Common use of Disbursement of Escrow Account Clause in Contracts

Disbursement of Escrow Account. (a) Subject to paragraphs (b), (c) and (d) below, the Escrow Agent is hereby authorized and directed to disburse to the Sellers all of the funds in the sub-Escrow Accounts, plus the income or interest earned thereon, if any, less an amount equal to the aggregate amount of Outstanding Claim Amounts, on [two years from closing date], 2012 (the “Escrow Release Date”) pursuant to written instructions from Sellers’ Representative which may be in the form of an excel spreadsheet (in a format acceptable to the Escrow Agent) that shall include each Seller’s name, address, taxpayer identification number, payment instruction and payment amount that indicates the disbursement amount for each Seller from each sub-Escrow Account. Disbursements pursuant to this Section 3 shall be made promptly (and in any event within five (5) business days) following the Escrow Release Date. For purposes of this Agreement, an “Outstanding Claim Amount” means the aggregate amount of Damages (as defined in the applicable Purchase Agreement under which such Claim is being sought) which is set forth in a Claim (as defined below) delivered to the Escrow Agent and the Sellers’ Representative prior to the Escrow Release Date and with respect to which and to the extent that it remains unresolved and no distribution has been made prior to the Escrow Release Date pursuant to this Section 3. Outstanding Claim Amounts shall be distributed to the Sellers and/or to Buyer, as is appropriate, upon the final resolution of such Outstanding Claim Amounts (notwithstanding that such final resolution shall not have occurred until after the Escrow Release Date) as evidenced by (A) joint written instructions from the Sellers’ Representative and Buyer as to the disposition of the Outstanding Claim Amount or (B) an order of a court having jurisdiction over the matter which is final and not subject to further court proceedings or appeal (which shall also be sent to Buyer and Sellers’ Representative, as applicable, by the party providing such final, nonappealable order to the Escrow Agent); provided, however, that any Outstanding Claim Amounts which may be finally resolved in favor of the Sellers prior to the Escrow Release Date shall not give rise to any distribution to the Sellers or the Sellers’ Representative prior to the Escrow Release Date. Upon receipt of any such instructions or order, the Escrow Agent shall disburse an amount of funds equal to the Outstanding Claim Amount in accordance therewith, provided that the Escrow Agent shall at all times hold funds in the applicable sub-Escrow Account which are sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against such sub-Escrow Account, or if the amount of funds is not then sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against the applicable sub-Escrow Account, the entire balance of such sub-Escrow Account.

Disbursement of Escrow Account. (a) Subject If Buyer Parent seeks payment from the Escrow Amount on account of the indemnification obligations of Seller to paragraphs Buyer under Article VI of the Purchase Agreement, Buyer Parent shall deliver a written notice (a “Buyer Parent Claim Notice”) to the Escrow Agent, with a copy to Seller, stating (i) in reasonable detail the basis for its claim for payment and (ii) the amount of such claim. (b), ) Within three (c3) and (d) belowbusiness days of receipt of the Buyer Parent Claim Notice, the Escrow Agent is hereby authorized and directed to disburse to shall notify the Sellers all Seller of receipt of the funds in Buyer Parent Claim Notice, enclosing a copy of such Buyer Parent Claim Notice. If within thirty (30) calendar days (any such period after the sub-Escrow Accounts, plus the income or interest earned thereon, if any, less an amount equal to the aggregate amount deemed receipt of Outstanding a Buyer Parent Claim Amounts, on [two years from closing date], 2012 (the “Escrow Release Date”) pursuant to written instructions from Sellers’ Representative which may be in the form of an excel spreadsheet (in a format acceptable to Notice by the Escrow Agent, an “Objection Period”) that after the deemed receipt of the Buyer Parent Claim Notice by Seller, the Escrow Agent has not received a written statement (any such statement disputing a Buyer Parent Claim Notice, an “Objection Notice”) from Seller disputing Buyer Parent’s right to indemnification (or disputing any portion of the claims in Buyer Parents Claim Notice), the Escrow Agent shall include each Seller’s namepromptly, address, taxpayer identification number, payment instruction and payment amount that indicates the disbursement amount for each Seller from each sub-Escrow Account. Disbursements pursuant to this Section 3 shall be made promptly (and in any event within five three (53) business days) following , pay to Buyer Parent out of the Escrow Release Date. For purposes of this Agreement, an “Outstanding Claim Amount” means Amount the aggregate amount of Damages (as defined specified in the applicable Purchase Agreement under which such Buyer Parent Claim is being soughtNotice. (c) which is set forth in a Claim (as defined below) delivered If, during the Objection Period, Seller objects to the Escrow Agent and the Sellers’ Representative prior to the Escrow Release Date and with respect to which and to the extent that it remains unresolved and no distribution has been made prior to the Escrow Release Date pursuant to this Section 3. Outstanding Buyer Parent Claim Amounts Notice as aforesaid, Seller shall be distributed to the Sellers and/or to Buyer, as is appropriate, upon the final resolution of such Outstanding Claim Amounts (notwithstanding that such final resolution shall not have occurred until after the Escrow Release Date) as evidenced by (A) joint written instructions from the Sellers’ Representative and Buyer as to the disposition of the Outstanding Claim Amount or (B) send an order of a court having jurisdiction over the matter which is final and not subject to further court proceedings or appeal (which shall also be sent to Buyer and Sellers’ Representative, as applicable, by the party providing such final, nonappealable order Objection Notice to the Escrow Agent); provided, howeverwith a copy to Buyer Parent, that any Outstanding Claim Amounts which may be finally