Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b). (b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability. (c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority. (d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution. (e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account. (f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation. (g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (Vangent, Inc.)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at At the Closing, Buyer and the Seller shall enter into a separate, interest-bearing escrow account (the “an Escrow Account”) Agreement with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially Agent in the form attached hereto as Exhibit L D, pursuant to which, among other things, Buyer shall deposit an amount in cash equal to the Escrow Amount in order to (i) provide Buyer with a source of funds for satisfaction of any amounts owing to Buyer resulting from any adjustment to the amount of the Purchase Price in connection with the Excess Amount, (ii) provide Buyer with a source of funds for satisfaction of any amounts owing from the Seller to the Buyer resulting from Damages required to be indemnified by the Seller under Section 6 of this Agreement (the “Escrow AgreementAccount”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), All parties hereto agree for all Tax purposes that: (i) on Buyer shall be treated as the fifth Business Day following each occurrence owner of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, and all interest and earnings earned from the amount required to be paid pursuant to the Tax Resolution up to the remaining balance investment and reinvestment of the Escrow FundsAmount, if any, or any portion thereof, shall be allocable for income Tax purposes to Buyer pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8, (ii) if and to the extent any amount in the Escrow Account is actually distributed to or on behalf of the Seller (or deemed distributed to or on behalf of the Seller under applicable Law), interest may be imputed on such amount payable (or deemed payable) to the Seller, as required by Section 483 or 1274 of the Code, and (iiiii) in no event shall the Purchaser and aggregate payments under the Holders’ Agent shall deliver joint written instructions Escrow Agreement to the Seller from the Escrow Account exceed the sum of the Escrow Amount. Clause (iii) of the preceding sentence is intended to ensure that the right of the Seller to the Escrow Agent to releaseAmount and any interest and earnings earned thereon is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. No party hereto shall take any action or filing position inconsistent with the foregoing, in accordance with Section 2.17(c), any amounts requested except as required by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liabilityLaw.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions Distributions from the Escrow Account of dividendsto the Seller or Buyer, interestas applicable, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances as provided in the Escrow Account, pursuant to the applicable provisions of this Agreement and the Escrow Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Cleanspark, Inc.)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that At the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out request of the portion Investor, the Company shall enter into an escrow arrangement with the Investor with an escrow agent chosen by the Investor. The purpose of the Closing Merger Consideration payable escrow arrangement will be to hold the Advance Shares that are to be sent to the Significant Shareholder pursuant to this Agreement and deposited Investor by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date each Advance. The costs of the occurrence of a Tax Resolution escrow agent will be split equally by the Company and the Investor. Strategic Mining Corp By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxx Xxxxxxxxxxx Name: Xxxxx Xxxxxxxxxxx Title: Chief Executive Officer Strategic Mining Corp. (the "Company") The undersigned, hereby certifies, with respect to the last unresolved Covered Tax Mattersale of shares of Common Stock of the Company issuable in connection with this Advance Notice, the Purchaser and the Holders’ Agent shall deliver joint written instructions delivered pursuant to the Escrow Agent to release to Reserve Equity Financing Agreement (the Significant Shareholder all "Agreement"), as follows:
1. The undersigned is the duly elected Officer of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax ResolutionCompany, its Chief Executive, President or Chief Financial Officer.
2. There are no fundamental changes to (ea) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, covenants in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all Article IV of the Escrow Funds then remaining in Reserve Equity Financing Agreement and (b) the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully information set forth in the Escrow Agreement, distributions from Registration Statement which would require the Escrow Account of dividends, interestCompany to file a post effective amendment to the Registration Statement.
3. The Company has performed in all material respects all covenants and agreements to be performed by the Company and has complied in all material respects with all obligations and conditions contained in the Agreement on or prior to the Advance Notice Date, and shall continue to perform in all material respects all covenants and agreements to be performed by the Company through the applicable Advance Date. All conditions to the delivery of this Advance Notice are satisfied as of the date hereof.
4. The undersigned hereby represents, warrants and covenants that it has made all filings ("SEC Filings") required to be made by it pursuant to applicable securities laws (including, without limitation, all filings required under the Securities Exchange Act of 1934, which include Forms 10-Q or, 10-K or, 8-K, etc.). All SEC Filings and other income on balances public disclosures made by the Company, including, without limitation, all press releases, analysts meetings and calls, etc. (collectively, the "Public Disclosures"), have been reviewed and approved for release by the Company's attorneys and, if containing financial information, the Company's independent certified public accountants. None of the Company's Public Disclosures contain, as of their respective dates, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions light of the Escrow Agreementcircumstances under which they were made, not misleading.
5. The Advance requested is shares.
6. The Safety Net Price is .
7. There are currently amount of shares outstanding on a fully diluted basis. The undersigned has executed this Certificate this day of . By: Name: Title: Please email this Advance Notice to: xxxxxxxxxxxx@xxxxxxxxxxxxxxx.xxx
Appears in 1 contract
Samples: Reserve Equity Financing Agreement (Strategic Mining Corp)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants Simultaneously with the execution and agrees that the delivery of this Agreement by a Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Purchase Price, to be paid to a non-interest bearing escrow account of $3,000,000 Lxxxxxxxxx Xxxxxxx PC (the “Initial Lead Investor Counsel”) (the aggregate amounts received being held in escrow by Lead Investor Counsel are referred to herein as the “Escrow Amount”) ). Lead Investor Counsel shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of hold the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially Amount in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed escrow in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b10.1(b).
(b) Subject Lead Investor Counsel shall continue to Section 2.17(e)hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(i) on the fifth Business Day following each occurrence date this Agreement is terminated pursuant to Section 8, in which case, if Lead Investor Counsel then holds any portion of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent Amount, then: (A) Lead Investor Counsel shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to releaseeach such Purchaser, in accordance with Section 2.17(c)written wire transfer instructions received from such Purchaser; and (B) if Lead Investor Counsel has not received written wire transfer instructions from any Purchaser before such termination date, from the balance then Lead Investor Counsel may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Funds in the Escrow Account, the amount required Amount to be paid pursuant returned to the Tax Resolution up such Purchaser in a court of competent jurisdiction on written notice to the remaining balance such Purchaser, and Lead Investor Counsel shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Funds, and Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(ii) in the Purchaser case of the Closing, receipt of written instructions from both the Company and the Holders’ Agent Lead Investor that the Closing shall deliver joint written instructions to have been consummated, in which case, Lead Investor Counsel shall release the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, Amount as per the joint written payment instructions of received from the Purchaser Company and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing AuthorityLead Investor.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (VeruTEK Technologies, Inc.)
Escrow Arrangement. (a) For the purpose of securing satisfaction by the Warrantors of certain conditions subsequent set forth in Section 1.06(c) (the "CONDITIONS SUBSEQUENT"), the Warrantors and the Investors (other than the Advance Payment Investors) shall enter into a mutually satisfactory escrow agreement (the "ESCROW AGREEMENT") with an escrow agent (the "ESCROW AGENT") selected by the Warrantors and reasonably satisfactory to the Investors. The Significant Shareholder hereby covenants Warrantors and agrees the Investors agree that the amount of $3,000,000 (Escrow Amount and the “Initial Escrow Amount”) Share Certificates shall be automatically netted out held, free and clear of any and all Liens other than subject to the portion Escrow Agreement, as of the Closing Merger Consideration payable Date, in an escrow account established pursuant to the Significant Shareholder pursuant Escrow Agreement. For the avoidance of doubt, the Shares issued to the Advance Payment Investors shall not be subject to the provisions of this Agreement Section 1.06.
(b) The Escrow Amount and deposited the Escrow Share Certificates shall be held in an escrow by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant Agent subject to the terms of the Escrow AgreementAgreement until the satisfaction or waiver of the Conditions Subsequent, among upon which the Escrow Amount (together with any accrued interest paid by the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser ) shall pay all Taxes owed in respect of any net income or gain realized be immediately released by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, Company as otherwise provided in Section 1.03 and the Escrow Funds Share Certificates shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to immediately released by the Escrow Agent to releasethe Investors as otherwise provided in Section 1.04; provided that, in accordance with the event that this Agreement is terminated by the Lead Series B Investor pursuant to Section 2.17(c)8.01(b) hereof, from the balance of the Escrow Funds in Amount (together with any accrued interest paid by the Escrow Account, the amount required to Agent) shall be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to returned by the Escrow Agent to releasethe Investors, in accordance with Section 2.17(c), any amounts requested by and the Holders’ Agent to Escrow Share Certificates shall be paid returned to the applicable Taxing Authority Company, each pursuant to reduce Section 8.02(b). For the outstanding liability for avoidance of doubt, upon the return of the Escrow Share Certificates, the Investors shall not be entitled to any Covered Tax Matter, provided that right to or interest in the Escrow Shares evidenced by such request is supported by written documentation substantiating that the amounts so requested will reduce such liabilityEscrow Share Certificates.
