Escrow Claims. If Purchaser desires to make a claim under the Escrow, it must make such claim prior to the second anniversary of the Closing Date. Purchaser Indemnified Parties may do so by either stating that it intends to make a claim against the Escrow in the Claim Notice or pursuant to a separate writing (in either case, the "Escrow Claim Notice"). Except as otherwise provided herein, any claim by any Purchaser Indemnified Party against the Escrow described in an Escrow Claim Notice shall be referred to herein as an "Escrow Claim," or, if multiple, "Escrow Claims." Prior to the expiration of the Notice Period, the Sellers' Representative shall either (x) execute and deliver to Purchaser a certificate to be countersigned by Purchaser to direct jointly the Escrow Agent to disburse promptly to Purchaser, out of the Escrow Funds, the amount of such Losses, or (y) notify Purchaser, with contemporaneous delivery to the Escrow Agent, in writing of an intention to dispute the Escrow Claim(s) and the basis of such dispute (a "Dispute Notice"). If Sellers' Representative does not take any action within the Notice Period, Sellers shall be deemed to have accepted full liability for such Escrow Claims. If the Sellers' Representative agrees that Sellers have an indemnification obligation but object in writing on the basis that they are obligated to pay only a lesser amount, then within two Business Days after Purchaser's receipt of the Sellers' Representative written objection, and without prejudice to Purchaser's claim for the difference, Sellers' Representative shall execute and deliver to Purchaser a certificate to be countersigned by Purchaser, to direct jointly the Escrow Agent to promptly disburse to Purchaser, Escrow Funds equal to the lesser amount. If the Sellers' Representative delivers a Dispute Notice in accordance with Section 9.6(b), Purchaser and Sellers' Representative shall attempt in good faith until thirty (30) days after receipt of any Dispute Notice to agree upon the rights of the respective parties with respect to each Escrow Claim. If Purchaser and Sellers' Representative should so agree, a memorandum setting forth such agreement shall be prepared and signed by the Sellers' Representative and Purchaser and Purchaser and Sellers' Representative shall also execute a certificate jointly directing the Escrow Agent to disburse promptly such Escrow Funds in the manner set forth in such certificate which shall be consistent with the terms of such memorandum. If Purchaser and Sellers' Representative are unable to agree within such thirty (30) day period, then Escrow Funds valued at the amount in dispute shall be retained in the Escrow until such dispute shall be resolved in accordance with Section 10.12. Promptly after such resolution, Purchaser and the Sellers' Representative shall execute and deliver to the Escrow Agent a memorandum which directs the Escrow Agent to disburse such Funds in accordance with such resolution and the terms of the Escrow Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (eTelecare Global Solutions, Inc.)
Escrow Claims. If Purchaser desires to make a Upon the making by an Indemnified Party of any indemnification claim under the Escrow, it must make such claim prior to the second anniversary of the Closing Date. Purchaser Indemnified Parties may do so by either stating that it intends to make a claim against from the Escrow in the Claim Notice or Account pursuant to a separate writing Section 13.2 or Section 13.3 (in either case, the "Escrow Claim Notice"). Except as otherwise provided herein, any claim by any Purchaser Indemnified Party against the Escrow described in an Escrow Claim Notice shall be referred to herein as an "“Escrow Claim," or”), if multiple, "Escrow Claims." Prior to Parent (on behalf of such Indemnified Party) shall notify the expiration of the Notice Period, the Sellers' Representative shall either (x) execute and deliver to Purchaser a certificate to be countersigned by Purchaser to direct jointly the Escrow Agent to disburse promptly to Purchaser, out of such claim and an estimate of the amount necessary to satisfy and pay such claim, which may be updated from time to time by Parent (each such amount, a “Pending Escrow FundsClaims Amount” and each such notice, the amount of such Losses, or (y) notify Purchaser, with contemporaneous delivery to the a “Pending Escrow Agent, in writing of an intention to dispute the Escrow Claim(sClaims Notice”) and the basis of such dispute (a "Dispute Notice")Escrow Agent will only thereafter distribute any Pending Escrow Claims Amounts in accordance with this Section 13.5(a) and Section 13.5(d) below. If Sellers' Parent