resolved stating in favor reasonable detail the basis for Seller’s objection and the amount of the Sellers prior to claim in the Escrow Release Date shall not give rise to any distribution to the Sellers or the Sellers’ Representative prior to the Escrow Release DateBuyer Parent Claim Notice that it disputes. Upon receipt of any the Seller’s Objection Notice, the Escrow Agent shall retain the amount of the Buyer Parent Claim Notice subject to dispute, and shall, in its sole discretion, (x) continue to hold such amount pending receipt of joint instructions from Buyer Parent and Seller or ordera final, non-appealable judgment of a court of competent jurisdiction or (y) deposit such Escrow Amount with a court of competent jurisdiction. Following such time as the Escrow Agent has deposited the disputed amount with a court of competent jurisdiction as provided in this Section, the Escrow Agent shall have no further obligations or responsibilities under this Escrow Agreement, with respect to the portion of the Escrow Amount deposited with such court. (d) Within three (3) business days of March 15, 2010, the Escrow Agent shall disburse to Seller any remaining balance of the Escrow Amount (the “Seller Escrow Balance”), less any amount that is subject to a pending Buyer Parent Claim Notice as to which an Objection Notice has been timely received or as to which the Objection Period has not lapsed, which amount shall continue to be held by the Escrow Agent pursuant to this Agreement, and less any amount that is subject to a pending Buyer Parent Claim Notice as to which an Objection Notice has not been timely received and with respect to which the Objection Period has lapsed, which amount shall be paid to Buyer Parent. Following such time as the Escrow Agent has disbursed the full remaining amount of funds equal the Seller Escrow Balance, the Escrow Agent shall have no further obligations or responsibilities, with respect to the Outstanding Claim Amount in accordance therewithEscrow Amount, provided under this Escrow Agreement. (e) In the event that the Escrow Agent shall at all times hold funds in commence any proceeding to deposit an Escrowed Amount with a court of competent jurisdiction, Buyer Parent and Seller hereby agree to submit to the applicable sub-Escrow Account which are sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against such sub-Escrow Account, or if the amount of funds is not then sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against the applicable sub-Escrow Account, the entire balance personal jurisdiction of such sub-Escrow Accountcourt and waive any and all rights to contests the jurisdiction of said court.

Disbursement of Escrow Account. (a) Subject to paragraphs (b), (c) The Escrow Account shall be held and (d) below, the Escrow Agent is hereby authorized and directed to disburse to the Sellers all of the funds in the sub-Escrow Accounts, plus the income or interest earned thereon, if any, less an amount equal to the aggregate amount of Outstanding Claim Amounts, on [two years from closing date], 2012 (the “Escrow Release Date”) pursuant to written instructions from Sellers’ Representative which may be in the form of an excel spreadsheet (in a format acceptable to disbursed by the Escrow Agent) that shall include each Seller’s name, address, taxpayer identification number, payment instruction and payment amount that indicates the disbursement amount for each Seller from each sub-Escrow Account. Disbursements pursuant to this Section 3 shall be made promptly (and in any event within five (5) business days) following the Escrow Release Date. For purposes of this Agreement, an “Outstanding Claim Amount” means the aggregate amount of Damages (as defined in the applicable Purchase Agreement under which such Claim is being sought) which is set forth in a Claim (as defined below) delivered to the Escrow Agent and the Sellers’ Representative prior to the Escrow Release Date and with respect to which and to the extent that it remains unresolved and no distribution has been made prior to the Escrow Release Date pursuant to this Section 3. Outstanding Claim Amounts shall be distributed to the Sellers and/or to Buyer, as is appropriate, upon the final resolution of such Outstanding Claim Amounts (notwithstanding that such final resolution shall not have occurred until after the Escrow Release Date) as evidenced by (A) joint written instructions from the Sellers’ Representative and Buyer as to the disposition of the Outstanding Claim Amount or (B) an order of a court having jurisdiction over the matter which is final and not subject to further court proceedings or appeal (which shall also be sent to Buyer and Sellers’ Representative, as applicable, by the party providing such final, nonappealable order to the Escrow Agent); provided, however, that any Outstanding Claim Amounts which may be finally resolved in favor of the Sellers prior to the Escrow Release Date shall not give rise to any distribution to the Sellers or the Sellers’ Representative prior to the Escrow Release Date. Upon receipt of any such instructions or order, the Escrow Agent shall not disburse an amount any Escrow Funds from the Escrow Account unless and until the Escrow Agent has received written instruction, signed by the Collateral Agent, to do so. Disbursements from the Escrow Account by the Escrow Agent hereunder may be made by bank certified, cashier’s or Escrow Agent’s trust account check or by wire transfer. Rights and Limitations upon Duties of funds equal Escrow Agent. The Escrow Agent shall not be responsible for the identity, authority or rights of any person, firm or corporation executing or delivering or purporting to execute or deliver this Agreement or any document or instrument deposited hereunder or any endorsement thereon or assignment thereof. The Escrow Agent acts hereunder as a depository only and shall not be responsible or liable in any manner whatsoever for the Outstanding Claim Amount genuineness, sufficiency, correctness, or validity of any agreement, document, certificate, instrument, or item deposited with it or any notice, consent, approval, direction, or instruction given to it, and the Escrow Agent shall be fully protected, under Sections 3(c) and 3(e) below, for all acts taken in accordance therewithwith any written instruction, final order or instrument given to it hereunder, and