(c) If Unless otherwise waived by the amount Lead Series B Shareholder, the Conditions Subsequent shall be deemed to be released pursuant to Section 2.17(bsatisfied when the Company shall have (i) is less than or equal entered into (x) an amendment to the liability for joint venture contract between the Covered Tax Matter Company and Baoding Tianwei Baobian Electrics Co., Ltd (the "JV CONTRACT AMENDMENT") and (y) an amendment to which such released funds relatethe articles of association of Tianwei Yingli (the "JV ARTICLE AMENDMENT"), in each case to the reasonable satisfaction of the Lead Series B Shareholder; (ii) delivered a legal opinion to the reasonable satisfaction of the Investors from the PRC counsel of the Company that the Company has filed with, and obtained requisite Licenses, approvals and consents from the relevant Governmental or Regulatory Authorities (including, without limitation, the joint written payment instructions governmental approvals and filings as set forth in Section 2.07 of the Purchaser Disclosure Schedule) and any other third parties to effect the JV Contract Amendment, the JV Article Amendment and the Holders’ Agent Capital Increase; and (iii) the Shareholder Loan shall direct have been funded by the Escrow Agent Company to pay the released Escrow Funds directly Tianwei Yingli prior to the Company for remittance to Capital Increase and duly registered with the applicable Taxing AuthorityBaoding Branch of the State Administration of Foreign Exchange.
(d) Subject to Section 2.17(e), on Each Investor (other than an Advance Payment Investor) hereby appoints the tenth Business Day following the date of the occurrence of a Tax Resolution Lead Series B Shareholder as its representative with respect to the last unresolved Covered Tax Matternegotiation, the Purchaser execution and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all performance of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from and the Lead Series B Shareholder accepts such appointment. The Lead Series B Shareholder, acting in accordance with this Agreement, shall have the authority and power to act on behalf of other Investors (other than the Advance Payment Investors) with respect to the Escrow Account of dividends, interest, Agreement or other rights or obligations arising from and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, taken pursuant to the applicable provisions Escrow Agreement, provided that such actions do not increase or disproportionately affect an Investor's obligations hereunder in regards to the obligations of all Investors hereunder. Each Investor (other than an Advance Payment Investor) shall be bound by all actions taken by the Lead Series B Shareholder in accordance with this Agreement, in connection with the Escrow Agreement. Each of the Investors (other than the Lead Series B Shareholder and the Advanced Payment Investors) agrees, severally and not jointly, to indemnify, defend and hold harmless the other Lead Series B Shareholder to the fullest extent permitted by law from and against any and all Losses of the Lead Series B Shareholder resulting from or arising out of the Lead Series B Shareholder's action on behalf of other Investors with respect to the Escrow Agreement or other rights or obligations arising from and taken pursuant to the Escrow Agreement in the absence of willful misconduct or bad faith on the part of the Lead Series B Shareholder, provided, further that, such Losses shall be borne pro rata by each of the Investors (including the Lead Series B Shareholder) in proportion to such Investor's applicable Escrow Amount.
Appears in 1 contract
Samples: Series B Preferred Share Purchase Agreement (Yingli Green Energy Holding Co LTD)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at 2.3.1. At the Closing, into a separateeach of the Seller and the Purchaser shall execute all the documents, interest-bearing agreements and other instruments required for the establishment of the escrow account (arrangement set forth hereunder which is designated to facilitate the “Escrow Account”) with JPMorgan Chase Bank, N.A. (consummation of the “Escrow Agent”Deferred Closing(s), established pursuant to the terms including in respect of the Escrow Agreement, among appointment of the Escrow Agent, establishment of the Holders’ Agent, Escrow Dividend Account and Purchaser, substantially in the form attached hereto as Exhibit L Escrow Additional Purchased Shares Account (the “Escrow Agreement”). The costs of the escrow services referred to above will be paid equally by the Seller and Purchaser.
2.3.2. Subsequent Distribution, or any portion thereof, will be deposited into the Escrow Dividend Account, in accordance with the Purchaser Irrevocable Instructions and/or the Seller Closing Irrevocable Instructions (the date upon which such amount is deposited, a "Dividend Deposit Date"). The Seller hereby agrees that the Purchaser will be entitled to pledge the Escrow Dividend Account in its favor subject to the provisions of this Section 2.3 and the rights to obtain the Additional Purchased Shares in exchange for the applicable portion of the Seller Dividend Total Entitlement.
2.3.3. Prior to or at a Dividend Deposit Date,
2.3.3.1. Seller and Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on deliver a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions jointly executed notice to the Escrow Agent setting forth the amount of the Seller Dividend Total Entitlement (or a portion thereof) that is expected to such effect). Subject to the preceding sentence, be deposited into the Escrow Funds shall Dividend Account (“Dividend Deposit Amount”) and the number of Additional Purchased Shares to be held, invested and distributed received in accordance with the terms of the Escrow Agreement and Additional Purchased Shares Account in accordance with this Article II, Section 6.5(g) and Section 9.6(bconsideration for the Dividend Deposit Amount (“Released Additional Shares”).; and
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent 2.3.3.2. Seller shall deliver joint written instructions to the Escrow Agent and Purchaser written confirmation (“Lien Release Notice”) executed by each Person that has a Lien or other interest in or with respect to release, in accordance with Section 2.17(c), from the balance any Released Additional Shares (“Lien Holder”) setting forth all of the Escrow Funds in the Escrow Account, the amount following: (i) confirmation by such Lien Holder as to amounts owed to such Lien Holder and required to be paid to such Lien Holder so that upon such payment, the Lien Holder would fully and irrevocably release all such Liens (“Release Amounts”); (ii) the bank account information where such Release Amounts are to be paid; iii) irrevocable instructions (and appropriate release documents), executed by such Lien Holder pursuant to which, upon transfer of such Release Amounts, the Tax Resolution up Escrow Agent is irrevocably authorized to take all action necessary to fully release such Liens so that the Released Additional Shares are delivered free and clear of any Liens or any other rights or interests of such Lien Holder; and (iv) irrevocable consent that the Escrow Agent is authorized and instructed to release any and all Liens imposed on the applicable number of the Released Additional Shares, subject to receipt of the applicable Release Amounts by the Lien Holders; and
2.3.3.3. Seller shall deliver to the remaining balance Escrow Agent and Purchaser written confirmation executed by both the Chairman of the Board of Directors of Seller and the Chief Financial Officer of the Seller (“Seller Confirmation”) setting forth (i) confirmation by the Seller that the Liens referred to in the Lien Release Notices with respect to the applicable Released Additional Shares of the applicable Lien Holder constitute the only Liens and third party interests in and with respect to such Released Additional Shares and that upon payment of the applicable aggregate Release Amounts no Liens shall exist with respect to such Released Additional Shares; (ii) no other Person other than the Lien Holder has any interests in the Released Additional Shares to be delivered in consideration thereof; and (iii) that once such Liens are released, there would be no restriction or other limitations whatsoever for such applicable Released Additional Shares to be registered in the name of the Purchaser in the shareholders registry of the Company as the sole beneficial owner thereof, free and clear of any and all Liens; and
2.3.3.4. Seller shall deliver to the Escrow FundsAgent and Purchaser any other confirmations and/or documents requested by the Escrow Agent and/or the Purchaser to confirm and effect the release of any Liens with respect to the Released Additional Shares and the extinguishment of any third party rights in or with respect to such Released Additional Shares. The Seller Confirmation, together with the Lien Release Notices and any other documents requested pursuant to this sub-Section 2.2.3.4, shall be referred to collectively as the “Required Release Documents”.
2.3.4. The Parties shall instruct the Escrow Agent to first use any portion of the Dividend Deposit Amount for purposes of paying the applicable aggregate Release Amounts and releasing any and all Liens which may then be existing upon any of the Released Additional Shares against simultaneous transfer to the Escrow Agent of the Released Additional Shares (as further set forth in Section 2.1.3.2), so that on a Deferred Closing Date such Released Additional Shares are transferred to the Purchaser free and clear of any Liens. The Parties shall also instruct the Escrow Agent to act in a manner which shall be in compliance with the requirements set forth in the Xxxxxxxxx Debt Arrangement.
