Escrow Funds. The Purchase Price Adjustment Escrow Fund shall be used solely for the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicable.
Appears in 3 contracts
Samples: Transaction Agreement (MSG Entertainment Spinco, Inc.), Transaction Agreement (MSG Entertainment Spinco, Inc.), Transaction Agreement (Madison Square Garden Co)
Escrow Funds. The Purchase Price Adjustment (a) EFS agrees that it shall direct the Escrow Fund Agent to distribute one hundred percent (100%) of any distributions under the Escrow Agreement to EFS, which shall pay, or cause to be used solely for paid, one hundred percent (100%) of any such distributions to Buyer without setoff against amounts that might be owing to EFS or Seller by Buyer until such time as EFS assigns the purposes set forth Escrow Agreement to Buyer. EFS shall have the right to assign the Escrow Agreement at any time to Buyer, provided that Buyer consents to such assignment in Section 2.14(c)(iwriting, such consent not to be unreasonably withheld or delayed.
(b) or 2.14(c)(ii). The Indemnity EFS will manage the escrow claims process under the Escrow Fund (collectively Agreement with the Purchase Price Adjustment Prior Owner, with reasonable consultation with Buyer. Buyer shall reimburse EFS for its proportionate share (such proportionate share to be determined in good faith by EFS and Buyer) of EFS’ reasonable out-of-pocket costs and expenses in managing such claims process with the Prior Owner. No settlement under the Escrow FundAgreement will be agreed to by EFS without the prior written approval of Buyer, such approval not to be unreasonably withheld or delayed.
(c) Buyer agrees that any and all Claims against, rights to xxx, other remedies or other recourse against Seller, EFS and their respective Affiliates and their respective stockholders, partners, members, directors, officers, manager, liquidators and employees (collectively, the “Escrow FundsEFS Released Persons”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance connection with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner management of the Escrow FundsAgreement are expressly released and waived by Buyer to the fullest extent permitted by law, as reduced and Buyer hereby agrees to indemnify and hold harmless each EFS Released Person from time to time by the amount and against any and all losses, damages, deficiencies, judgments, interest, awards, penalties, fines, costs or expenses of monies distributed from such Escrow Fund in accordance with this Agreement any kind, including reasonably attorneys’ fees and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment cost of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement enforcing any right of indemnification hereunder and the Escrow Agreement. The parties hereto further agree thatcost of pursuing any insurance providers arising out of any claim instituted against any EFS Released Person by any of Buyer’s respective Affiliates, for U.S. federal income Tax purposesstockholders, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 partners, members, directors, officers, managers, liquidators or employees arising out of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicablematters.
Appears in 3 contracts
Samples: Assignment and Equity Purchase Agreement, Assignment and Equity Purchase Agreement, Assignment and Equity Purchase Agreement (Arc Logistics Partners LP)
Escrow Funds. The Purchase Price Adjustment Trust shall deliver to the Escrow Fund Agent $90,000,000 by transfer of immediately available funds to an account designated in writing by the Escrow Agent to the Trust (the "Escrow Account"); provided, however, that, if prior to Closing Date (as defined in the Tax Matters Agreement), the Court has issued an order, which order shall be used solely in full force and effect, providing that, in connection with the liquidation, insolvency (or similar bankruptcy event), reorganization, termination, dissolution or winding up of the Trust, (i) the Trustees shall, prior to paying beneficiaries, creditors or possible claimants of the Trust, pay or cause to be paid from the Escrow Funds the amount of Taxes owed to the Internal Revenue Service and the other applicable taxing authorities (the "Escrow Funds Priority") and/or (ii) the Company shall have priority over beneficiaries, creditors or possible claimants of the Trust with respect to its claims for the purposes indemnification for Taxes set forth in Section 2.14(c)(i) the Tax Matters Agreement (the "Indemnification Priority"), the Trust shall only transfer to the Escrow Agent for deposit into the Escrow Account $30,000,000 (or 2.14(c)(ii$40,000,000 if the Escrow Funds Priority has been ordered but the Indemnification Priority has not been ordered). The Indemnity Company agrees that if the Escrow Fund (collectively with Funds Priority is granted by the Purchase Price Adjustment Escrow FundCourt after the date hereof, the “Trust shall be entitled to withdraw an amount of funds from the Escrow Funds”Account such that the remaining liquid assets, including, without limitation, cash and freely tradable securities (the "Liquid Assets"), in the Escrow Account shall have a fair market value of at least $40,000,000 (or at least $30,000,000 if the Indemnification Priority is also granted). The Trust further agrees that if both the Escrow Funds Priority and the Indemnification Priority are in effect, or if only the Escrow Funds Priority is in effect, it shall on or prior to the date that each quarterly tax payments are required to be made to the Internal Revenue Service, whether or not the Trust is required to make a payment on such date (a "Tax Payment Date"), deliver to the Escrow Agent for deposit in the Escrow Account Liquid Assets with a fair market value sufficient to cause the amount of Liquid Assets constituting the Escrow Funds (after taking into account the Taxes paid or required to be paid for such quarter) shall to have a fair market value of not less than 150% (or 200% if the Escrow Funds Priority has been ordered but the Indemnification Priority has not been ordered) of the greater of (i) the projected Taxes determined by the Trust in good faith to be used solely owed by the Trust for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date next succeeding four calendar quarters and (ii) terminate at 11:59 p.m. the Taxes paid by the Trust during any four consecutive calendar quarters within the immediately preceding eight calendar quarters (Eastern time) on such greater amount, the Expiration Date (other than with respect to claims made on or before the Expiration Date"Tax Amount"). Any The amounts deposited in the Indemnity Escrow Fund not so used (Account from time to time as contemplated above, together with all interest and other than amounts reserved subject income earned thereon, including, without limitation, any capital gains, is referred to pending claims made on or before herein as the Expiration Date and not then finally resolved in accordance with "Escrow Funds." The Escrow Funds shall be held by the Escrow Agreement) shall be distributed to the Member Representative Agent for the benefit of and distribution to the Members Trust as allocated at the direction of the Member Representative (provided in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the this Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicable.