delivers a Pending Escrow Claims Notice setting forth a Pending Escrow Claims Amount and the Representative does not take any action within the Notice Period, Sellers shall be deemed deliver a written objection to have accepted full liability for such Pending Escrow Claims. If the Sellers' Representative agrees that Sellers have an indemnification obligation but object in writing on the basis that they are obligated Claims Amount to pay only a lesser amount, then within two Business Days after Purchaser's receipt of the Sellers' Representative written objection, Parent and without prejudice to Purchaser's claim for the difference, Sellers' Representative shall execute and deliver to Purchaser a certificate to be countersigned by Purchaser, to direct jointly the Escrow Agent to promptly disburse to Purchaser, Escrow Funds equal to the lesser amount. If the Sellers' Representative delivers a Dispute Notice in accordance with Section 9.6(b), Purchaser and Sellers' Representative shall attempt in good faith until within thirty (30) days after receipt Parent’s delivery of any Dispute Notice to agree upon the rights of the respective parties with respect to each such Pending Escrow Claim. If Purchaser and Sellers' Representative should so agreeClaims Notice, a memorandum setting forth such agreement shall be prepared and signed by the Sellers' Representative and Purchaser and Purchaser and Sellers' Representative shall also execute a certificate jointly directing then the Escrow Agent will distribute to disburse promptly such Escrow Funds in the manner set forth in such certificate which shall be consistent with the terms Parent on behalf of such memorandum. If Purchaser and Sellers' Representative are unable to agree Indemnified Party such Pending Escrow Claims Amount within two (2) Business Days after the expiration of such thirty (30) day period, then Escrow Funds valued at the amount in dispute shall be retained in the Escrow until such dispute shall be resolved period in accordance with Section 10.12. Promptly after such resolution, Purchaser and the Sellers' Representative shall execute and deliver to the Escrow Agent a memorandum which directs the Escrow Agent to disburse such Funds in accordance with such resolution and the terms of the Escrow Agreement. If Parent delivers a Pending Escrow Claims Notice setting forth a Pending Escrow Claims Amount and the Representative delivers a written objection to such Pending Escrow Claims Amount to Parent and the Escrow Agent within thirty (30) days after delivery of such Pending Escrow Claims Notice by Parent, then Parent and the Representative shall promptly use their commercially reasonable efforts to settle the dispute as to whether and to what extent the Indemnified Party is entitled to indemnification with respect to such Escrow Claim. If Parent and the Representative are able to reach agreement within thirty (30) days after delivery of such Pending Escrow Claims Notice by Parent, then Parent and the Representative shall deliver a joint written instruction to the Escrow Agent setting forth such agreement and instructing the Escrow Agent to release funds from the Escrow Account pursuant thereto (an “Escrow Claim Settlement Letter”), and the Escrow Agent shall release such funds in accordance with the terms of the Escrow Agreement. If Parent and the Representative are unable to reach agreement within thirty (30) days after delivery of such Pending Escrow Claims Notice by Parent, then the Escrow Agent shall release the portion of such Escrow Claim not in dispute (if any) from the Escrow Account in accordance with the terms of the Escrow Agreement, and the portion of such Escrow Claim remaining in dispute may be submitted to a court of competent jurisdiction by Parent (on behalf of the Indemnified Parties) or the Representative (on behalf of the Indemnifying Parties), after which point the Escrow Agent will only distribute such Pending Escrow Claims Amount in accordance with a final, non-appealable judgment of a court of competent jurisdiction finally determining the amount, if any, of Indemnified Losses to which an Indemnified Party is entitled for the claim related to such Pending Escrow Claims Amount (an “Escrow Claim Final Court Order”) or an Escrow Claim Settlement Letter. Any Pending Escrow Claims Amount or portion thereof to which an Indemnified Party is entitled in accordance with an Escrow Claim Settlement Letter or an Escrow Claim Final Court Order will be distributed by the Escrow Agent to such Indemnified Party on two (2) Business Days following delivery of such Escrow Claim Settlement Letter or Escrow Claim Final Court Order to the Escrow Agent.