reasonably believed by the Escrow Agent to be genuine and what it purports to be. It is understood and agreed that the duties of the Escrow Agent hereunder are purely ministerial in nature and that the Escrow Agent shall not be liable for any error of judgment, fact, or law, or any act done or omitted to be done, except for its own willful misconduct or gross negligence or that of its partners, employees, and agents. The Escrow Agent’s determination as to whether an event or condition has occurred, or been met or satisfied, or as to whether a provision of this Agreement has been complied with, or as to whether sufficient evidence of the event or condition or compliance with the provision has been furnished to it, shall not subject the Escrow Agent to any claim, liability, or obligation whatsoever, even if it shall be found that such determination was improper and incorrect; provided that the Escrow Agent and its partners, employees, and agents shall at not have been guilty of willful misconduct or gross negligence in making such determination. In the event any property held by the Escrow Agent hereunder shall be attached, garnished or levied upon under any court order, or if the delivery of such property shall be stayed or enjoined by any court order, or if any court order, judgment or decree shall be made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and comply with all times writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, orders, judgments or decrees, it shall not be liable to any of the parties hereto or to any other person, firm, corporation or other entity, by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated. Lenders each jointly and severally agree to indemnify the Escrow Agent for, and to hold funds it harmless against, any loss, liability, or expense (“Costs”) incurred without gross negligence or willful misconduct 20 on the part of the Escrow Agent, arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder, including costs and expenses of defending itself against any claim of liability in connection herewith or therewith other than in connection with a finding of gross negligence or willful misconduct. The right to indemnification set forth in the applicable sub-preceding sentence shall include the right to be paid by Lenders in respect of Costs as they are incurred (including Costs incurred in connection with defending itself against any claim of liability in connection herewith), provided that upon a determination of gross negligence or willful misconduct, the Escrow Account which are sufficient Agent will promptly reimburse the Lenders for any Costs previously paid or advanced by the Lenders. The Escrow Agent shall not be required to cover take any action under this Agreement if the aggregate amount of all then Outstanding Claim Amounts held against Escrow Agent shall reasonably determine, or shall have been advised by counsel, that such sub-action is likely to result in personal liability, or is contrary to the terms hereof, or otherwise contrary to law. If at any time the Escrow Agent shall receive conflicting notices, claims, demands, or instructions with respect to the Escrow Account, or if for any other reason it shall in good faith be unable to determine the amount party or parties entitled to receive any of funds is not then sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against the applicable sub-Escrow Account, or any part thereof, the entire Escrow Agent may refuse to make any distribution or payment and may retain the Escrow Account in its possession until it shall have received instructions in writing concurred in by all parties in interest, or until directed by a final order or judgment of a court of competent jurisdiction from which no appeal is or can be taken, whereupon the Escrow Agent shall make such disposition in accordance with such instructions or such order. Alternatively, the Escrow Agent may proceeds under Section 8.4. The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected and indemnified under Sections 3(c) and 3(e) above for all acts taken, in the absence of gross negligence or willful misconduct, in accordance with the opinion and instructions of such counsel, and the costs of such counsel shall be subject to reimbursement under Section 3(e) above. The Escrow Agent may resign at any time upon giving the other parties hereto thirty (30) days notice to that effect. In that event the successor escrow agent shall be such person, firm, corporation or other entity as Lenders shall mutually select. It is understood and agreed that the Escrow Agent’s resignation shall not be effective until a successor escrow agent agrees to act hereunder; provided, however, that in the event no successor escrow agent is appointed and acting hereunder within thirty (30) days of such notice, the Escrow Agent may pay and deliver the Escrow Account into a court of competent jurisdiction; and provided, further, that the Escrow Agent may appoint a successor escrow agent hereunder at any time so long as such successor shall accept and agree to be bound by the terms of this Agreement (except that any such successor escrow agent shall be entitled to customary fees payable as provided herein) and shall be a bank or trust company insured by the Federal Deposit Insurance Corporation and shall be reasonably acceptable to the Required Lenders. No person, firm, corporation or other entity will be recognized by the Escrow Agent as a successor or assignee of Lenders until there shall be presented to the Escrow Agent evidence satisfactory to it of such succession or assignment. Interpleader Action. In the event of any disagreement between the Lenders about the interpretation of this Agreement, or about the rights and obligations or the propriety of any action contemplated by the Escrow Agent hereunder or upon the resignation of the Escrow Agent and the failure of the parties hereto to timely engage a successor, the Escrow Agent may, at its sole but reasonable discretion, file an action or xxxx in interpleader in any court of competent jurisdiction to determine the rights of the parties hereto and deposit the balance of the Escrow Account with such sub-court. The Escrow AccountAgent shall be indemnified by the parties hereto, jointly and severally, for all costs, including reasonable attorney’s fees, in connection with the aforesaid interpleader action.