Appears in 2 contracts
Samples: Tax Matters and Trust Relationship Agreement, Tax Matters and Trust Relationship Agreement (Johns Manville Corp /New/)
Escrow Funds. The Purchase Price Adjustment Escrow Fund shall be used solely Upon the occurrence of an Event of Default, after a domestic or foreign court issues any judgment or order restricting or prohibiting payment by the Issuing Lender under a Letter of Credit or extending the liability of the Issuing Lender to make payment under a Letter of Credit beyond the expiry date specified therein, or if otherwise specifically required pursuant to Section 14.3(n) or any other provision of this Agreement, the Borrower will forthwith pay to the Agent for deposit into a collateral account maintained for the purposes set forth in Section 2.14(c)(i) benefit of the Lenders, the Issuing Lender, the Hedge Lenders, the Cash Managers or 2.14(c)(iiany Non-Extending Lender, as applicable, an amount equal to such Lender(s). The Indemnity Escrow Fund ' maximum potential liability under then outstanding Bankers' Acceptances and Letters of Credit or such other amount specifically required by this Agreement, as applicable (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow AgreementSuch cash collateral account(s) shall be distributed assigned to the Member Representative for the benefit of and distribution to the Members Agent as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof security for, and the Escrow AgreementFunds will be held by the Agent for set-off against, indebtedness and obligations owing by the Borrower to the Lenders, the Issuing Lender, the Hedge Lenders, the Cash Managers or any Non-Extending Lender, as applicable, in respect of such Bankers' Acceptances, Letters of Credit, Hedge Indebtedness or Cash Management Obligations, as applicable, and the Agent is hereby irrevocably directed by the Borrower to so apply such cash collateral. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner Pending such set-off or release of the Escrow Funds (or, in the case of Section 14.3(n), as set out in clause (B) thereof), the Escrow Funds cannot be withdrawn by the Borrower and will bear interest at the rate payable by the Agent from time to time generally in respect of deposits for such amount, and for the period from the date of deposit to the earlier of the date of release thereof and the Maturity Date of the Bankers' Acceptances, the expiry of the Letters of Credit or the termination of such other obligation to provide such Escrow Funds, as reduced from time to time by applicable. If such Event of Default is either waived or cured in compliance with the amount terms of monies distributed from such Escrow Fund in accordance with this Agreement and (or, in the case of part (B) of the last sentence in Section 14.3(n), the Excess Exposure is reduced to the extent required therein), then the remaining Escrow Funds deposited as a consequence of such Event of Default (or, in the case of Section 14.3(n), that portion of the Escrow Agreement, and that all interest on or other taxable incomeFunds required to be released by part (B) of the last sentence thereof), if any, earned from together with any accrued interest thereon to the investment date of release will be returned to the Borrower. The deposit of the Escrow Amount shall be treated for Tax purposes Funds by the Borrower with the Agent as earned by Parent until herein provided will not operate as a repayment of the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposesAggregate Principal Amount, the payments received by Hedge Indebtedness or the Members from Cash Management Obligations, as applicable, until such time as the Escrow Funds are intended actually paid to constitute installment payments from an installment sale described in Section 453 of the CodeLenders, a portion of which may be treated as imputed interest under the CodeIssuing Lender, unless the Members make an election pursuant to Section 453(d) of Hedge Lenders, the Code, and the parties hereto shall report consistently with such treatmentCash Managers or any Non-Extending Lender, as applicable.