2.3.5. Not later than three (3) Business Days following the receipt of the Required Release Documents and the satisfaction of the Conditions Precedent, the Escrow Agent will simultaneously (i) distribute to the applicable Lien Holders the applicable Release Amounts from the Escrow Dividend Account, and (ii) transfer to Purchaser, or a trust account designated by the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions the applicable number of Released Additional Shares from the Escrow Account of dividendsAdditional Purchased Shares Account, interestall pursuant to the pro-rata mechanism set forth in Section 2.1.3.2 (a “Deferred Closing”, and other income on balances each date of which, a “Deferred Closing Date”).
2.3.6. The Parties shall further instruct the Escrow Agent to act as follows:
2.3.6.1. In the event that upon the expiration of a thirty (30)-day period following the Dividend Deposit Date, and despite the reasonable commercial efforts and diligent acts of the Seller in connection with the release of the Additional Purchased Shares from any Liens and the timely transfer thereof to the Purchaser, the Released Additional Shares are not transferred and deposited into the Escrow Additional Purchased Shares Account and the Liens thereon are not released in full, then the Escrow Agent shall, upon the written request of Purchaser at any time following the expiration of such period, immediately transfer the amount deposited in the Escrow Agent Dividend Account shall be made net of any losses on investments on balances to the Purchaser, or a trust account designated by the Purchaser in the Escrow AccountAgreement, pursuant and return any Released Additional Shares deposited with the Escrow Agent to Seller, and as a result thereof, Seller’s right to receive the applicable provisions Seller Dividend Total Entitlement and the Seller Dividend Portion Entitlement that have not yet been paid, and Purchaser’s right to acquire any Additional Purchased Shares shall expire and terminate.
2.3.6.2. To provide each of the Escrow AgreementParties with copies of the Required Release Documents and any other communications with the Company and/or the Debt Holder/s, immediately upon receipt thereof.
Appears in 1 contract
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at 2.3.1. At the Closing, into a separateeach of the Seller and the Purchaser shall execute all the documents, interest-bearing agreements and other instruments required for the establishment of the escrow account (arrangement set forth hereunder which is designated to facilitate the “Escrow Account”) with JPMorgan Chase Bank, N.A. (consummation of the “Escrow Agent”Deferred Closing(s), established pursuant to the terms including in respect of the Escrow Agreement, among appointment of the Escrow Agent, establishment of the Holders’ Agent, Escrow Dividend Account and Purchaser, substantially in the form attached hereto as Exhibit L Escrow Additional Purchased Shares Account (the “Escrow Agreement”). The costs of the escrow services referred to above will be paid equally by the Seller and Purchaser.
2.3.2. Subsequent Distribution, or any portion thereof, will be deposited into the Escrow Dividend Account, in accordance with the Purchaser Irrevocable Instructions and/or the Seller Closing Irrevocable Instructions (the date upon which such amount is deposited, a “Dividend Deposit Date”). The Seller hereby agrees that the Purchaser will be entitled to pledge the Escrow Dividend Account in its favor subject to the provisions of this Section 2.3 and the rights to obtain the Additional Purchased Shares in exchange for the applicable portion of the Seller Dividend Total Entitlement.
2.3.3. Prior to or at a Dividend Deposit Date,
2.3.3.1. Seller and Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on deliver a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions jointly executed notice to the Escrow Agent setting forth the amount of the Seller Dividend Total Entitlement (or a portion thereof) that is expected to such effect). Subject to the preceding sentence, be deposited into the Escrow Funds shall Dividend Account (“Dividend Deposit Amount”) and the number of Additional Purchased Shares to be held, invested and distributed received in accordance with the terms of the Escrow Agreement and Additional Purchased Shares Account in accordance with this Article II, Section 6.5(g) and Section 9.6(bconsideration for the Dividend Deposit Amount (“Released Additional Shares”).; and
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent 2.3.3.2. Seller shall deliver joint written instructions to the Escrow Agent and Purchaser written confirmation (“Lien Release Notice”) executed by each Person that has a Lien or other interest in or with respect to release, in accordance with Section 2.17(c), from the balance any Released Additional Shares (“Lien Holder”) setting forth all of the Escrow Funds in the Escrow Account, the amount following: (i) confirmation by such Lien Holder as to amounts owed to such Lien Holder and required to be paid to such Lien Holder so that upon such payment, the Lien Holder would fully and irrevocably release all such Liens (“Release Amounts”); (ii) the bank account information where such Release Amounts are to be paid; iii) irrevocable instructions (and appropriate release documents), executed by such Lien Holder pursuant to which, upon transfer of such Release Amounts, the Tax Resolution up Escrow Agent is irrevocably authorized to take all action necessary to fully release such Liens so that the Released Additional Shares are delivered free and clear of any Liens or any other rights or interests of such Lien Holder; and (iv) irrevocable consent that the Escrow Agent is authorized and instructed to release any and all Liens imposed on the applicable number of the Released Additional Shares, subject to receipt of the applicable Release Amounts by the Lien Holders; and
2.3.3.3. Seller shall deliver to the remaining balance Escrow Agent and Purchaser written confirmation executed by both the Chairman of the Board of Directors of Seller and the Chief Financial Officer of the Seller (“Seller Confirmation”) setting forth (i) confirmation by the Seller that the Liens referred to in the Lien Release Notices with respect to the applicable Released Additional Shares of the applicable Lien Holder constitute the only Liens and third party interests in and with respect to such Released Additional Shares and that upon payment of the applicable aggregate Release Amounts no Liens shall exist with respect to such Released Additional Shares; (ii) no other Person other than the Lien Holder has any interests in the Released Additional Shares to be delivered in consideration thereof; and (iii) that once such Liens are released, there would be no restriction or other limitations whatsoever for such applicable Released Additional Shares to be registered in the name of the Purchaser in the shareholders registry of the Company as the sole beneficial owner thereof, free and clear of any and all Liens; and
2.3.3.4. Seller shall deliver to the Escrow FundsAgent and Purchaser any other confirmations and/or documents requested by the Escrow Agent and/or the Purchaser to confirm and effect the release of any Liens with respect to the Released Additional Shares and the extinguishment of any third party rights in or with respect to such Released Additional Shares. The Seller Confirmation, together with the Lien Release Notices and any other documents requested pursuant to this sub-Section 2.2.3.5, shall be referred to collectively as the “Required Release Documents”.
2.3.4. The Parties shall instruct the Escrow Agent to first use any portion of the Dividend Deposit Amount for purposes of paying the applicable aggregate Release Amounts and releasing any and all Liens which may then be existing upon any of the Released Additional Shares against simultaneous transfer to the Escrow Agent of the Released Additional Shares (as further set forth in Section 2.1.3.2), so that on a Deferred Closing Date such Released Additional Shares are transferred to the Purchaser free and clear of any Liens. The Parties shall also instruct the Escrow Agent to act in a manner which shall be in compliance with the requirements set forth in the Xxxxxxxxx Debt Arrangement.
2.3.5. Not later than three (3) Business Days following the receipt of the Required Release Documents and the satisfaction of the Conditions Precedent, the Escrow Agent will simultaneously (i) distribute to the applicable Lien Holders the applicable Release Amounts from the Escrow Dividend Account, and (ii) transfer to Purchaser, or a trust account designated by the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions the applicable number of Released Additional Shares from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Additional Purchased Shares Account, all pursuant to the applicable provisions pro-rata mechanism set forth in Section 2.1.3.2 (a “Deferred Closing”, and each date of the Escrow Agreementwhich, a “Deferred Closing Date”).
Appears in 1 contract
Samples: Share Purchase Agreement (S.B. Israel Telecom Ltd.)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at At the Closing, Buyer and the Seller shall enter into a separate, interest-bearing escrow account (the “an Escrow Account”) Agreement with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially Agent in the form attached hereto as Exhibit L C, pursuant to which, among other things, Buyer shall deposit an amount in cash equal to the Escrow Amount in order to (i) provide Buyer with a source of funds for satisfaction of any amounts owing to Buyer resulting from any adjustment to the amount of the Purchase Price in connection with the Excess Amount, (ii) provide Buyer with a source of funds for satisfaction of any amounts owing from the Seller to the Buyer resulting from Damages required to be indemnified by the Seller under Section 6 of this Agreement (the “Escrow AgreementAccount”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), All parties hereto agree for all Tax purposes that: (i) on Buyer shall be treated as the fifth Business Day following each occurrence owner of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, and all interest and earnings earned from the amount required to be paid pursuant to the Tax Resolution up to the remaining balance investment and reinvestment of the Escrow FundsAmount, if any, or any portion thereof, shall be allocable for income Tax purposes to Buyer pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8, (ii) if and to the extent any amount in the Escrow Account is actually distributed to or on behalf of the Seller (or deemed distributed to or on behalf of the Seller under applicable Law), interest may be imputed on such amount payable (or deemed payable) to the Seller, as required by Section 483 or 1274 of the Code, and (iiiii) in no event shall the Purchaser and aggregate payments under the Holders’ Agent shall deliver joint written instructions Escrow Agreement to the Seller from the Escrow Account exceed the sum of the Escrow Amount. Clause (iii) of the preceding sentence is intended to ensure that the right of the Seller to the Escrow Agent to releaseAmount and any interest and earnings earned thereon is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. No party hereto shall take any action or filing position inconsistent with the foregoing, in accordance with Section 2.17(c), any amounts requested except as required by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liabilityLaw.