Appears in 1 contract
Escrow Claims. If Purchaser desires to make As soon as reasonably practicable after becoming aware of a claim under the Escrow, it must make such claim prior to for indemnification through the second anniversary of the Closing Date. Purchaser Indemnified Parties may do so , MTLM shall deliver to Sellers a certificate signed by either stating that it intends to make any officer of MTLM (a claim against the Escrow in the Claim Notice or pursuant to a separate writing (in either case, the "Escrow Claim Offset Notice"), stating that Losses exist or are asserted, and specifying in reasonable detail the individual items of such Losses, and the nature of the misrepresentation, breach of warranty or covenant to which such item is related provided that the failure of MTLM to give prompt notice shall not relieve Sellers of their obligations under Article XII except (i) to the extent that Sellers shall actually and materially have been prejudiced thereby or (ii) if such notice shall be first given after the second anniversary of the Closing Date. Except as otherwise provided herein, any claim by any Purchaser MTLM Indemnified Party against the Escrow described in an Escrow Claim Offset Notice shall be referred to herein as an "Escrow Claim," or, if multiple, "Escrow Claims." Prior to the expiration Within thirty (30) calendar days after receipt of the Notice PeriodOffset Notice, the Sellers' Representative Sellers shall either (x) execute and deliver to Purchaser MTLM a certificate to be countersigned by Purchaser MTLM to direct jointly the Escrow Agent to disburse promptly to PurchaserMTLM, out of the Escrow Funds, Shares and/or Escrow Cash valued at the amount of such Losses, or (y) agree to pay MTLM in cash the amount of the Losses set forth in such Offset Notice in accordance with the next sentence and execute and deliver to MTLM a certificate to be countersigned by MTLM jointly directing the Escrow Agent to disburse promptly to Sellers, Escrow Shares valued at the amount of such Losses or (z) notify PurchaserMTLM, with contemporaneous delivery to the Escrow Agent, in writing of an intention to dispute the Escrow Claim(s) and the basis of such dispute (a "Dispute Notice")dispute. If Sellers' Representative does not take any action within the Notice Period, Sellers shall be deemed elect to have accepted full liability for such Escrow Claims. If the Sellers' Representative agrees that Sellers have an indemnification obligation but object in writing on the basis that they are obligated to pay only a lesser amount, then within two Business Days after Purchaser's receipt of the Sellers' Representative written objection, and without prejudice to Purchaser's claim for the difference, Sellers' Representative shall execute and deliver to Purchaser a certificate to be countersigned by Purchaser, to direct jointly the Escrow Agent to promptly disburse to Purchaser, Escrow Funds equal to the lesser amount. If the Sellers' Representative delivers a Dispute Notice act in accordance with Section 9.6(b), Purchaser and Sellers' Representative shall attempt in good faith until thirty clause (30y) days after receipt of any Dispute Notice to agree upon the rights of the respective parties with respect to each Escrow Claim. If Purchaser immediately preceding sentence (i) MTLM shall promptly execute the certificate received from Sellers and Sellers' Representative should so agree, a memorandum setting forth such agreement shall be prepared and signed by the Sellers' Representative and Purchaser and Purchaser and Sellers' Representative shall also execute a certificate jointly directing the Escrow Agent to disburse promptly such Escrow Funds in the manner set forth in deliver such certificate which shall be consistent with the terms of such memorandum. If Purchaser and Sellers' Representative are unable to agree within such thirty (30) day period, then Escrow Funds valued at the amount in dispute shall be retained in the Escrow until such dispute shall be resolved in accordance with Section 10.12. Promptly after such resolution, Purchaser and the Sellers' Representative shall execute and deliver to the Escrow Agent a memorandum which directs and (ii) Sellers shall pay MTLM in cash (by check or wire transfer) the Escrow Agent to disburse amount of such Funds Losses set forth in accordance with such resolution and the terms applicable Offset Notice against receipt of the Escrow Agreement.such
Appears in 1 contract