Appears in 2 contracts
Samples: Credit Agreement (Harvest Operations Corp.), Credit Agreement (Harvest Operations Corp.)
Escrow Funds. The Purchase Price Adjustment (a) Escrow Fund Agent shall be used solely for retain custody of the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow FundFunds and, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved except in accordance with this Section 6, shall make no payments or other dispositions of the Escrow AgreementFunds from the Escrow Account unless and until it is authorized and directed to do so pursuant to instructions in writing duly executed by Purchaser and each Seller, including any necessary wire transfer or other instructions for payment (a “Joint Written Direction”).
(b) Following delivery to Escrow Agent at any time and from time to time of a Joint Written Direction setting forth the amount of the payment to be made to Purchaser (the “Payment Amount”), Escrow Agent shall be distributed disburse to Purchaser from the Escrow Funds an amount in cash equal to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and Payment Amount in accordance with the terms hereof and of such Joint Written Direction within three (3) calendar days of delivery of such Joint Written Direction.
(c) On the date that is the twelve (12) month anniversary of the Closing Date, or if such date is not a Business Day, the first Business Day after such date (the “Release Date”), Escrow Agent shall automatically release from the Escrow Agreement. The parties hereto agree thatFunds in the Escrow Account to Sellers an amount in cash equal to (i) the Escrow Amount minus (ii) the aggregate amount of payments made to Purchaser or any Purchaser Indemnified Party prior to the Release Date, for Tax reporting purposesminus (iii) the aggregate Estimated Reserve Amounts of all Claims notified to Sellers and Escrow Agent pursuant to Section 5 that remain unresolved and unpaid prior to the Release Date (each, Parent an “Unresolved Claim”); provided, however, that if the foregoing formula produces zero or a negative number then no release from the Escrow Account shall be deemed made pursuant to be this Section 6.
(d) After the owner of the Release Date, if an Unresolved Claim reaches a Final Determination, following delivery to Escrow Funds, as reduced Agent at any time and from time to time by of a Joint Written Direction setting forth (i) the amount of monies distributed from Payment Amount required to be paid to Purchaser pursuant to such Escrow Fund Final Determination in accordance with this Agreement Section 6(b) above and (ii) the amount (if any) by which the Estimated Reserve Amount exceeded the Payment Amount with respect to such Claim (the “Excess Reserve Amount”), Escrow AgreementAgent will disburse to Purchaser an amount equal to the Payment Amount, and that all interest on or other taxable income, shall release to Sellers an amount in cash equal to the Excess Reserve Amount (if any), earned from within three (3) calendar days of delivery.
(e) Promptly after a Final Determination has occurred with respect to all Unresolved Claims and all Payment Amounts in respect of all such Claims shall have been paid in full, Escrow Agent shall automatically release to Sellers the investment of the remaining Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableAccount Balance.
Appears in 2 contracts
Samples: Escrow Agreement (Concordia Healthcare Corp.), Escrow Agreement
Escrow Funds. The Purchase Price Adjustment Company shall act in accordance with, and the Escrow Fund Agent shall be used solely for hold and release the purposes set forth Escrow Funds related to a Purchaser as provided in this Section 2.14(c)(i4(a) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall as follows:
(i) be used solely for The Company agrees to direct the same purposes as Escrow Agent on the Purchase Price Adjustment date hereof by Release Instruction, to disburse all of the Escrow Fund and Funds to satisfy any claims of a Parent Indemnitee for indemnification the Company on the date hereof, pursuant to Section 12.02(a2.1 of the Loan and Security Agreement. Upon receipt of a Release Instruction with respect to the Initial Purchase Price, the Escrow Agent shall promptly, but in any event within two (2) Business Days after receipt of a Release Instruction, disburse all or Section 12.02(b) made from and after Closing but on or before part of the Expiration Date and Initial Purchase Price in accordance with such Release Instruction.
(ii) terminate at 11:59 p.m. Following the Effective Date, upon receipt of one or more additional deposits from certain Additional Purchasers (Eastern time) on any such additional deposit, an “Additional Deposit”), the Expiration Date (other than with respect Company agrees to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with direct the Escrow Agreement) shall be distributed Agent, upon submission of a Release Instruction, pursuant to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the Loan and Security Agreement, to disburse the Escrow Funds to the Company. The Company shall notify the Escrow Agent of such Additional Deposit as soon as such amounts are known. Upon receipt of a Release Instruction with respect to any Additional Deposit, the Escrow Agent shall promptly, but in any event within two (2) Business Days after receipt of a Release Instruction, disburse all or part of the Additional Deposit in accordance with such Release Instruction.