(c) If In addition, Buyer shall deliver to Escrow Agent a stock certificate evidencing the amount Stock Holdback Amount which shall constitute additional consideration to be released pursuant to Section 2.17(bearned by the Seller, in accordance with the future performance milestones (the “Holdback Milestones”) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.set forth in Schedule B.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions Distributions from the Escrow Account of dividendsto the Seller or Buyer, interestas applicable, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances as provided in the Escrow Account, pursuant to the applicable provisions of this Agreement and the Escrow Agreement.
Appears in 1 contract
Escrow Arrangement. On or before the date of the Third Supplemental Indenture, the Company shall (ai) The Significant Shareholder hereby covenants enter into an escrow agreement (“Hedging Monies Escrow Agreement”) with the Trustee and agrees that the amount of $3,000,000 DB International Trustee (Singapore) Limited, as escrow agent (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Hedging Monies Escrow Agent”), established pursuant to which the terms Hedging Monies Escrow Agent shall establish a United States dollar-denominated escrow account in the name of the Escrow Agreement, among Company as a sub-account to the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L existing Debt Service Reserve Account (the “Hedging Monies Escrow AgreementAccount”)) and the Company shall, on or prior to the date hereof, deposit therein US$2,562,500 by transfer of such funds from the existing Debt Service Reserve Account to the Hedging Monies Escrow Account and (ii) perform all of the obligations in the Account Charge to perfect a first priority security interest created thereunder over the funds in the Hedging Monies Escrow Account in favor of the Collateral Agent acting on behalf of the Holders. The Purchaser Trustee shall pay all Taxes owed in respect thereafter within a reasonable time period serve a written notice of any net income or gain realized by the Escrow Account on a current basisdeposit of such amount to the Holders. The On the last day of each Fiscal Quarter (beginning with the Fiscal Quarter ended June 30, 2009), the Hedging Monies Escrow Agent shall distribute cash notify the Trustee of the then outstanding balance in the Hedging Monies Escrow Account. If, on the last day of any Fiscal Quarter after the execution of the Hedging Monies Escrow Agreement (beginning with the Fiscal Quarter ended June 30, 2009), the balance in the Hedging Monies Escrow Account is less than 125% of the Prevailing Hedge Price (determined with respect to the Purchaser Quotes received by the Trustee during the most recent Applicable Quote Period), the Trustee shall notify the Company, the Holders of the Notes and the Hedging Monies Escrow Agent in writing of such shortfall and the amount thereof. Whether or not the Company receives any notice from the Trustee of such shortfall, upon the occurrence of such shortfall and within ten (10) Business Days after the beginning of such next succeeding Fiscal Quarter, the Company shall deposit, or cause to be deposited on the Company’s behalf, an amount equal to such shortfall into the income Tax liability Hedging Monies Escrow Account. If, on the last day of Purchaser on such income or gainany Fiscal Quarter after the execution of the Hedging Monies Escrow Agreement, using the tax rate balance in the Hedging Monies Escrow Account is more than 125% of the Prevailing Hedge Price (determined with respect to which such income or gain was subject as determined the Quotes received by the Purchaser Trustee during the most recent Applicable Quote Period), the Company shall have the right to withdraw such surplus amount from the Hedging Monies Escrow Account pursuant to the following terms and conditions:
(with an appropriate reduction i) Upon the satisfaction of the terms and conditions set forth in such tax rate attributable clause (ii) below and subject to imputed interest expense deductions reasonably expected the terms and conditions set forth therein, the Company shall execute and deliver to be realized the Trustee a Disbursement Request pursuant to Section 2.3(b) of the Hedging Monies Escrow Agreement. Upon the receipt by the Purchaser Trustee of the Disbursement Request, the Trustee shall execute a Release Instruction (as defined in respect the Hedging Monies Escrow Agreement) pursuant to Section 2.3(a) of current the Hedging Monies Escrow Agreement on the second Business Day following the day of receipt of a completed Disbursement Request and future payments deliver the signed Release Instruction to the Significant Shareholder of any Hedging Monies Escrow Funds) (and Agent, provided such receipt shall take place before 11:00 a.m. Hong Kong time on a Business Day. If a Disbursement Request is received after 11:00 a.m. Hong Kong time, then it shall be deemed to have been received on the Purchaser and next following Business Day. If a Disbursement Request is received on a day which is not a Business Day, it shall be deemed to have been received on the Holders’ Agent next following Business Day. The Release Instruction shall give instructions to direct the Hedging Monies Escrow Agent to such effect). Subject release the amounts specified in the Release Instruction from the Hedging Monies Escrow Account to the preceding sentence, account specified in the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b)Release Instruction.
(bii) Subject The obligation of the Trustee to execute a Release Instruction is expressly subject to the satisfaction of, and compliance with, the following terms and conditions:
(A) the Trustee’s receipt of three (3) Quotes during the most recent Applicable Quote Period pursuant to this Section 4.08(b);
(B) a balance in the Hedging Monies Escrow Account on the last day of a Fiscal Quarter of more than 125% of the Prevailing Hedge Price; and
(C) the Trustee’s receipt of a Disbursement Request pursuant to Section 2.17(e)2.3(b) of the Hedging Monies Escrow Agreement which shall specify the amount which the Company seeks to withdraw from the Hedging Monies Escrow Account, (i) which amount shall not exceed the positive difference between the balance in the Hedging Monies Escrow Account on the fifth Business Day following each occurrence last day of a Tax Resolution, the Purchaser Applicable Fiscal Quarter and 125% of the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), Prevailing Hedge Price. Upon any release of such surplus amount from the balance of the Escrow Funds in the Hedging Monies Escrow Account, the lien on the released amount required to be paid pursuant to the Tax Resolution up to the remaining balance in favor of the Escrow Funds, and (ii) the Purchaser and the Holders’ Collateral Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions acting on behalf of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account Holders shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreementimmediately released.
Appears in 1 contract
Samples: Third Supplemental Indenture (7 Days Group Holdings LTD)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants Simultaneously with the execution and agrees that the delivery of this Agreement by a Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Purchase Price, to be paid to a non-interest bearing escrow account of $3,000,000 Xxxxxxxxxx Xxxxxxx PC (the “Initial Lead Purchaser Counsel”) (the aggregate amounts received being held in escrow by Lead Purchaser Counsel are referred to herein as the “Escrow Amount”) ). Lead Purchaser Counsel shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of hold the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially Amount in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed escrow in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b10.1(b).
(b) Subject Lead Purchaser Counsel shall continue to Section 2.17(e)hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(i) on the fifth Business Day following each occurrence date this Agreement is terminated pursuant to Section 8, in which case, if Lead Purchaser Counsel then holds any portion of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent Amount, then: (A) Lead Purchaser Counsel shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to releaseeach such Purchaser, in accordance with Section 2.17(c)written wire transfer instructions received from such Purchaser; and (B) if Lead Purchaser Counsel has not received written wire transfer instructions from any Purchaser before such termination date, from the balance then Lead Purchaser Counsel may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Funds in the Escrow Account, the amount required Amount to be paid pursuant returned to the Tax Resolution up such Purchaser in a court of competent jurisdiction on written notice to the remaining balance such Purchaser, and Lead Purchaser Counsel shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Funds, and Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(ii) in the Purchaser case of the Closing, receipt of written instructions from both the Company and the Holders’ Agent Lead Purchaser that the Closing shall deliver joint written instructions to have been consummated, in which case, Lead Purchaser Counsel shall release the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, Amount as per the joint written payment instructions of received from the Purchaser Company and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing AuthorityLead Purchaser.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cord Blood America, Inc.)
