow Agent between (pursuant to joint written instructions by the First Release Date Nxxxxxxxxx Parties and the Second Release Date has either released Alpha Parties) to Buyer or the Escrow Agent has been validly instructed to release to Buyer Nxxxxxxxxx Parties in accordance with the Escrow Agreement but has not actually released as of the Second Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the Second Release DateAgreement; and (iii) on as each such Claim for Indemnification is resolved by a Final Determination, any amount retained with respect thereto that remains in escrow after such resolution will be disbursed by Escrow Agent (pursuant to joint written instructions by the date that is 18 months following Nxxxxxxxxx Parties and the Closing Date (the “Final Release Date”Alpha Parties) (or first Business Day thereafter), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to the remainder of the Escrow Funds as of the Final Release Date less (A) the amount which the Escrow Agent has been validly instructed to release to Buyer Nxxxxxxxxx Parties in accordance with the Escrow Agreement but has not actually released as of the Final Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the Final Release Date. If it is subsequently and finally determined that all or a portion of any amount subject to release under this Section 9.9(c) that is withheld pursuant to clauses (i)(A), (i)(B), (ii)(A), (ii)(B), (iii)(A) or (iii)(B) of this Section 9.9(c) was not owed to Buyer pursuant to Article 9, within five (5) days after such determination, the Escrow Agent shall release such amount to Seller. Seller and Buyer shall execute and deliver to the Escrow Agent each Joint Instruction Letter contemplated by this Section 9.9 directing the Escrow Agent to release to Seller that portion of the Escrow Funds to which Seller is entitled pursuant to this Section 9.9. (d) In the event that Seller becomes obligated to Buyer under the terms of Article 9 in respect of any Losses (as determined by a final order, judgment or decision of a court of competent jurisdiction or by mutual written agreement between Buyer and Seller) and at such time there are remaining Escrow Funds in the Escrow Account, then Seller and Buyer shall execute and deliver a Joint Instruction Letter to the Escrow Agent directing the Escrow Agent to release to Buyer that portion of the Escrow Funds required to satisfy such obligation (to the extent the Escrow Funds then remaining in the Escrow Account are sufficient to satisfy such obligation). (e) Notwithstanding anything contained herein to the contrary and except for a Warranty Breach with respect to Fundamental Representation and Warranties and Fraud Claims, and subject to Buyer’s setoff rights pursuant to Section 2.4(h) of this Agreement, recovery against the Escrow Funds pursuant to this Section 9.9 constitutes the Buyer Indemnified Parties’ sole and exclusive remedy for any and all Losses relating to or arising from any Claim for a Warranty Breach that is subject to indemnification under Section 9.2(a). (f) In the event that any Party receives a release of a portion of the Escrow Funds pursuant to the Escrow Agreement to which it is not entitled pursuant to the terms of this Agreement, such Party shall, (i) if another Party is entitled to such portion of the Escrow Funds at that time, transfer such funds to such other Party, or (ii) if no other Party is entitled to such portion of the Escrow Funds at that time, deposit such funds with the Escrow Agent to be held and released pursuant to the Escrow Agreement. (g) If, either Seller or Buyer shall fail to timely execute and deliver a Joint Instruction Letter when required under this Agreement, Seller or Buyer, as applicable, shall be entitled to seek an order, judgment or decision from a court of competent jurisdiction to direct the Escrow Agent to release to the applicable Person or Persons the portion of the Escrow Funds to which they are entitled under this Agreement and to seek to recover losses and reasonable expenses from Seller or Buyer, as applicable, as a result of such failure to comply with this Agreement. (h) In the event of a conflict between the Escrow Agreement and this Agreement, this Agreement shall govern as between Buyer and Seller.

Claims Against Escrow Amount. (a) Pursuant to Section 2.2(b)(ii), on or prior to the 90th day following the Closing, Buyer shall pay give written notice to Seller and Escrow Agent of any claim by Buyer for indemnification during the Escrow AgentPeriod (a “Claim”). The Claim shall specify with reasonable detail the factual basis for such Claim including the amount claimed to be due to Buyer. Within three (3) business days of receipt of such Claim, in immediately available funds, for deposit into an account designated by the Escrow Agent shall give Seller and Buyer notice of receipt of such Claim (a “Notice of Receipt of Claim”). Seller shall have twenty (20) days from receipt of a Notice of Receipt of Claim (the “Investigation Period”) to make such investigation of the Claim as Seller deems necessary or desirable. For the purposes of such investigation, Buyer agrees to make available to Seller and its authorized representatives copies of any and all documents containing the information relied upon by Buyer to substantiate such Claim. If Buyer and Seller agree at any time as to the validity and undisputed amount of such Claim they shall provide the Escrow Agent with written instructions for disbursement of the agreed upon amount of the Claim from the escrow account established in accordance with Section 3.1(b) (the “Escrow Account”), an amount equal . If Seller fails to the Escrow Amount (such funds once deposited, and any interest or other earnings thereon, are referred to as the “Escrow Funds”). The Escrow Funds shall be held and distributed in accordance with the terms send a notice of this Agreement and the Escrow Agreement, which will be executed at Closing, by and among Buyer, Seller and the Escrow Agent. (b) The Escrow Funds shall be disbursed by the Escrow Agent as follows: (i) pursuant to Section 9.9(c) and Section 9.9(d) in accordance with written instructions that are jointly signed by Seller and Buyer, which instructions shall be in a form that complies with the requirements of the Escrow Agreement (a “Joint Instruction Letter”); or (ii) pursuant to a final non-appealable order, judgment, decision or decree by a court of competent jurisdiction specifying the amount of Escrow Funds to be released and the Person or Persons to whom such Escrow Funds shall be released. (c) The Parties agree to (i) on the date that is 6 months following the Closing Date (the “First Release Date”) (or first Business Day thereafter), execute and deliver objection to the