(iii) Upon receipt by the Escrow Agent of a copy of a Final Determination from the Company, the Escrow Agent shall on the fifth (5th) Business Day following receipt of such determination, disburse as directed, part or all, as the case may be, of the applicable Escrow Funds (but only to the extent funds are available in the Escrow Funds) in accordance with such Final Determination. The Escrow Agent will act on such Final Determination without further inquiry.
(iv) All payments of any part of the Escrow Funds shall be made by wire transfer of immediately available funds or check as set forth in the Release Instruction or Final Determination, as applicable. Any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of any funds on deposit in the Escrow Account under the terms hereof of this Agreement must be in writing, executed on behalf the Company by a Representative as set forth on Exhibit A attached hereto, and delivered to the Escrow Agent as an attachment to an e-mail received on a Business Day sent to the e-mail address set forth in Section 11 below (with receipt by the Escrow Agent confirmed). In the event any instruction is delivered to the Escrow Agent, the Escrow Agent is authorized to seek confirmation of such instruction by telephone call back to the person or persons designated on Exhibit A annexed hereto (the “Call Back Authorized Individuals”), and the Escrow AgreementAgent may rely upon the confirmations of anyone purporting to be a Call Back Authorized Individual. To assure accuracy of the instructions it receives, the Escrow Agent may record such call backs. If the Escrow Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The parties hereto agree thatpersons and telephone numbers for call backs may be changed only in writing, for Tax reporting purposesexecuted by a Representative, Parent shall be deemed to be the owner of actually received and acknowledged by the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableAgent.
Appears in 1 contract
Escrow Funds. The Purchase Price Adjustment Escrow Fund shall be used solely for Upon the purposes set forth in Section 2.14(c)(i) occurrence of an Event of Default, after a domestic or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with foreign court issues any judgment or order restricting or prohibiting payment by the Purchase Price Adjustment Escrow FundIssuing Lender under a Letter of Credit or extending the liability of the Issuing Lender to make payment under a Letter of Credit beyond the expiry date specified therein, or if otherwise specifically required pursuant to this Agreement, the “Escrow Funds”Borrower will forthwith pay to (a) shall (i) be used solely the Agent for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of deposit into a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative collateral account maintained for the benefit of the Lenders, the Issuing Lender or any Non-Extending Lender, as applicable, an amount equal to such Lender(s)' maximum potential liability under then outstanding Bankers' Acceptances and distribution Letters of Credit (the "Escrow Funds"). The Escrow Funds will be held by the Agent for set-off against future indebtedness owing by the Borrower to the Members Lenders, the Issuing Lender or any Non-Extending Lender, as allocated applicable, in respect of such Bankers' Acceptances or Letters of Credit, and pending such application will bear interest at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined rate payable by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced Agent from time to time by generally in respect of deposits for such amount, and for the amount period from the date of monies distributed from such Escrow Fund in accordance with this Agreement deposit to the earlier of the date of release thereof and the Escrow Maturity Date of the Bankers' Acceptances or the expiry of the Letters of Credit. If such Event of Default is either waived or cured in compliance with the terms of this Agreement, and that all interest on or other taxable incomethen the remaining Escrow Funds, if any, earned from together with any accrued interest to the investment date of release will be returned to the Borrower. The deposit of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received Funds by the Members from Borrower with the Agent as herein provided will not operate as a repayment of the Aggregate Principal Amount until such time as the Escrow Funds are intended actually paid to constitute installment payments from an installment sale described in Section 453 of the CodeLenders, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatmentIssuing Lender or any Non-Extending Lender, as applicable.
Appears in 1 contract
Escrow Funds. The Purchase Price Adjustment Escrow Fund shall be used solely for the purposes set forth in Section 2.14(c)(i(a) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with Amount and the Purchase Price Adjustment Escrow FundAmount (collectively, the “Escrow Funds”) shall (i) be used solely for held by the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved Exchange Agent in accordance with the terms of this Agreement and the terms of the Escrow Agreement) . Subject to the terms of the Escrow Agreement, the Escrow Funds shall be distributed held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of the Exchange Agent or any of the other parties to the Member Representative for the benefit of Escrow Agreement, and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof of this Agreement and the terms of the Escrow Agreement. The parties hereto agree thatAny amounts held of the Adjustment Escrow Amount following the Final Adjustment Amount Determination Date shall be released to the Exchange Agent, for Tax reporting purposespayment to the Participating Securityholders in the manner contemplated by Section 3.6(d), five (5) Business Days following the date on which, as applicable, (i) full and final payment is made of any Final Adjustment Amount payable to Parent pursuant to Section 3.6(d) or (ii) a final determination is made pursuant to Section 3.6(d), if any, that no Adjustment Amount is payable to Parent (the “Adjustment Escrow Expiration Date”).