Disbursement of Escrow Account. (a) Subject The Escrow Agent shall distribute funds from the Escrow Account to paragraphs the Company and notify the Custodian to release the Custody Amount to the Company to satisfy the Second Closing Note Payments (bprovided, however, that all interest or other investment income earned on the Escrow Amount shall be remitted on a pro-rata basis to the Subscribers who deposited portions of the Escrow Account based on their initial deposit of Escrow Amount pursuant to Section 3(b) hereof), on the date which is the earliest of: (ci) the date of the Escrow Agent’s receipt of opinions of counsel to the Company for each of clause (A) and (dB) below, certified by the Chief Executive Officer of the Company in a written certificate directing the disposition of all or a portion of the Escrow Agent is hereby authorized Amounts and directed to disburse Custody Amount to the Sellers all Company; (A) An opinion of counsel to the Company that the Company has validly accepted for purchase the number of issued and outstanding shares of Preferred Stock of the funds Company sufficient in number, percentages of respective classes of preferred stock and purchase price to satisfy the sub-Escrow Accounts, plus the income or interest earned thereon, if any, less an amount equal condition precedent to the aggregate amount Second Closing set forth in Section 6.2(ii) of Outstanding Claim Amountsthe Purchase Agreement, on [two years from closing date], 2012 but for payment of the Tender Offer Cash Payment (as such condition may have at that time been amended with the “Escrow Release Date”) consent of the Majority Participants pursuant to written instructions from Sellers’ Representative which may be the terms of the Purchase Agreement); and (B) An opinion of Maryland counsel to the Company that the holders of record of shares of capital stock of the Company have approved an amendment or amendments to the Articles by June 15, 2008 (or such later date consented to in writing by the form Majority Participants pursuant to the terms of an excel spreadsheet the Purchase Agreement but not later than June 30, 2008) to increase the number of authorized shares of Common Stock of the Company to at least 4,000,000,000 shares of Common Stock and the increase in authorized shares of capital stock of the Company is effective. (in a format acceptable to ii) the date of the Escrow Agent) that shall include each Seller’s name, address, taxpayer identification number, payment instruction and payment amount that indicates the disbursement amount for each Seller from each sub-Escrow Account. Disbursements pursuant to this Section 3 shall be made promptly (and in any event within five (5) business days) following the Escrow Release Date. For purposes receipt of this Agreement, an “Outstanding Claim Amount” means the aggregate amount of Damages (as defined in the applicable Purchase Agreement under which such Claim is being sought) which is set forth in a Claim (as defined below) delivered to the Escrow Agent and the Sellers’ Representative prior to the Escrow Release Date and with respect to which and to the extent that it remains unresolved and no distribution has been made prior to the Escrow Release Date pursuant to this Section 3. Outstanding Claim Amounts shall be distributed to the Sellers and/or to Buyer, as is appropriate, upon the final resolution of such Outstanding Claim Amounts (notwithstanding that such final resolution shall not have occurred until after the Escrow Release Date) as evidenced by (A) joint written instructions from the Sellers’ Representative Company and Buyer as to each of the Subscribers directing the disposition of the Outstanding Claim Amount Escrow Amounts; or (iii) the date of the Escrow Agent’s receipt of a final, non-appealable judgment, order or (B) an order ruling of a court having jurisdiction over or other governmental authority directing the matter which is final and not subject to further court proceedings or appeal (which shall also be sent to Buyer and Sellers’ Representative, as applicable, by the party providing such final, nonappealable order to disposition of the Escrow Agent)Amounts; provided, however, that any Outstanding Claim (A) if none of clauses (i) through (iii) of this Section 3(a) have been satisfied or (B) if Escrow Amounts which may remain in the Escrow Account following a distribution or distributions pursuant to clauses (i) through (iii), on June 30, 2008, then the respective Escrow Amounts from the Escrow Account shall be finally resolved in favor of distributed by the Sellers prior Escrow Agent to the Subscribers on a pro-rata basis based on their initial deposit of Escrow Release Date shall not give rise to any Amount. Upon distribution of funds from the Escrow Account to the Sellers or the Sellers’ Representative prior to the Escrow Release Date. Upon receipt of any such instructions or orderCompany in accordance with Section III(a) hereof, the Escrow Agent shall disburse an promptly provide notice of such distribution to the Custodian in writing at the address specified to the Escrow Agent. It is further understood and agreed that, unless and until funds are distributed to the Company in strict accordance with this Agreement, no amount of funds equal the Escrow Account or the Custody Amount shall be considered assets of the Company. (b) Notwithstanding the foregoing, all interest and investment earnings on the Escrow Account as of each calendar month, shall be paid on a pro-rata basis to the Outstanding Claim Subscribers based on their initial deposit of Escrow Amount as soon as reasonably practicable following the end of the related calendar month. (c) Following the release and distribution of all the Escrow Amounts in accordance therewithwith the provisions of Section 3 hereof, provided this Agreement shall terminate and be of no further force or effect except for the provisions of Section 4 hereof, which shall survive such termination. (d) Notwithstanding anything contained herein to the contrary, in the event funds transfer instructions are given, whether in writing, by telecopier or otherwise, Escrow Agent is authorized (but not required) to seek confirmation of such instructions by telephone call-back, and the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons designated in the instructions. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. The parties to this Escrow Agreement acknowledge that such security procedure is commercially reasonable. Escrow Agent may disburse the Escrow Account pursuant to this Section III, either by wire transfer or certified or bank check in accordance with the wire instructions or contact information set forth in the Subscribers’ respective signature pages, at the sole discretion of the Escrow Agent. It is understood, however, that the Escrow Agent shall at all times hold may disburse any funds in the applicable sub-Escrow Account which without any separate instructions, if such disbursements are sufficient to cover in accordance with the aggregate amount terms of all then Outstanding Claim Amounts held against such sub-this Escrow Account, or if the amount of funds is not then sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against the applicable sub-Escrow Account, the entire balance of such sub-Escrow AccountAgreement.