Escrow Agent and Buyer objecting to the Claim (a Joint Instruction Letter, instructing “Notice of Objection”) prior to the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to one-third (1/3) expiration of the Escrow Funds as of such date less the sum of (A) the amount which the Escrow Agent has either released to Buyer or the Escrow Agent has been validly instructed to release to Buyer in accordance with the Escrow Agreement but has not actually released as of the First Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the First Release Date; (ii) on the date that is 12 months following the Closing Date (the “Second Release Date”) (or first Business Day thereafter), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to one-half (1/2) of the Escrow Funds as of such date less the sum of (A) the amount which the Escrow Agent between the First Release Date and the Second Release Date has either released to Buyer or the Escrow Agent has been validly instructed to release to Buyer in accordance with the Escrow Agreement but has not actually released as of the Second Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the Second Release Date; and (iii) on the date that is 18 months following the Closing Date (the “Final Release Date”) (or first Business Day thereafter), execute and deliver to the Escrow Agent a Joint Instruction Letter, instructing the Escrow Agent to disburse to Seller from the Escrow Account an amount equal to the remainder of the Escrow Funds as of the Final Release Date less (A) the amount which the Escrow Agent has been validly instructed to release to Buyer in accordance with the Escrow Agreement but has not actually released as of the Final Release Date plus (B) the reasonable estimated amount, as determined by Buyer in good faith, of any good faith Claims for indemnification arising pursuant to Article 9, and which have been presented to Seller in accordance with Article 9 and remain unresolved or unpaid by Seller as of the Final Release Date. If it is subsequently and finally determined that all or a portion of any amount subject to release under this Section 9.9(c) that is withheld pursuant to clauses (i)(A), (i)(B), (ii)(A), (ii)(B), (iii)(A) or (iii)(B) of this Section 9.9(c) was not owed to Buyer pursuant to Article 9, within five (5) days after such determinationInvestigation Period, the Escrow Agent shall release pay Buyer the full amount of the Claim from the Escrow Account. The failure of Seller to deliver a timely Notice of Objection objecting to a Claim shall be conclusive evidence of the validity of such amount to SellerClaim and shall forever bar Seller from contesting such Claim. If Seller sends a Notice of Objection in a timely manner and Buyer and Seller fail to agree as to the validity and/or amount of any Claim, Buyer and Seller shall execute resolve such dispute or disputes by binding arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The determination or award rendered therein shall be binding and deliver to conclusive upon Buyer and Seller, and any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Within three (3) business days following the expiration of the Escrow Period, the Escrow Agent each Joint Instruction Letter contemplated by this Section 9.9 directing the Escrow Agent to shall send a release to notice notifying Buyer and Seller that portion of the Escrow Funds it will pay, by wire transfer to which Seller is entitled pursuant to this Section 9.9. (d) In the event that Seller becomes obligated to Buyer under the terms of Article 9 in respect of any Losses (as determined an account designated by a final orderSeller, judgment or decision of a court of competent jurisdiction or by mutual written agreement between Buyer and Seller) and at such time there are remaining Escrow Funds in the Escrow Account, then Seller and Buyer shall execute and deliver a Joint Instruction Letter to the Escrow Agent directing the Escrow Agent to release to Buyer that portion of the Escrow Funds required to satisfy such obligation (to the extent the Escrow Funds then remaining in the Escrow Account are sufficient to satisfy such obligation). (e) Notwithstanding anything contained herein to the contrary and except for a Warranty Breach with respect to Fundamental Representation and Warranties and Fraud Claims, and subject to Buyer’s setoff rights pursuant to Section 2.4(h) of this Agreement, recovery against the Escrow Funds pursuant to this Section 9.9 constitutes the Buyer Indemnified Parties’ sole and exclusive remedy for any and all Losses relating to or arising from any Claim for a Warranty Breach that is subject to indemnification under Section 9.2(a). (f) In the event that any Party receives a release of a portion of the Escrow Funds pursuant to the Escrow Agreement to which it is not entitled pursuant to the terms of this Agreement, such Party shall, (i) if another Party is entitled to such portion of the Escrow Funds at that time, transfer such funds to such other Party, or (ii) if no other Party is entitled to such portion of the Escrow Funds at that time, deposit such funds with the Escrow Agent to be held and released pursuant to the Escrow Agreement. (g) If, either Seller or Buyer shall fail to timely execute and deliver a Joint Instruction Letter when required under this Agreement, Seller or Buyer, as applicable, shall be entitled to seek an order, judgment or decision from a court of competent jurisdiction to direct the Escrow Agent to release to the applicable Person or Persons the portion of the Escrow Funds Account that remains and is undisputed (the “Release Notice”). The Release Notice shall specify the amount on deposit in the Escrow Account and the amount that remains undisputed. If Buyer fails to which they are entitled under this Agreement send a notice within three (3) business days after receipt of the Release Notice to the Escrow Agent and Seller objecting to seek the Release Notice (a “Release Notice Objection”), the Escrow Agent shall pay Seller the undisputed amount. If Buyer sends a timely Release Notice Objection specifying the amount proposed to recover losses be paid to Seller that Buyer objects to being paid out to Seller, such amount shall not be paid out to Seller and reasonable expenses from shall continue to be held by the Escrow Agent. Any portion of the Escrow Account thereafter remaining in escrow shall be paid out in accordance with the written directions of Buyer and Seller or Buyerin accordance with a final, as applicablenon-appealable judgment, as a result of such failure to comply with this Agreement. (h) In the event order or decree of a conflict between the Escrow Agreement and this Agreement, this Agreement shall govern as between Buyer and Sellercourt or an arbitration award.