Escrow Arrangement. (a) Prior to Financial Closing, the Purchaser undertakes to execute an Escrow Agreement which shall, subject to Section 9.8(b), become effective within thirty (30) Days after Commercial Operations Date. The Significant Shareholder hereby covenants Purchaser shall for the purposes of effecting payments under the Agreement, designate a collection account maintained with the Escrow Agent in accordance with the Escrow Agreement. The Escrow Agent shall transfer, in accordance with the Escrow Agreement, the payments due in accordance with Section 9.5, to the Seller that have fallen due and agrees which have not been disputed by the Purchaser.
(b) In the event that the amount Purchaser has not completed the Purchaser Interconnection Facilities within ninety (90) Days following the date by which the Purchaser Interconnection Facilities were required to be completed in accordance with Section 6.5(a) as such date may be extended pursuant to Section 6.5(a)(i), (ii), (iii), (iv) and after issuance of $3,000,000 Certificate of Readiness for Synchronization by the Engineer under Section 6.5(b), then the Escrow Agreement shall become effective within fifteen (15) Business Days of receipt of a written notice from the Seller by the Escrow Agent requiring that the Escrow Agreement should become effective immediately.
(c) The Escrow Account will remain in place until all payment obligations of the Purchaser to the Seller in relation to the payments due in accordance with Section 9.5, to the extent of any undisputed amounts, are paid or discharged in full, provided that;
(i) All Consents under this Agreement are timely obtained as per the terms of this Agreement;
(ii) The Agreement is not terminated due to a Force Majeure Event pursuant to Section 15;
(iii) The Agreement is not terminated pursuant to Section 16.
(d) In the event that the Seller fails to pay any undisputed invoice issued by the Purchaser in accordance with this Agreement (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow AgentPurchaser Invoice”), established pursuant the Purchaser shall have the right to set-off such undisputed amounts due and payable to it under the Purchaser Invoice against any amount due and payable by the Purchaser under this Agreement.
(e) Notwithstanding the aforesaid, in the event the Purchaser is notified by the Escrow Agent that the Escrow Agreement may terminate prior to the terms termination of this Agreement, the Purchaser shall, prior to such termination of the Escrow Agreement, among provide the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (Seller with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e)alternate escrow arrangement, on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect substantially similar terms to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Samples: Energy Purchase Agreement
Escrow Arrangement. The Parties shall enter into an Escrow Agreement which shall, inter alia, set out the following provisions:
a) mechanism to deposit all Toll Revenues (on the succeeding working day of such collection) and the mechanism for distribution of respective share of such revenues to the Concessionaire and the Authority;
b) right for the Authority and the Concessionaire to set-off and make direct deductions of any amounts in case any amount contractually payable by the Concessionaire or the Authority which have not been paid by the same including payments for the Independent Engineer and Independent Auditor;
c) Authority’s ability (with the confirmation of the Independent Auditor) to determine the amounts of Insurance proceeds (to the extent they are deposited in the Escrow Account) and other compensations received by the Concessionaire and to make adjustments in the amounts of Termination Payments payable by the Authority, provided however, the Authority’s rights in relation to Insurance proceeds shall be subordinated to Financiers;
d) the mechanism for the disbursement of funds from the Escrow Account to fund the Major Maintenance Payment Account; and
e) any other rights and matters contemplated by the Authority (in consultation with the Independent Engineer and the Independent Auditor) which it believes are reasonable and necessary for the transactions of this nature and deductions as determined with the Independent Engineer and the Independent Auditor. [Escrow Account may have a lien over it in favour of Financiers, if the same is required. Conditions relating to the same shall be incorporated in the Concession Direct Agreement].
18. DEFECTS & DEFICIENCIES, NOTICE OF REMEDY, SUSPENSION 18.1 REMEDYING DEFECTS & DEFICIENCIES
18.1.1 The Concessionaire warrants that the:
(a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) Project Works shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially performed in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed good workmen like manner in accordance with the terms of the Escrow Agreement Applicable Standards and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).shall be free from all Defects & Deficiencies; and
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax ResolutionConcession Assets shall comply with the Applicable Standards.
18.1.2 In order that the Project Works and the Concession Assets comply with the foregoing warranties and that the same are in the condition required by this Agreement, the Purchaser Concessionaire shall execute all works and services relating to amendment, reconstruction and remedying of Defects & Deficiencies (including the Holders’ Agent removal, replacement and reinstallation of materials and equipment, remedying of Defects & Deficiencies and retesting of repaired or replaced portions of the Project Works (if appropriate in accordance with Good Industry Practices) at its own cost, risk and expense; provided, however the amendment, reconstruction and remedying of such Defects & Deficiencies shall deliver joint written instructions be at the cost, risk and expense of the Authority in the event the same is caused by a Permitted Events (except a Non Political Event).
18.1.3 If the remedying of any Defect & Deficiency or damage is such that it may significantly affect the performance of the Project Works and/or the Concession Assets, the Independent Engineer and/or the Authority may require that certain Construction Tests, O&M Tests and/or the Completion Tests (as the case may be) to be repeated to the Escrow Agent to release, extent necessary. The requirement shall be made by written Notice after the Defect & Deficiency or damage is remedied. Such tests shall be carried out by the Concessionaire in accordance with the Applicable Standards and all costs and expenses of any nature associated with re- performance of such tests shall be allocated in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability18.1.2.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Samples: Concession Agreement
Escrow Arrangement. (a) At any time prior to the obtaining of the NJBPU Approval and/or the FPSC Approval, the Borrower shall have an option to request, and the Administrative Agent and each Lender hereby agrees, subject to satisfaction of the conditions of Sections 6.1 and 6.2 hereof (other than (x) the obtaining of the NJBPU Approval and the FPSC Approval, (y) the effectiveness of Section 2 of Amendment No. 3 to the Existing Credit Agreement and Section 2 of Amendment No. 3 to the NUI Corporation Credit Agreement and (z) the extension of the Termination Date under each of the NUI Corporation Credit Agreement and the Existing Credit Agreement), and receipt by the Administrative Agent of at least three Business Days prior written notice thereof, that each Lender shall make Loans pursuant to Section 2.1; provided that (i) the proceeds of the Loans and the Arrangement Fee (as such term is defined in the Fee Letter) and all other fees then due and payable pursuant to the Fee Letter shall be funded into an escrow account maintained by the Administrative Agent at The Significant Shareholder hereby covenants and agrees that the amount Bank of $3,000,000 New York (the “Initial "Escrow Amount”Account") and (ii) all invoiced reimbursable expenses of the Administrative Agent and the Collateral Agent incurred on or prior to the date of such funding (including without limitation the reasonable fees and disbursements of the Administrative Agent's special counsel, Dewey Ballantine LLP) shall be automatically netted out paid by the Borrower prior to or suxxxxxxxxxxx xxxxemporaneously with funding the proceeds of the portion Loans into the Escrow Account. All of such funds shall be automatically released on the Closing Merger Consideration payable date when the Administrative Agent receives the evidence satisfactory to the Significant Shareholder pursuant Administrative Agent that the NJBPU Approval and the FPSC Approval have been obtained, in each case, in form and substance reasonably satisfactory to this the Administrative Agent and Section 2 of Amendment No. 3 to the Existing Credit Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant Section 2 of Amendment No. 3 to the terms NUI Corporation Credit Agreement shall have become effective (regardless of whether the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, other conditions set forth in Sections 6.1 and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash 6.2 hereof could be met at such time) to the Purchaser in respective payees as follows: (x) CSFB shall receive, for its own account, an amount equal to the income Tax liability Arrangement Fee and all other fees and expenses then due and payable pursuant hereto or the Fee Letter and (y) the Borrower shall receive the remainder of Purchaser the funds in the Escrow Account. For the avoidance of doubt, (i) the interest on such income or gain, using the tax rate Loans shall start to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to accrue and shall be realized by the Purchaser in respect of current and future payments payable to the Significant Shareholder Lenders from the date of any funding of the proceeds of the Loans into the Escrow FundsAccount, and (ii) (funds in the Escrow Account shall bear interest from such date and the Purchaser and the Holders’ Agent such interest shall give instructions be paid to the Escrow Agent to Borrower on the date when such effect). Subject to funds are released or returned, as the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b)case may be.