(b) The Lime Representative and Parent shall, not later than three (3) Business Days after the Adjustment Escrow Expiration Date, deliver to the Exchange Agent a joint written direction, and the Lime Representative shall deliver to Parent and the Exchange Agent an updated Closing Payment Schedule (which need not be certified by an officer of the Surviving Corporation) setting forth the portion of any distribution of the Adjustment Escrow Amount payable to each Participating Securityholder. Each distribution of cash made from the Adjustment Escrow Amount to each of the Participating Securityholders shall be made in proportion to the respective Pro Rata Fractions of the Participating Securityholders at the time of such distribution.
(c) If there are no outstanding claims or notices of claims, in each case made or given in accordance with Article VIII, for indemnification by any Parent Indemnitee that would be payable from the Indemnity Escrow Account on the date that is fifteen (15) months after the Closing Date (the “Indemnity Escrow Termination Date”), then the Lime Representative and Parent shall be deemed promptly (but in any event within two (2) Business Days after the Indemnity Escrow Termination Date) deliver to the Exchange Agent a joint release instruction for release of any remaining amount in the Indemnity Escrow Account to the Participating Securityholders (in accordance with their respective Pro Rata Fractions of such released amounts) in accordance with the terms of the Escrow Agreement; provided, however, that with respect to a Participating Securityholder that is a holder of Exercisable Lime Options, such instruction shall direct the amount payable to such Participating Securityholder with respect to such Exercisable Lime Options to be paid to the owner Surviving Corporation, which shall promptly pay such amount to such Participating Securityholder through the Surviving Corporation’s payroll system on the first normal payroll date following such release.
(d) If there are outstanding claims or notices of claims, in each case made or given in accordance with Article VIII, for indemnification by any Parent Indemnitee that would be payable from the Indemnity Escrow Account as of the Indemnity Escrow Termination Date, then Parent and the Lime Representative shall promptly (but in any event within two (2) Business Days after the Indemnity Escrow Termination Date) deliver to the Exchange Agent a joint release instruction for payment of an amount equal to (x) the amount of any remaining amounts in the Indemnity Escrow Account to the Participating Securityholders in the manner contemplated by Section 3.7(c), less (y) the disputed amount corresponding to each such outstanding claims, in accordance with the Escrow Agreement; provided, that the remaining balance of any amount withheld with respect to each outstanding claim shall be released to the Participating Securityholders (in accordance with their respective Pro Rata Fractions of such released amounts) in the manner contemplated by Section 3.7(c) (i) upon resolution and final satisfaction of each such outstanding claim in accordance with Article VIII and set forth in a joint release instruction delivered by Parent and Lime Representative to the Exchange Agent (which shall be given promptly after the date of such resolution) and (ii) thereafter, upon delivery by Parent and Lime Representative of a joint release instruction to the Exchange Agent for payment of any remaining amounts in the Indemnity Escrow Account, in each case in accordance with the Escrow Agreement.
(e) Any income, gains, losses and expenses of the Escrow Funds shall be included by Parent as taxable income or loss of Parent to the extent allowed under the Code and related Treasury Regulations, and any income and gains of the Escrow Funds shall be available to Parent as part of the Escrow Funds, as reduced from time but if not paid to time by the amount of monies distributed from such Escrow Fund Parent in connection with an Adjustment Amount in accordance with this Agreement and Section 3.6 shall ultimately be distributable to the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed Participating Securityholders in accordance with this Agreement and the Escrow Agreement. Parent shall be entitled to a distribution each calendar quarter equal to the product of the amount of any income and gains allocated to Parent for such quarter multiplied by 30%.
(f) The approval of this Agreement by written consent in lieu of a meeting of Lime stockholders, and the acceptance of a portion of the Merger Consideration by the Participating Securityholders, shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including the placement of the Indemnity Escrow Amount and the Adjustment Escrow Amount in the Escrow Funds in accordance with the terms hereof and thereof.
(g) The parties hereto further agree that, for U.S. federal income Tax purposes, the to treat any payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election made pursuant to Section 453(d) of 3.6 or Article VIII as adjustments to the Code, and Merger Consideration for all Tax purposes to the parties hereto shall report consistently with such treatment, as applicablemaximum extent permitted by applicable Law.
Appears in 1 contract
Escrow Funds. The Purchase Price Adjustment (a) As of the Closing Date, Buyer, the Escrow Agent and Seller shall execute and deliver the Escrow Agreement in substantially the form attached hereto as Exhibit B (the “Escrow Agreement”), and Buyer shall deposit with the Escrow Agent (a) an amount equal to the Indemnity Escrow Fund shall be used solely for the purposes purpose of securing certain of the indemnification obligations set forth in ARTICLE X and ARTICLE XI of this Agreement and (b) an amount equal to the Purchase Price Escrow Fund solely for the purpose of securing certain adjustment payments set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims 2.8 of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring this Agreement. The Indemnity Escrow Fund Funds shall be held by the Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Escrow Funds shall be held in trust and shall not be subject to any Lien, attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and of the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be .