Escrow Claims. If Purchaser desires to make a claim under the Escrow, it must make such claim prior to the second anniversary of the Closing Date. Purchaser Indemnified Parties may do so by either stating that it intends to make a claim against the Escrow in the Claim Notice or pursuant to a separate writing (in either case, the "Escrow Claim Notice"). Except as otherwise provided herein, any claim by any Purchaser Indemnified Party against the Escrow described in an Escrow Claim Notice shall be referred to herein as an "Escrow Claim," or, if multiple, "Escrow Claims." a) Prior to the expiration of the Notice Periodtwenty-four (24) month term of the Escrow Agreement and subject to the applicable limitations set forth in Article VIII, any amounts due to any of the Sellers' Representative Buyer Indemnitee under Article VIII for the recovery of indemnifiable Liabilities shall either be satisfied first, and to the extent of the Escrow Amount; provided, that the foregoing shall in no way be construed to limit any of the Buyer Indemnitees’ rights to indemnifiable Liabilities in excess of the Escrow Amount. (xb) execute and deliver In the event Seller Parent does not dispute a claim for indemnification made by any of the Buyer Indemnitee that pursuant to Purchaser a certificate this Article VIII is to be countersigned by Purchaser satisfied from the Escrow Amount, Seller Parent and Buyer Parent shall provide joint written instructions to direct jointly the Escrow Agent to disburse promptly to Purchaser, out of the Escrow Funds, applicable Buyer Indemnitee the amount of the undisputed claim. Upon final non-appealable determination of Liabilities (or a settlement between the parties) with respect to any claim for indemnification made by any of the Buyer Indemnitee that pursuant to this Article VIII is to be satisfied from the Escrow Fund, (a “Final Claim Amount”) either (i) Seller Parent and Buyer Parent shall provide joint written instructions to Escrow Agent to disburse to the applicable Buyer Indemnitee such LossesFinal Claim Amount, or (yii) notify Purchaser, with contemporaneous delivery Seller or Buyer may present the final non-appealable determination of Liabilities to the Escrow Agent, in writing Agent for distribution of an intention such Final Claim Amount which shall be distributed pursuant to dispute the Escrow Claim(sAgreement. (c) and On the basis of such dispute twelve (a "Dispute Notice"). If Sellers' Representative does not take any action within the Notice Period, Sellers shall be deemed to have accepted full liability for such Escrow Claims. If the Sellers' Representative agrees that Sellers have an indemnification obligation but object in writing on the basis that they are obligated to pay only a lesser amount, then within two Business Days after Purchaser's receipt 12) month anniversary of the Sellers' Representative Closing, Seller Parent and Buyer Parent shall provide a joint written objection, and without prejudice instruction to Purchaser's claim for the difference, Sellers' Representative shall execute and deliver to Purchaser a certificate to be countersigned by Purchaser, to direct jointly the Escrow Agent to promptly disburse to Purchaser, Escrow Funds equal to the lesser amount. If the Sellers' Representative delivers a Dispute Notice in accordance with Section 9.6(b), Purchaser and Sellers' Representative shall attempt in good faith until thirty (30) days after receipt of any Dispute Notice to agree upon the rights of the respective parties with respect to each Escrow Claim. If Purchaser and Sellers' Representative should so agree, a memorandum setting forth such agreement shall be prepared and signed by the Sellers' Representative and Purchaser and Purchaser and Sellers' Representative shall also execute a certificate jointly directing the Escrow Agent to disburse promptly distribute to Seller Parent to the accounts designated in such Escrow Funds joint written instruction an amount equal to fifty percent (50%) of the difference between the then remaining balance in the manner set forth in Escrow Account and the aggregate amount of all unsatisfied bona fide claims for indemnification that the Buyer Indemnitees have made on or before the date of such certificate which twelve (12) month anniversary pursuant to this Article and which, under this Article, shall be consistent with satisfied by the terms Escrow Amount. (d) Upon the expiration of the twenty-four (24) month term of the Escrow Agreement, Buyer Parent and Seller Parent shall instruct the Escrow Agent to release to Seller Parent the difference between the then-remaining Escrow Amount and the aggregate amount of all unsatisfied bona fide claims for indemnification that the Buyer Indemnitees have made on or before the date of such memorandumtwenty-four (24) month anniversary date pursuant to this Article VIII and which, under this Article VIII, shall be satisfied by the Escrow Amount. If Purchaser and Sellers' Representative are unable Should any claim for indemnification be brought prior to agree within such thirty (30) day periodthe expiration of the term of the Escrow Agreement, then Escrow Funds valued at the such amount in dispute shall be retained remain in the Escrow Account until such dispute shall be resolved in accordance with Section 10.12. Promptly after such resolution, Purchaser either (i) Seller Parent and the Sellers' Representative shall execute and deliver Buyer Parent provide joint written instructions to the Escrow Agent a memorandum which directs the Escrow Agent to disburse to the applicable Indemnified Party such Funds in accordance with disputed amount, or (ii) Seller Parent or Buyer Parent may present a final non-appealable determination of Liabilities to the Escrow Agent for distribution of such resolution and the terms of disputed amount which shall be distributed pursuant to the Escrow Agreement.. Section 8.10
Appears in 1 contract
Samples: Master Purchase Agreement