Disbursement of Escrow Account. (a) Subject to paragraphs (b), (c) and (d) below, On the Business Day after receipt of the Escrow Agent is hereby authorized and directed to disburse to the Sellers all of the funds in the sub-Escrow Accounts, plus the income or interest earned thereon, if any, less an amount equal to the aggregate amount of Outstanding Claim Amounts, on [two years from closing date], 2012 (the “Escrow Release Date”) pursuant to written instructions from Sellers’ Representative which may be in the form of an excel spreadsheet (in a format acceptable to the Escrow Agent) that shall include each Seller’s name, address, taxpayer identification number, payment instruction and payment amount that indicates the disbursement amount for each Seller from each sub-Escrow Account. Disbursements pursuant to this Section 3 shall be made promptly (and in any event within five (5) business days) following the Escrow Release Date. For purposes of this Agreement, an “Outstanding Claim Amount” means the aggregate amount of Damages (as defined in the applicable Purchase Agreement under which such Claim is being sought) which is set forth in a Claim (as defined below) delivered to the Escrow Agent and the Sellers’ Representative prior to the Escrow Release Date and with respect to which and to the extent that it remains unresolved and no distribution has been made prior to the Escrow Release Date pursuant to this Section 3. Outstanding Claim Amounts shall be distributed to the Sellers and/or to Buyer, as is appropriate, upon the final resolution of such Outstanding Claim Amounts (notwithstanding that such final resolution shall not have occurred until after the Escrow Release Date) as evidenced by (A) joint written instructions from the Sellers’ Representative and Buyer as to the disposition of the Outstanding Claim Amount or (B) an order of a court having jurisdiction over the matter which is final and not subject to further court proceedings or appeal (which shall also be sent to Buyer and Sellers’ Representative, as applicable, by the party providing such final, nonappealable order to the Escrow Agent); provided, however, that any Outstanding Claim Amounts which may be finally resolved in favor of the Sellers prior to the Escrow Release Date shall not give rise to any distribution to the Sellers or the Sellers’ Representative prior to the Escrow Release Date. Upon receipt of any such instructions or orderFunds, the Escrow Agent shall disburse an amount $56,950,000.00 of funds equal the Escrow Funds (the “Initial Transfer”) to the Outstanding Claim Amount Indenture Trustee for application by the Indenture Trustee pursuant to the Indenture by wire transfer in immediately available funds to The Bank of New York Mellon, ABA# 000000000, GLA# 111-565, and for further credit to TAS# 308335 Risk Mgmt, Reference: Finova Group Inc. Interim Distribution. (b) On the Business Day after receipt of the Escrow Funds, the Escrow Agent shall deposit $850,000.00 of the Escrow Funds (the “Contingency Amount”) to a subaccount of the Escrow Account (such subaccount, the “Contingency Account”). (c) On the Business Day after receipt of the Escrow Funds, the Escrow Agent shall deposit $81,228,077.87 of the Escrow Funds (the “Litigation Amount”) to a subaccount of the Escrow Account (such subaccount, the “Litigation Account”). (d) After the Initial Transfer, the Escrow Agent will disburse the remainder of the Escrow Funds contained in the Litigation Account in accordance therewithwith the instructions contained in an escrow release instruction (“Escrow Release Instruction”) in the form of Exhibit A or pursuant to a final order of a court of competent jurisdiction addressed to the Escrow Agent directing the Escrow Agent to disburse the remainder of the Escrow Funds contained in the Litigation Account. (e) On the Business Day after all funds have been disbursed from the Litigation Account, the Escrow Agent shall automatically disburse all of the funds from the Contingency Account to the Indenture Trustee, subject to its rights under Section III to retain amounts in respect of any future costs and expenses; provided that, the Escrow Agent shall disburse such funds no later than the 180th day after the final disbursement of the Litigation Account if on such 180th day it is not on notice of any claim that could reasonably give rise to a claim by the Escrow Agent under Section III (f) hereof. (f) Notwithstanding anything contained herein to the contrary, in the event funds transfer instructions are given, whether in writing, by facsimile or otherwise, Escrow Agent is authorized (but not required) to seek confirmation of such instructions by telephone call-back, and the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons designated in the instructions. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. The parties to this Agreement acknowledge that such security procedure is commercially reasonable. Escrow Agent may disburse the Escrow Account pursuant to this Section II, either by wire transfer or certified or bank check, at the sole discretion of the Escrow Agent. It is understood, however, that the Escrow Agent shall at all times hold may disburse any funds in the applicable sub-Escrow Account which without any separate instructions, if such disbursements are sufficient to cover in accordance with the aggregate amount terms of all then Outstanding Claim Amounts held against such sub-Escrow Account, or if the amount of funds is not then sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against the applicable sub-Escrow Account, the entire balance of such sub-Escrow Accountthis Agreement.