(b) On (i) the owner second anniversary of the Escrow FundsClosing Date (the “Initial Valuation Date”), (ii) at the election of Seller upon 75 days’ prior written notice to Buyer, the third anniversary of the Closing Date (the “Optional Valuation Date”), and (iii) at the election of the Seller upon 75 days’ prior written notice to Buyer, one of the fourth, fifth or sixth anniversaries of the Closing Date (as reduced from time so elected, the “Final Valuation Date”, and each of the Initial Valuation Date, the Optional Valuation Date and the Final Valuation Date, a “Valuation Date”), an amount equal to time by (x) the aggregate amount of monies distributed from such funds (if any) remaining in the Indemnity Escrow Fund as of such date, minus (y) the Fair Value of any amounts timely claimed pursuant to Section 10.1 and/or ARTICLE XI and pending as of such date (determined in accordance with this Agreement Section 2.7(b)) shall be distributed from the Indemnity Escrow Fund and delivered to Seller; provided, that such amount shall not be reduced to an amount less than zero. For purposes of this Section 2.7(b), the “Fair Value” of any claims pending as of any Valuation Date shall mean (i) with respect to PL Claims, the reasonably expected aggregate value of all such claims plus related legal fees and expenses (taking into account the number and types of claims in question, likelihood of settlement or trial verdict, identity of plaintiffs, severity of injuries and historical settlement values of similarly situated plaintiffs) as determined by a panel of arbitrators experienced in valuing claims of the type in question that is comprised of one representative designated by Buyer, one representative designated by Seller and one representative designated by Buyer’s and Seller’s respective representatives in accordance with the rules of American Arbitration Association, each of whom shall be an attorney, and (ii) with respect to all other claims, the aggregate amount of any claims pending as of such date (determined on the basis of the amounts set forth on the Third Party Claim Notices, Claim Notices and Tax Claim Notices relating thereto, in each case, delivered by Buyer). Buyer and Seller shall cause the arbitration panel to be determined at least sixty (60) days prior to the applicable Valuation Date and shall instruct such arbitration panel to make its determination of Fair Value prior to the applicable Valuation Date. The arbitration panel shall be provided with reasonable access to Buyer and Seller and their respective counsel with respect to the claims being valued and the Escrow AgreementFair Value of such claims determined by the arbitration panel will be conclusive and binding upon the parties hereto and will constitute the “Fair Value” for the purposes hereof. The fees and expenses of the arbitration panel with respect to (A) the Initial Valuation Date and the Final Valuation Date shall be paid one-half (1/2) by Buyer and one-half (1/2) by Seller, and (B) the Optional Valuation Date, to the extent applicable, shall be paid entirely by Seller. After the Final Valuation Date has occurred, concurrent with any payments to Seller made in connection therewith, an amount equal to that all interest which was attributed to clause (i) of the definition of Fair Value as finally determined on the Final Valuation Date shall be released to Buyer (with any amounts remaining in the Indemnity Escrow Fund thereafter to be released in accordance with and to the extent of the final determination of each claim (or other taxable incomeportion thereof) set forth in the applicable Third Party Claim Notices, if any, earned Claim Notices and Tax Claim Notices). Upon release of any amounts from the investment of the Indemnity Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed Fund to Seller in accordance with this Agreement Section 2.7(b), all rights of Buyer with respect to such distributed portion of the Indemnity Escrow Fund shall terminate. Buyer and Seller shall deliver joint written instructions to the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from Agent instructing the Escrow Funds are intended Agent to constitute installment payments from an installment sale described in Section 453 of deliver to Seller or Buyer, as the Codecase may be, a portion of which may be treated as imputed interest under the Code, unless the Members make an election any amounts due to Seller pursuant to the this Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicable2.7(b).