(b) Subject to Section 2.17(e)Notwithstanding the foregoing, (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released if funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining held in the Escrow Account in excess of any Escrow Funds required are not released on or prior to September 30, 2004 (due to the failure to obtain such Tax Resolution.
the NJBPU Approval or the FPSC Approval), then (ei) If Tax Resolutions with respect the Borrower shall then owe a fee (the "Release Fee") to all Covered Tax Matters the Lenders in an aggregate amount equal to the amount of interest which would have not been obtained by accrued on the Loans from the date which is 24 months from the Closing Dateescrowed through September 30, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release2004, in accordance with Section 2.17(c(ii) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances funds held in the Escrow Account shall be made net distributed on September 30, 2004 as follows:
(A) the Administrative Agent shall receive for the account of any losses on investments on balances each Lender an aggregate amount equal to the proceeds of the Loans and the Release Fee, and (B) the Borrower shall receive the remainder of the funds, if any, in the Escrow Account, pursuant ; provided that in the event that the funds held in the Escrow Account are not sufficient to make the distribution set forth in clause (ii)(A) above the Borrower shall pay to the applicable Administrative Agent for the account of each Lender the amount of such deficiency, and (iii) the compensation, reimbursement and indemnification provisions of contained in the Escrow AgreementCommitment Letter and in the Fee Letter shall be reinstated and in full force and effect on and from the date thereof.
Appears in 1 contract
Samples: Credit Agreement (Nui Corp /Nj/)
Escrow Arrangement. (a) At any time prior to the obtaining of the NJBPU Approval and/or the FPSC Approval, the Borrower shall have an option to request, and the Agent and each Lender hereby agrees, subject to satisfaction of the conditions of Section 5(a) of this Agreement and Sections 2.6 and 6.3 of the Credit Agreement (determined as if Section 2 hereof had been given effect)(other than (x) the obtaining of the NJBPU Approval and the FPSC Approval, (y) the effectiveness of Section 2 hereof and Section 2 of Amendment No. 3 to the NUI Utilities Credit Agreement and (z) the extension of the Termination Date under each of the Credit Agreement and the NUI Utilities Credit Agreement), and receipt by the Agent of at least three Business Days prior written notice thereof, that each Lender shall make Additional Term Loans pursuant to Section 2.1; provided that (i) (A) the proceeds of the Additional Term Loans, (B) the funds to be deposited into the Interest Reserve Account pursuant to Section 2.6 and Section 6.3(v) of the Credit Agreement (determined as if Section 2 hereof had been given effect), (C) the Extension Fee under the Credit Agreement, (D) the Amendment Fee hereunder (but not the costs and expenses under Section 5(a)(iii) hereof), and (E) the Arrangement Fee (as such term is defined in the New Facilities Fee Letter) and all other fees then due and payable on the Additional Term Loans Closing Date pursuant to the New Facilities Fee Letter to be funded into an escrow account maintained by the Agent at The Significant Shareholder hereby covenants and agrees that the amount Bank of $3,000,000 New York (the “Initial "Escrow Amount”Account") and (ii) all invoiced reimbursable expenses of the Agent incurred on or prior to the date of such funding (including without limitation the reasonable fees and disbursements of the Agent's special counsel, Xxxxx Xxxxxxxxxx LLP) shall be automatically netted out paid by the Borrower prior to or substantially contemporaneously with funding the proceeds of the portion Additional Term Loans into the Escrow Account. All of such funds shall be automatically released on the date when the Agent receives the evidence satisfactory to the Agent that the NJBPU Approval and the FPSC Approval have been obtained, in each case, in form and substance reasonably satisfactory to the Agent and Section 2 of Amendment No. 3 and Section 2 of Amendment No. 3 to the NUI Utilities Credit Agreement shall have become effective (regardless of whether the other conditions set forth in Sections 6.1 and 6.3 of the Closing Merger Consideration payable Credit Agreement could be met at such time) to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at respective payees as follows: (x) the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to receive, for the Purchaser in account of each Lender, an amount equal to the income Tax liability sum of Purchaser on such income or gainthe fees specified in clauses (C) and (D) above, using the tax rate to which such income or gain was subject as determined by the Purchaser (with y) CSFB shall receive, for its own account, an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments aggregate amount equal to the Significant Shareholder Arrangement Fee and all other fees and expenses then due and payable pursuant hereto or the New Facilities Fee Letter, and (z) the Borrower shall receive the remainder of any the funds in the Escrow FundsAccount. For the avoidance of doubt, (i) (the interest on the Additional Term Loans shall start to accrue and the Purchaser and the Holders’ Agent shall give instructions be payable to the Lenders from the date of funding of the proceeds of the Additional Term Loans into the Escrow Agent to Account, and (ii) funds in the Escrow Account shall bear interest from such effect). Subject date and such interest shall be paid to the preceding sentenceBorrower on the date when such funds are released or returned, as the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b)case may be.
(b) Subject Notwithstanding the foregoing, if funds held in the Escrow Account are not released on or prior to Section 2.17(eSeptember 30, 2004 (due to the failure to obtain the NJBPU Approval or the FPSC Approval), then (i) on the fifth Business Day following each occurrence provisions of a Tax ResolutionSection 2 hereof shall be null and void, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and Borrower shall then owe a fee (the Holders’ Agent shall deliver joint written instructions "Release Fee") to the Escrow Agent to release, Lenders in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the an aggregate amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to amount of interest which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), would have accrued on the tenth Business Day following Additional Term Loans from the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matterescrowed through September 30, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder 2004, (iii) all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances funds held in the Escrow Account shall be made net distributed on September 30, 2004 as follows:
(A) the Agent shall receive for the account of any losses on investments on balances each Lender an aggregate amount equal to the proceeds of the Additional Term Loans and the Release Fee, and (B) the Borrower shall receive the remainder of the funds, if any, in the Escrow Account, pursuant ; provided that in the event that the funds held in the Escrow Account are not sufficient to make the distribution set forth in clause (iii)(A) above the Borrower shall pay to the applicable Agent for the account of each Lender the amount of such deficiency, and (iv) the compensation, reimbursement and indemnification provisions contained in the Commitment Letter dated as of July 14, 2004, among the Escrow AgreementBorrower, NUI Utilities and CSFB and in the New Facilities Fee Letter shall be reinstated and in full force and effect on and from the date thereof.
Appears in 1 contract
Samples: Credit Agreement (Nui Corp /Nj/)
Escrow Arrangement. 3.3.1 The Escrow Amount is intended for the settling of Claims. If the Purchaser presents a Claim to the Sellers during the Holdback Period, the Purchaser shall also inform the Escrow Agent of the amount of the Claim (the “Claim Amount”).
3.3.2 At the expiration of the Holdback Period, the Escrow Agent shall automatically pay the Escrow Amount less (a) The Significant Shareholder hereby covenants any Claim Amounts previously paid to Indemnified Parties and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”b) shall be automatically netted out of the portion of the Closing Merger Consideration payable any accrued and outstanding Claim Amount(s) as at such date to the Significant Shareholder pursuant to this Agreement and deposited Sellers by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant payment to the terms client funds account of Counsel specified in the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions Agreement unless some other account has been notified to the Escrow Agent to such effect). Subject by Investor Seller and the Sellers’ Representative prior to the preceding sentence, eighteen (18) month anniversary of the Escrow Funds shall be held, invested and distributed Closing Date.
3.3.3 If the Purchaser does not initiate arbitration proceedings with respect to the Claim(s) referred to in Section 3.3.2 in accordance with the terms arbitration provisions of Section 10.12.2 within 180 calendar days after the end of the Escrow Agreement and in accordance with this Article IIHoldback Period, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e)or if the amount of the Loss that is at issue is not reasonably ascertainable at the end of the Holdback Period, within 180 calendar days after such amount is ascertained or reasonably ascertainable, then (i) on as regards any Claims for breach of the fifth Business Day following each occurrence of a Tax ResolutionNormal Warranties, the Purchaser and the Holders’ Agent Sellers shall deliver joint written instructions to the Escrow Agent to release, in accordance have no further liability with Section 2.17(crespect such Claim(s), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, ; and (ii) as regards any other Claims, the Purchaser’s right to be compensated for such Claim(s) from the Escrow Amount shall be deemed to have been irrevocably withdrawn, however, without limiting any other rights the Purchaser and may have under this Agreement.
3.3.4 At any time after the Holders’ Agent shall deliver joint written instructions expiry of the Holdback Period, upon resolution by the arbitral tribunal of all issues referred to it for resolution or agreement between the Parties, the Escrow Agent to releaseshall, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully as set forth in the Escrow Agreement, distributions pay (i) to the Purchaser from the Escrow Account of dividendsthe amount, interestif any, that the arbitral tribunal has determined the Purchaser to be entitled to or that the Parties have agreed upon, and other income on balances (ii) pay to the Sellers (in accordance with Section 3.3.2) the remaining Escrow Amount, if any, and the Parties shall instruct the Escrow Agent accordingly.