Disbursement of Escrow Account. (a) Subject to paragraphs From the date of this Agreement until the earlier of (a) the twelve (12)-month anniversary of the date of this Agreement or (b) December 30, 2011 (such earlier date, the “Escrow Termination Date”), the Buyer may give notice (ca “Claim Notice”) to the Seller and (d) below, the Escrow Agent is hereby authorized of a claim for Damages pursuant to, and directed in accordance with the terms of, Article IX of the Purchase Agreement (a “Damages Claim”), which notice shall briefly describe the claim and the total monetary damages (or, if not reasonable capable of calculation, an estimate of the total monetary damages) sought by a Buyer Indemnified Party. Such Claim Notice shall not be deemed to disburse constitute notice of an indemnification claim pursuant to Article IX of the Purchase Agreement unless it complies with Section 9.5 of the Purchase Agreement. (b) If the Seller does not deliver notice to the Sellers all Buyer and the Escrow Agent disputing a Damages Claim on the basis that such Damages Claim is not payable pursuant to the terms of the funds Purchase Agreement (a “Claim Dispute”) within thirty (30) calendar days after the Seller’s receipt of the Claim Notice, then the dollar amount of the Damages Claim set forth in the sub-Escrow Accounts, plus Buyer’s Claim Notice and the income or interest earned thereon, if any, less an amount equal to validity of the aggregate amount of Outstanding Claim Amounts, on [two years from closing date], 2012 (claim under the “Escrow Release Date”) pursuant to written instructions from Sellers’ Representative which may be in the form of an excel spreadsheet (in a format acceptable to the Escrow Agent) that shall include each Seller’s name, address, taxpayer identification number, payment instruction and payment amount that indicates the disbursement amount for each Seller from each sub-Escrow Account. Disbursements pursuant to this Section 3 Purchase Agreement shall be made promptly (and in any event within five (5) business days) following the Escrow Release Date. For deemed conclusive for purposes of this AgreementAgreement and, an “Outstanding Claim Amount” means on the aggregate amount of Damages (as defined in Business Day immediately following the applicable Purchase Agreement under which such Claim is being sought) which is set forth in a Claim (as defined below) delivered to the Escrow Agent and the Sellers’ Representative prior to the Escrow Release Date and with respect to which and to the extent that it remains unresolved and no distribution has been made prior to the Escrow Release Date pursuant to this Section 3. Outstanding Claim Amounts shall be distributed to the Sellers and/or to Buyer, as is appropriate, upon the final resolution last day of such Outstanding Claim Amounts thirty (notwithstanding that such final resolution shall not have occurred until after the Escrow Release Date30) as evidenced by (A) joint written instructions from the Sellers’ Representative and Buyer as to the disposition of the Outstanding Claim Amount or (B) an order of a court having jurisdiction over the matter which is final and not subject to further court proceedings or appeal (which shall also be sent to Buyer and Sellers’ Representative, as applicable, by the party providing such final, nonappealable order to the Escrow Agent); provided, however, that any Outstanding Claim Amounts which may be finally resolved in favor of the Sellers prior to the Escrow Release Date shall not give rise to any distribution to the Sellers or the Sellers’ Representative prior to the Escrow Release Date. Upon receipt of any such instructions or ordercalendar-day period, the Escrow Agent shall disburse an pay the Buyer the dollar amount of funds equal such Damages Claim from the Escrow Account. (c) If a Claim Dispute is given with respect to a Damages Claim, the Escrow Agent shall not make any payment with respect to a Claim Notice except (i) upon receipt of and in accordance with joint written instructions of the Buyer and the Seller or (ii) after a final non-appealable decision has been rendered by a court of competent jurisdiction together with a certificate signed by the delivering party stating that such decision is final, non-appealable and from a court of competent jurisdiction, or binding arbitrator to enforce an award with respect to the Outstanding amount of such Damages Claim Amount (resolved as between the Buyer and the Seller), and then in accordance therewithwith such decision, provided that the Escrow Agent first delivers a copy of such decision to the Buyer and the Seller. In case the Escrow Agent obeys or complies with any such order, judgment or decree of any such court or binding resolution of arbitration, the Escrow Agent shall at not be liable to any of the parties to this Agreement or to any other person by reason of such compliance. (d) On the Escrow Termination Date, the Escrow Agent shall deliver by wire transfer to an account designated in writing by the Seller all times hold funds amounts that remain in the applicable sub-Escrow Account which are sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against such sub-Escrow Account, or if less the amount sum of funds is any amounts subject to claims for indemnification made by any Buyer Indemnified Party pursuant to, and in accordance with the terms of, Article IX of the Purchase Agreement (which amounts shall be subject to Section 9.7 of the Purchase Agreement) that have not then sufficient to cover been finally determined in accordance with Article IX of the aggregate amount of all then Outstanding Claim Amounts held against Purchase Agreement before the applicable sub-Escrow Account, Termination Date. (e) If at any time after the Escrow Termination Date the entire balance remaining in the Escrow Account exceeds the sum of any amounts subject to claims for indemnification made by any Buyer Indemnified Parties prior to the Escrow Termination Date pursuant to, and in accordance with, Article IX of the Purchase Agreement (which amounts shall be subject Section 9.7 of the Purchase Agreement and which amounts shall not exceed the amounts claimed on the Escrow Termination Date) that have not been finally determined in accordance with Article IX of the Purchase Agreement as of such sub-time, the Buyer and the Seller shall execute and deliver a certificate requesting the Escrow AccountAgent to deliver such excess to the Seller by wire transfer to an account designated by the Seller.

Disbursement of Escrow Account. (a) Subject The Escrow Agent is authorized by the Company and Purchaser to paragraphs disburse the Escrow Amount only as follows: (i) in accordance with joint instructions of the Company and Purchaser set forth in any written letter of direction to the Escrow Agent executed by the Company and Purchaser; or (ii) in accordance with the instruction of Purchaser pursuant to Section 4(b) below; or (iii) in accordance with the instruction of the Company pursuant to Section 4(c), Section 4(d) or Section 4(e) below. (b) At any time and from time to time by 5:00 pm, CST, prior to the earlier to occur of (A) the Final Distribution Date (as defined in Section 4(d) below), or (cB) and the release of all of the Escrow Amount pursuant to this Section 4(b) or Section 4(e), if Purchaser (don behalf of the Purchaser Indemnitees) obtains a final, non-appealable judgment from a court of competent jurisdiction (for the purpose of enforcing a Decision (as defined in Section 5(c) below)) regarding