Appears in 1 contract
Samples: Stock Purchase Agreement (Endo Pharmaceuticals Holdings Inc)
Escrow Funds. There may be Periodic Payments due under this Deed of Trust, until such time as the Principal Amount has been paid in full, and there is no longer any money owing. As such, the Borrower herein agrees to pay to the Lender, ________________________, additional monies (the "Escrow Funds") to provide for the payment of the following "Escrow Items": Any and all yearly property and/or schools taxes, assessments or other items, which are considered a priority over this Deed of Trust as an encumbrance and/or lien on the Property; Lease Payment, if any, which may be associated with the Property; Payment for any and all insurance premiums related with the Property, including but not limited to, Mortgage Insurance which may be required by the Lender. It is the responsibility of the Borrower to ensure that the Lender is made aware of any and all monies that require payments with regards to this Section. Upon the request of the Lender, the Borrower shall provide any receipts, bills, and/or invoices verifying or validating such payments to the Lender. Should the Borrower fail to make said payments in a timely manner, the Lender, at its discretion, make any and all past due payments of the aforementioned "Escrow Items," and as such, the Borrower shall then be obligated to repay the Lender for any such amount paid. The Purchase Price Adjustment Lender shall have the option to waive any of the Borrower's obligations to repay monies to the Lender for any and all "Escrow Fund Items" as it may deem fit by providing to the Borrower written notice of said waiver. If the Lender provides no such waiver, it then becomes the responsibility of the Borrower to make immediate payment directly to the Lender, when and where payable as designated by the Lender, for the full amount due for any and all Escrow Items. Should the Borrower be obligated to ensure payment of "Escrow Items" directly, and said Borrower fails to ensure such payments are made in a timely fashion, then the Lender reserves the right under this Section to make payment for such amounts and Borrower shall be used solely obligated to repay the Lender for any such amount. It is the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with responsibility of the Purchase Price Adjustment Escrow Fund, the “Borrower to collect and deposit "Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved " in accordance with the Escrow Agreement) Real Estate Settlement Procedures Act ("RESPA"). The Lender shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction provide an estimate of the Member Representative (amount of the "Escrow Funds" due in accordance with Annex D) on applicable State and/or Federal Law. Should there be a surplus of funds held in escrow, as defined in the next Business Day after RESPA, the Expiration Date or as otherwise determined by Lender shall then provide to the Member Representative Borrower the excess funds in accordance with the Restructuring AgreementRESPA guidelines. The Indemnity Escrow Fund However, should there be a deficiency of said funds held in escrow, then the Lender shall be held and disbursed solely for immediately notify the respective purposes and Borrower in accordance with the terms hereof writing of such deficiency and the Borrower, at that time, must make immediate payment to the Lender any amount necessary to offset the deficiency. Once payment has been made in full of all "Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent Items," the Lender shall be deemed then promptly refund to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of Borrower any excess funds which may be treated as imputed interest under held by the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableLender.
Appears in 1 contract
Samples: Deed of Trust
Escrow Funds. The Purchase Price Adjustment Parties shall act in accordance with, and the Escrow Fund Agent shall hold and release the Escrow Funds as provided in, this Section 4(a) as follows:
(i) Immediately after the occurrence of the Effective Time pursuant to the Merger Agreement and upon receipt of a Joint Release Instruction stating the same, the Escrow Agent shall disburse the Escrow Funds to the Paying Agent pursuant to the instructions set forth on Exhibit B; provided, however that if the Merger Agreement is terminated in accordance with Article VIII of the Merger Agreement and the Effective Time does not occur, then the Escrow Agent shall disburse the Escrow Funds to the Parent following such termination pursuant to a Joint Release Instruction and the instructions set forth on Exhibit C.
(ii) Notwithstanding the foregoing, at any time, the Parties shall act in accordance with, and the Escrow Agent shall have the right to release the Escrow Funds as follows:
(A) Upon receipt of a Joint Release Instruction with respect to the Escrow Funds, the Escrow Agent shall promptly, but in any event within two (2) Business Days after receipt of a Joint Release Instruction, disburse all or part of the Escrow Funds in accordance with such Joint Release Instruction.
(B) Upon receipt by the Escrow Agent of a copy of Final Determination from any Party, the Escrow Agent shall on the fifth (5th) Business Day following receipt of such determination, disburse as directed, part or all, as the case may be, of the Escrow Funds (but only to the extent funds are available in the Escrow Funds) in accordance with such Final Determination. The Escrow Agent will act on such Final Determination without further inquiry.
(C) All payments of any part of the Escrow Funds shall be used solely for made by wire transfer of immediately available funds or check as set forth in the purposes Joint Release Instruction or Final Determination, as applicable.
(D) Any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of any funds on deposit in any Escrow Account under the terms of this Agreement must be in writing, executed by the appropriate Party or Parties as evidenced by the signatures of the person or persons set forth on Exhibit A-1 and Exhibit A-2 and delivered to the Escrow Agent either (i) by confirmed facsimile only at the fax number set forth in Section 2.14(c)(i11 below (and receipt by the Escrow Agent confirmed) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. attached to an e-mail received on a Business Day from an e-mail address set forth in Section 11 (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with receipt by the Escrow AgreementAgent confirmed) shall be distributed below. In the event a Joint Release Instruction or Final Determination is delivered to the Member Representative for Escrow Agent, whether in writing, by facsimile or otherwise, the benefit Escrow Agent is authorized to seek confirmation of and distribution such instruction by telephone call back to the Members as allocated at person or persons designated in Exhibit A-1 and/or A-2 annexed hereto (the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof “Call Back Authorized Individuals”), and the Escrow AgreementAgent may rely upon the confirmations of anyone purporting to be a Call Back Authorized Individual. To assure accuracy of the instructions it receives, the Escrow Agent may record such call backs. If the Escrow Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The parties hereto agree thatpersons and telephone numbers for call backs may be changed only in writing, for Tax reporting purposesexecuted by an authorized representative of applicable Party set forth on Exhibit A-1 or Exhibit A-2, Parent shall be deemed to be the owner of actually received and acknowledged by the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableAgent.