3.3.5 The Parties undertake promptly to execute all necessary documents that the Escrow Agent requires to be executed in order to release the Escrow Amount (or part thereof) from the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of accordance with this Agreement and the Escrow Agreement.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Silicon Laboratories Inc)
Escrow Arrangement. Within sixty (a60) The Significant Shareholder hereby covenants days following the date of this Sublease, or such other time as is mutually agreed to by Sublandlord and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account Subtenant (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow AgentArrangement Deadline”), established pursuant Sublandlord and Subtenant agree they will reasonably cooperate and use commercially reasonable good faith efforts to arrange for the terms escrow by Sublandlord of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using then current difference between the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (Fixed Rent payable under this Sublease and the Purchaser and Annual Base Rent (as defined in the Holders’ Agent shall give instructions to Xxxxxxxxx) payable under the Xxxxxxxxx for the then remaining Term of this Sublease (the “Escrow Agent to such effectArrangement”). Subject to the preceding sentence, the Escrow Funds Such escrowed amount shall be heldgoverned by a separate escrow agreement between Sublandlord and Subtenant mutually satisfactory to Sublandlord and Subtenant, invested each in its sole but reasonable discretion with both parties cooperating and distributed using commercially reasonable good faith efforts to agree upon an escrow agreement, providing for the ability of Subtenant to draw upon such escrowed amount in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), event that either (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions Subtenant receives any notice that Sublandlord has failed to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance pay any installment of the Escrow Funds in Base Rent under the Escrow AccountXxxxxxxxx as and when the same was due and payable under the Xxxxxxxxx, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and or (ii) the Purchaser Xxxxxxxxx is terminated and the Holders’ Agent Overlandlord elects to require Subtenant to assume and agree to perform all of Sublandlord’s obligations under the Xxxxxxxxx as may be set forth in and required pursuant to Overlandlord’s consent to this Sublease. Such amounts may be drawn upon by Subtenant at such time or times and each in such amounts as may be necessary to cover, (x) in the case of clause (i) above, the difference between the amount of Fixed Rent payable by Subtenant under this Sublease for the payment period in question, and the amount of Base Rent payable by Sublandlord under the Xxxxxxxxx for the same period, and (y) in the case of clause (ii), the then-remaining difference between the Fixed Rent under this Sublease and the Annual Base Rent payments Overlandlord requires Subtenant make in such a situation. Such escrow agreement shall deliver joint written instructions also provide that such escrowed amount shall be reduced and may be drawn down upon by Sublandlord on a monthly basis fifteen (15) days prior to the Escrow Agent to releasedate on which each payment of Annual Base Rent is due under the Xxxxxxxxx until such escrowed amount is exhausted, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount of each such draw not to be released pursuant to Section 2.17(b) is less than or exceed an amount equal to the liability excess of the monthly payment of Annual Base Rent coming due under the Xxxxxxxxx for the Covered Tax Matter next month, over the payment of Fixed Rent to which paid by Subtenant under this Sublease for the same month. In the event Sublandlord and Subtenant fail to agree upon such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct Escrow Arrangement by the Escrow Agent Arrangement Deadline, Subtenant shall have the right to pay terminate this Sublease upon fifteen (15) days’ prior written notice to Sublandlord (“Subtenant’s Termination Notice”) which shall be given on or within fifteen (15) days after the released Escrow Funds directly Arrangement Deadline, but in any event before the date the parties agree on an Escrow Arrangement. In such event, this Sublease shall terminate and shall be of no further force and effect and neither Sublandlord nor Subtenant shall have any rights, obligations, responsibilities or liabilities to the Company for remittance other under this Sublease. In the event Subtenant does not timely provide Subtenant’s Termination Notice, this Sublease shall continue in full force and effect. Nothing herein shall be deemed to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or limit any other written documents (collectively, “correspondence”) being submitted by right or remedy Sublandlord or Subtenant may have against the other arising out of or from any holder default or breach of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, its covenants and obligations under the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed Xxxxxxxxx or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentationthis Sublease.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Samples: Sublease (OvaScience, Inc.)
Escrow Arrangement. (a) At any time prior to the obtaining of the NJBPU Approval and/or the FPSC Approval, the Borrower shall have an option to request, and the Agent and each Lender hereby agrees, subject to satisfaction of the conditions of Sections 2.6 and 6.1 of the Credit Agreement (determined as if Section 2 hereof had been given effect)(other than (x) the obtaining of the NJBPU Approval and the FPSC Approval, and (y) the extension of the Termination Date under the Credit Agreement), and receipt by the Agent of at least three Business Days prior written notice thereof, that each Lender shall make Delayed Draw Term Loans pursuant to Section 2.1; provided that (i) (A) the proceeds of the Delayed Draw Term Loans, (B) the fee payable in connection with borrowing of the Delayed Draw Term Loans pursuant to Section 2.4b(b) of the Credit Agreement, (C) the Extension Fee under the Credit Agreement and (D) the Amendment Fee hereunder (but not the costs and expenses under Section 4(a)(iii) hereof) to be funded into an escrow account maintained by the Agent at The Significant Shareholder hereby covenants and agrees that the amount Bank of $3,000,000 New York (the “Initial "Escrow Amount”Account") and (ii) all invoiced reimbursable expenses of the Agent incurred on or prior to the date of such funding (including without limitation the reasonable fees and disbursements of the Agent's special counsel, Dewey Ballaxxxxx XXX) xxxxx be paid by the Borrower prior to or substantially contemporaneously with funding the proceeds of the Delayed Draw Term Loans into the Escrow Account. All of such funds shall be automatically netted out released on the date when the Agent receives the evidence satisfactory to the Agent that the NJBPU Approval and the FPSC Approval have been obtained, in each case, in form and substance reasonably satisfactory to the Agent and Section 2 hereof and Section 2 of Amendment No. 3 to the NUI Corporation Credit Agreement, dated as of August 20, 2004 among NUI Corporation, the Agent thereunder on behalf of the portion of Required Lenders thereunder, the Closing Merger Consideration payable Guarantors party thereto and the Lenders listed on Schedule 2.1A thereto shall have become effective to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at respective payees as follows: (x) the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to receive, for the Purchaser in account of each Lender, an aggregate amount equal to the income Tax liability sum of Purchaser the fees specified in clauses (B), (C) and (D) above and all other fees and expenses then due and payable pursuant hereto and (y) the Borrower shall receive the remainder of the funds in the Escrow Account. For the avoidance of doubt, (i) the interest on such income or gain, using the tax rate Delayed Draw Term Loans shall start to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to accrue and shall be realized by the Purchaser in respect of current and future payments payable to the Significant Shareholder Lenders from the date of any funding of the proceeds of the Delayed Draw Term Loans into the Escrow FundsAccount, and (ii) (funds in the Escrow Account shall bear interest from such date and the Purchaser and the Holders’ Agent such interest shall give instructions be paid to the Escrow Agent to Borrower on the date when such effect). Subject to funds are released or returned, as the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b)case may be.
(b) Subject Notwithstanding the foregoing, if funds held in the Escrow Account are not released on or prior to Section 2.17(eSeptember 30, 2004 (due to the failure to obtain the NJBPU Approval or the FPSC Approval), then (i) on the fifth Business Day following each occurrence provisions of a Tax ResolutionSection 2 hereof shall be null and void, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and Borrower shall then owe a fee (the Holders’ Agent shall deliver joint written instructions "Release Fee") to the Escrow Agent to release, Lenders in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the an aggregate amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to amount of interest which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), would have accrued on the tenth Business Day following Delayed Draw Term Loans from the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matterescrowed through September 30, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder 2004, (iii) all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances funds held in the Escrow Account shall be made net distributed on September 30, 2004 as follows:
(A) the Agent shall receive for the account of any losses on investments on balances each Lender an aggregate amount equal to the proceeds of the Delayed Draw Term Loans and the Release Fee, and (B) the Borrower shall receive the remainder of the funds, if any, in the Escrow Account, pursuant ; provided that in the event that the funds held in the Escrow Account are not sufficient to make the distribution set forth in clause (iii)(A) above the Borrower shall pay to the applicable provisions Agent for the account of each Lender the Escrow Agreementamount of such deficiency.