a claim for indemnification that the Purchaser Indemnitees is entitled to receive at such time pursuant to the Purchase Agreement (a “Payment Claim”), Purchaser (on behalf of the Purchaser Indemnitees) shall deliver to the Escrow Agent a written notice (a “Payment Notice”) including a copy of such judgment and the amount of indemnification adjudicated in such judgment (the “Payment Amount”). Purchaser (on behalf of the Purchaser Indemnitees) shall also simultaneously deliver to the Company a copy of such Payment Notice. On or before the second (2nd) business day following the Escrow Agent’s receipt of such Payment Notice, the Escrow Agent shall release by wire transfer to an account or accounts designated by Purchaser in such Payment Notice an amount of the Escrow Amount from the Escrow Account equal to the Payment Amount as set forth in such Payment Notice. It is expressly acknowledged and agreed that the Company shall have no right to object or protest a Payment Notice delivered by Purchaser to the Escrow Agent hereunder (and the Escrow Agent is hereby authorized instructed to disregard any such objection or protest by the Company) or the release of all or any portion of the Escrow Amount from the Escrow Account in accordance with such Payment Notice. (c) On the third (3rd) business day following the nine (9) month anniversary of the Closing Date (the “First Distribution Date”), the Escrow Agent shall release and directed to disburse distribute to the Sellers all of Company, by wire transfer to an account or accounts designated by the funds Company in the sub-Escrow Accountswriting, plus the income or interest earned thereon, if any, less an amount equal to fifty percent (50%) of the outstanding balance of the Escrow Amount as of the First Distribution Date, and to the extent the remaining Escrow Amount is less than the aggregate Asserted Damages Amount (as defined in Section 5(a) below) or the contested portion of such Asserted Damages Amount, as the case may be, with respect to all Payment Claims which have not then been resolved (the “Pending Claim Amount”) as of the First Distribution Date, less the amount of Outstanding the Pending Claim AmountsAmount in excess of fifty percent (50%) of the outstanding balance of the Escrow Amount. (d) On the third (3rd) business day following the eighteen (18) month anniversary of the Closing Date (the “Final Distribution Date”), on [two years from closing date]the Escrow Agent shall release and distribute to the Company, 2012 by wire transfer to an account or accounts designated by the Company in writing, an amount equal to one hundred percent (100%) of the outstanding balance of the Escrow Amount as of the Final Distribution Date, less the Pending Claim Amount as of the Final Distribution Date (the “Escrow Release Reserve”). After the Final Distribution Date, the outstanding balance of the Escrow Reserve or any portion thereof shall be released in accordance with Section 4(a)(i) hereof. (e) In the event the Company is irrevocably required prior to the Final Distribution Date to redeem Notes (the “Notes Redemption Obligation”) pursuant to written instructions from Sellers’ Representative which may be in with an aggregate principal amount of at least Fifty Million Dollars ($50,000,000), then the form of an excel spreadsheet (in a format acceptable Company shall deliver to the Escrow Agent) that shall include each Seller’s name, address, taxpayer identification number, payment instruction Agent and payment amount that indicates Purchaser a written notice setting forth in reasonable detail the disbursement amount for each Seller from each sub-Escrow Account. Disbursements pursuant to this Section 3 shall be made promptly Note Redemption Obligation (and in any event within five (5) business days) following the Escrow Release Date“Redemption Notice”). For purposes of this Agreement, an “Outstanding Claim Amount” means Notes shall collectively mean (i) the aggregate amount of Damages (as defined in 5.50% senior convertible notes due 2027 issued by the applicable Purchase Agreement under which such Claim is being sought) which is set forth in a Claim (as defined below) delivered Company pursuant to the Escrow Agent Indenture dated as of March 28, 2007, entered into between Diversa Corporation and Xxxxx Fargo Bank, National Association, as trustee, (ii) the Sellers’ Representative prior 8% senior convertible notes due April 1, 2012 issued by the Company and (iii) the 9.00% convertible senior secured notes due April 1, 2027 issued by the Company pursuant to the Escrow Release Date Indenture dated September 1, 2009 between Verenium Corporation and with respect to which and to the extent that it remains unresolved and no distribution has been made prior to the Escrow Release Date pursuant to this Section 3. Outstanding Claim Amounts shall be distributed to the Sellers and/or to BuyerXxxxx Fargo Bank, National Association, as is appropriate, upon trustee. On or before the final resolution of such Outstanding Claim Amounts third (notwithstanding that such final resolution shall not have occurred until after the Escrow Release Date3rd) as evidenced by (A) joint written instructions from the Sellers’ Representative and Buyer as to the disposition of the Outstanding Claim Amount or (B) an order of a court having jurisdiction over the matter which is final and not subject to further court proceedings or appeal (which shall also be sent to Buyer and Sellers’ Representative, as applicable, by the party providing such final, nonappealable order to business day following the Escrow Agent); provided, however, that any Outstanding Claim Amounts which may be finally resolved in favor ’s receipt of the Sellers prior to the Escrow Release Date shall not give rise to any distribution to the Sellers or the Sellers’ Representative prior to the Escrow Release Date. Upon receipt of any such instructions or orderRedemption Notice, the Escrow Agent shall disburse release by wire transfer to an account or accounts designated by the Company in such Redemption Notice an amount of funds equal to one hundred percent (100%) of the Outstanding Claim Amount in accordance therewith, provided that then outstanding balance of the Escrow Agent shall at all times hold funds in the applicable sub-Escrow Account which are sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against such sub-Escrow Account, or if the amount of funds is not then sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against the applicable sub-Escrow Account, the entire balance of such sub-Escrow AccountAmount.

Disbursement of Escrow Account. (a) Subject The Escrow Agent is authorized by the Company and Purchaser to paragraphs disburse the Escrow Amount only as follows: (i) in accordance with joint instructions of the Company and Purchaser set forth in any written letter of direction to the Escrow Agent executed by the Company and Purchaser; or (ii) in accordance with the instruction of Purchaser pursuant to Section 4(b) below; or (iii) in accordance with the instruction of the Company pursuant to Section 4(c), Section 4(d) or Section 4(e) below; or (iv) in accordance with Section 8 below for reimbursement to the Company for any tax payment made by the Company on interest or other income earned under this Agreement. (b) At any time and from time to time by 5:00 pm, CST, prior to the earlier to occur of (A) the Final Distribution Date (as defined in Section 4(d) below), or (cB) and the release of all of the Escrow Amount pursuant to this Section 4(b) or Section 4(e), if Purchaser (don behalf of the Purchaser Indemnitees) obtains a final, non-appealable judgment from a court of competent jurisdiction (for the purpose of enforcing a Decision (as defined in Section 5(c) below)) regarding a claim for indemnification that the Purchaser Indemnitees is entitled to receive at such time pursuant to the Purchase Agreement (a “Payment Claim”), Purchaser (on behalf of the Purchaser Indemnitees) shall deliver to the Escrow Agent a written notice (a “Payment Notice”) including a copy of such judgment and the amount of indemnification adjudicated in such judgment (the “Payment Amount”). Purchaser (on behalf of the Purchaser Indemnitees) shall also simultaneously deliver to the Company a copy of such Payment Notice. On or before the second (2nd) Business Day following the Escrow Agent’s receipt of such Payment Notice, the Escrow Agent shall release by wire transfer to an account or accounts designated by Purchaser in such Payment Notice an amount of the Escrow Amount from the Escrow Account equal to the Payment Amount as set forth in such Payment Notice. It is expressly acknowledged and agreed that the Company shall have no right to object or protest a Payment Notice delivered by Purchaser to the Escrow Agent hereunder (and the Escrow Agent is hereby authorized instructed to disregard any such objection or protest by the Company) or the release of all or any portion of the Escrow Amount from the Escrow Account in accordance with such Payment Notice. (c) On the third (3rd) Business Day following the nine (9) month anniversary of the Closing Date (the “First Distribution Date”), the Escrow Agent shall release and directed to disburse distribute to the Sellers all of Company, by wire transfer to an account or accounts designated by the funds Company in the sub-Escrow Accountswriting, plus the income or interest earned thereon, if any, less an amount equal to fifty percent (50%) of the outstanding balance of the Escrow Amount as of the First Distribution Date, and to the extent the remaining Escrow Amount is less than the aggregate Asserted Damages Amount (as defined in Section 5(a) below) or the contested portion of such Asserted Damages Amount, as the case may be, with respect to all Payment Claims which have not then been resolved (the “Pending Claim Amount”) as of the First Distribution Date, less the amount of Outstanding the Pending Claim AmountsAmount in excess of fifty percent (50%) of the outstanding balance of the Escrow Amount. (d) On the third (3rd) Business Day following the eighteen (18) month anniversary of the Closing Date (the “Final Distribution Date”), on [two years from closing date]the Escrow Agent shall release and distribute to the Company, 2012 by wire transfer to an account or accounts designated by the Company in writing, an amount equal to one hundred percent (100%) of the outstanding balance of the Escrow Amount as of the Final Distribution Date, less the Pending Claim Amount as of the Final Distribution Date (the “Escrow Release Reserve”). After the Final Distribution Date, the outstanding balance of the Escrow Reserve or any portion thereof shall be released in accordance with Section 4(a)(i) hereof. (e) In the event the Company is irrevocably required prior to the Final Distribution Date to redeem Notes (the “Notes Redemption Obligation”) pursuant to written instructions from Sellers’ Representative which may be in with an aggregate principal amount of at least Fifty Million Dollars ($50,000,000), then the form of an excel spreadsheet (in a format acceptable Company shall deliver to the Escrow Agent) that shall include each Seller’s name, address, taxpayer identification number, payment instruction Agent and payment amount that indicates Purchaser a written notice setting forth in reasonable detail the disbursement amount for each Seller from each sub-Escrow Account. Disbursements pursuant to this Section 3 shall be made promptly Note Redemption Obligation (and in any event within five (5) business days) following the Escrow Release Date“Redemption Notice”). For purposes of this Agreement, an “Outstanding Claim Amount” means Notes shall collectively mean (i) the aggregate amount of Damages (as defined in 5.50% senior convertible notes due 2027 issued by the applicable Purchase Agreement under which such Claim is being sought) which is set forth in a Claim (as defined below) delivered Company pursuant to the Escrow Agent Indenture dated as of March 28, 2007, entered into between Diversa Corporation and Wxxxx Fargo Bank, National Association, as trustee, (ii) the Sellers’ Representative prior 8% senior convertible notes due April 1, 2012 issued by the Company and (iii) the 9.00% convertible senior secured notes due April 1, 2027 issued by the Company pursuant to the Escrow Release Date Indenture dated September 1, 2009 between Verenium Corporation and with respect to which and to the extent that it remains unresolved and no distribution has been made prior to the Escrow Release Date pursuant to this Section 3. Outstanding Claim Amounts shall be distributed to the Sellers and/or to BuyerWxxxx Fargo Bank, National Association, as is appropriate, upon trustee. On or before the final resolution of such Outstanding Claim Amounts third (notwithstanding that such final resolution shall not have occurred until after the Escrow Release Date3rd) as evidenced by (A) joint written instructions from the Sellers’ Representative and Buyer as to the disposition of the Outstanding Claim Amount or (B) an order of a court having jurisdiction over the matter which is final and not subject to further court proceedings or appeal (which shall also be sent to Buyer and Sellers’ Representative, as applicable, by the party providing such final, nonappealable order to Business Day following the Escrow Agent); provided, however, that any Outstanding Claim Amounts which may be finally resolved in favor ’s receipt of the Sellers prior to the Escrow Release Date shall not give rise to any distribution to the Sellers or the Sellers’ Representative prior to the Escrow Release Date. Upon receipt of any such instructions or orderRedemption Notice, the Escrow Agent shall disburse release by wire transfer to an account or accounts designated by the Company in such Redemption Notice an amount of funds equal to one hundred percent (100%) of the Outstanding Claim Amount in accordance therewith, provided that then outstanding balance of the Escrow Agent shall at all times hold funds in the applicable sub-Escrow Account which are sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against such sub-Escrow Account, or if the amount of funds is not then sufficient to cover the aggregate amount of all then Outstanding Claim Amounts held against the applicable sub-Escrow Account, the entire balance of such sub-Escrow AccountAmount.