Appears in 1 contract
Samples: Credit Agreement (Nui Corp /Nj/)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that At the amount of $3,000,000 (the “Initial Escrow Amount”) shall Effective Time, Great Step will be automatically netted out of the portion of the Closing Merger Consideration payable deemed to the Significant Shareholder pursuant to this Agreement have received and deposited with the Escrow Agent (as defined below) the Escrow Shares (plus any additional shares as may be issued upon any stock split, stock dividend, or recapitalization effected by PurchaserSyntax-Brillian after the Effective Time), at without any act of Great Step. As soon as practicable after the ClosingEffective Time, into a separatethe Escrow Shares will be deposited with Arizona Escrow Financial Corporation (or other institution reasonably acceptable to Syntax-Brillian and Great Step), interest-bearing escrow account (the “as Escrow Account”) with JPMorgan Chase Bank, N.A. Agent (the “Escrow Agent”), established pursuant such deposit to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L constitute an escrow fund (the “Escrow AgreementFund”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized ) to be governed by the terms set forth herein and in the Escrow Account on a current basisAgreement. Syntax-Brillian will pay the administrative costs relating to the Escrow Fund, including the charges of the Escrow Agent. The Escrow Agent Fund shall distribute cash be available to the Purchaser in an amount equal compensate Syntax-Brillian for any Syntax-Brillian Losses. The Escrow Fund shall be held as a trust fund and shall not be subject to the income Tax liability of Purchaser on such income any lien, attachment, trustee process, or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder any other judicial process of any Escrow Funds) (creditor of any party, and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested held and distributed disbursed solely for the purposes and in accordance with the terms of this Section and the Escrow Agreement and Agreement. Except in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), the case of (i) on fraud or (ii) a breach of any of the fifth Business Day following each occurrence representations and warranties of a Tax ResolutionGreat Step in Section 3.3(a), Section 3.3(b), or Section 3.3(c) of this Agreement, the Purchaser right of Syntax-Brillian after the Effective Time to assert indemnification claims and receive indemnification payments from the Holders’ Agent Escrow Fund pursuant to this Section shall deliver joint written instructions be the sole and exclusive right and remedy exercisable by Syntax-Brillian with respect to any inaccuracy or breach in any representation, warranty, or covenant made by Vivitar or Great Step contained in this Agreement or in any instrument delivered pursuant to this Agreement or in connection with the transactions contemplated hereby. Syntax-Brillian may not receive any shares from the Escrow Fund unless and until Officer’s Certificates (as defined in Section 7.3(c) below) identifying Syntax-Brillian Losses, the aggregate cumulative amount of which exceed $100,000, have been delivered to the Escrow Agent to releaseas provided in Section 7.3(c); in such case, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions Syntax-Brillian may recover from the Escrow Account of dividends, interest, and other income on balances in Fund the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions entire amount of the Escrow Agreementcumulative Syntax-Brillian Losses.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Syntax-Brillian Corp)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants Issuer has established the Escrow Account with the Escrow Agent pursuant to the Escrow Agreement. The Issuer has deposited 7,443,782 VIP Shares and agrees 6,426,600 Preferred VIP Shares in the Escrow Account. Neither the Issuer nor the Guarantor nor any affiliates thereof own any shares of capital stock of VIP, except for the shares deposited into the Collateral Account and the Escrow Account. The Issuer shall not terminate (except in accordance with Section 14 of the Collateral Agreement) or breach the Escrow Agreement or otherwise, directly or indirectly, sell, pledge, loan or otherwise transfer title to or economics in the VIP Shares and the Preferred VIP Shares held in the Escrow Account, without obtaining the prior written consent of Holders of a majority of the aggregate principal amount of the Securities then outstanding, except that the amount Issuer shall be allowed to pledge the VIP Shares held in the Escrow Account for the benefit of $3,000,000 a third party (together with any collateral agent for, and any other Person acting on behalf of, such third party, the “Initial Escrow AmountThird Party Pledgee”) shall be automatically netted out if each of the portion following conditions shall have been satisfied (any such transaction, a “Permitted Financing Transaction”): (a) the Third Party Pledgee shall have agreed (i) not to foreclose upon or otherwise dispose of any VIP Shares so pledged to such Third Party Pledgee, except for (1) delivery of the Closing Merger Consideration payable VIP Shares so pledged to Telenor in settlement of the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established Telenor Liquidity Transaction pursuant to the terms of the Escrow AgreementTelenor Liquidity Transaction or (2) only in the case of an early termination of the Telenor Liquidity Transaction as a result of a Telenor-related credit event, among (x) sale of the Escrow Agent, VIP Shares so pledged to one of the Holders’ AgentPre-agreed Strategic Buyers so long as such a sale is settled not earlier than ten Business Days following such an early termination and the Pre-agreed Strategic Buyer has entered into an agreement with the Third Party Pledgee for the benefit of the Trustee on the terms described in Section 3.10(c) below, and Purchaser, substantially (y) sale of the VIP Shares so pledged to any person so long as such a sale is initiated not earlier than 30 days after such an early termination event; provided that the VIP Shares may not be (1) delivered to Telenor in settlement of the Telenor Liquidity Transaction or (2) only in the form attached hereto case of an early termination of the Telenor Liquidity Transaction, (x) sold to one of the Pre-arranged Strategic Buyers or (y) sold otherwise, in each case for so long as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed Collateral Agent is prevented from being able to exercise its remedies under Section 8 of the Collateral Agreement as a result of a legal action being brought in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current jurisdiction and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds each relevant period shall be held, invested and distributed in accordance with tolled for as long as the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject Collateral Agent is prevented from being able to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Fundsexercise such remedies, and (ii) not to convert the Purchaser VIP Shares so pledged into VIP ADRs, in each case, until the earlier of (x) the time when all amounts owing under the Securities, this Indenture and the Holders’ Agent Collateral Agreement shall deliver joint written instructions to have been paid in full or (y) the Escrow Agent to release, in accordance with Section 2.17(c), later of (1) the 31st day after an initial sale of any amounts requested Collateral by the Holders’ Collateral Agent or (2) if the Collateral Agent is prevented from being able to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to exercise its remedies under Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions 8 of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e)Collateral Agreement as a result of legal proceedings having been brought in any jurisdiction, then on the tenth 11th Business Day following after the date day as of which the Collateral Agent is no longer so prevented from being able to exercise its remedies under Section 8 of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Collateral Agreement, distributions from and (b) the Escrow Account of dividends, interest, and other income on balances in the Escrow Account Trustee shall be made net a party, for the benefit of any losses on investments on balances in the Escrow AccountSecurityholders, pursuant to the applicable provisions arrangements with the Third Party Pledgee creating the security interest on such VIP Shares for the sole reason of enforcement of restrictions related to the VIP Shares and Preferred VIP Shares as contemplated in this Section 3.10 and the Holders of a majority of the Escrow Agreement.aggregate principal amount of the Securities then outstanding shall have
Appears in 1 contract
Samples: Indenture (Eco Telecom LTD)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out To secure payment of the portion of benefits provided for in this Section 8 the Closing Merger Consideration payable Company agrees to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing establish an irrevocable escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. at a national bank acceptable to Xxxxxxxxxx (the “Escrow AgentBank”)) promptly upon the earliest to occur of (i) Xxxxxxxxxx’x receipt in writing of notice of termination of his employment hereunder, established pursuant (ii) public notice of Change in Control or Shift in Ownership, (iii) an agreement in principle to effect a Change in Control or Shift in Ownership by merger, purchase or sale of assets or other business combination by any person or (iv) the terms date of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially consummation of a Change in the form attached hereto as Exhibit L Control or Shift in Ownership (the “Escrow AgreementChange in Control Date” or “Shift in Ownership Date”). The Purchaser shall pay all Taxes owed in respect amount of any net income or gain realized by the Escrow Account security required on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances deposit in the Escrow Account shall be made net of any losses the maximum cash amount that the Company would be required to pay to Xxxxxxxxxx under Section 8. If the Company were to terminate Xxxxxxxxxx’x employment on investments the Change in Control Date or Shift in Ownership Date, such amount shall be maintained on balances deposit in the Escrow AccountAccount until receipt by the Bank of written acknowledgement by Xxxxxxxxxx that he has received all amounts payable to him by the Company under Section 8. Amounts deposited in the Escrow Account shall be paid out by the Bank only to Xxxxxxxxxx or his designated beneficiary, in such amount as Xxxxxxxxxx shall certify to the Bank as the amount he is owed by the Company and which the Company has not paid under Section 8 of this Agreement, or to the Company, to the extent that any amount remain on deposit in the Escrow Account after the Company shall have made all payments hereunder that it shall be obligated to make. If any amount payable to Xxxxxxxxxx pursuant to Section 8 is not paid by the applicable provisions Company or the Bank when due, interest on such payments shall accrue at the rate of one percent (1%) per month, or the Escrow Agreementhighest rate allowed by law, whichever is lower, until all overdue payments are paid in full.
Appears in 1 contract