Appears in 1 contract
Samples: Escrow Agreement (Thestreet, Inc.)
Escrow Funds. The Purchase Price Adjustment Escrow Fund shall be used solely for the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund Funds shall be held and disbursed solely for by the respective purposes and Paying Agent in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree thatEscrow Funds shall be disbursed at the direction of the Parent and the Stockholders’ Representative in accordance with Section 3.3, for U.S. federal income Tax purposesthis Section 3.4 or Section 7.8. Promptly following such disbursement, the payments Paying Agent shall disburse the balance of the Escrow Funds then remaining to the Company Holders (or, in the case of a holder of Company Stock Options, to the Surviving Corporation to be paid to such holder of Company Stock Options through the payroll process of the Surviving Corporation (or any third party payroll agent of the Surviving Corporation or Affiliate of the Surviving Corporation designated by Parent) in accordance with applicable payroll procedures) pro rata in accordance with their respective Pro Rata Percentages as a portion of the Merger Consideration payable to the Company Holders; provided that the balance of the Escrow Funds shall not be so disbursed prior to the six-month anniversary of the Closing Date (such date, the “Escrow Expiration Date”) without Parent’s prior written consent. Promptly following the Escrow Expiration Date, the Paying Agent shall disburse the balance of the Escrow Funds then remaining to the Company Holders (or, in the case of a holder of Company Stock Options, to the Surviving Corporation to be paid to such holder of Company Stock Options through the payroll process of the Surviving Corporation (or any third party payroll agent of the Surviving Corporation or Affiliate of the Surviving Corporation designated by Parent) in accordance with applicable payroll procedures) (less the maximum aggregate amount of the Escrow Funds that would be required to satisfy in full any and all outstanding claims received by the Members from Escrow Agent on or prior to the Escrow Funds are intended to constitute installment payments from an installment sale described Expiration Date in Section 453 accordance with the Escrow Agreement that remain pending and unresolved (or resolved but unpaid) as of the Code, Escrow Expiration Date) pro rata in accordance with their respective Pro Rata Percentages as a portion of which may be treated as imputed interest under the CodeMerger Consideration payable to the Company Holders. Notwithstanding anything to the contrary in this Agreement, unless the Members make an election Parent’s and Sub’s sole recourse for payment of any amounts due to Parent pursuant to Section 453(d) 3.3, this Section 3.4 or Section 7.8 shall be to the Escrow Account and neither Parent nor Sub or any of their respective Affiliates shall have any claim against the CodeCompany, the Stockholders’ Representative or any of their respective Affiliates in respect of such amounts. The Parent shall pay, or cause to be paid, all fees and expenses payable to the parties hereto shall report consistently Paying Agent in connection with such treatment, as applicableits services pursuant to this Agreement.
Appears in 1 contract
Escrow Funds. The Purchase Price Adjustment (a) Each Investor will be instructed by the Company to remit to the Company, a predetermined cash deposit (the “Cash Deposit”), as indicated on the applicable Subscription Agreement (as defined below), in the form of a check, draft, wire or ACH payable to the order of “Enterprise Bank & Trust, as Escrow Fund shall be used solely Agent for “Mivium, Inc”. Following receipt by the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow FundCompany of an Investor’s Cash Deposit, the “Escrow Funds”) shall Company will promptly: (i) send to the Escrow Agent the Investor’s name, address, executed IRS Form W-9 and total purchase price to be used solely remitted for the same purposes as Shares to be purchased by the Investor (the “Total Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date Price”), and (ii) terminate at 11:59 p.m. remit to the Escrow Agent the Cash Deposit. Escrow Agent shall promptly deposit the Cash Deposit into the Escrow Account, which deposit shall occur within two (Eastern time2) on business days after the Expiration Date Escrow Agent’s receipt of the Cash Deposit.
(b) On or prior to the consummation of the Offering, each Investor may be further instructed by the Company to remit directly to the Escrow Agent an amount equal to the difference between such Investor’s Total Purchase Price and the amount of such Investor’s Cash Deposit, in the form of a check, draft, wire or ACH payable to the order of “Enterprise Bank & Trust, as Escrow Agent” for the Company.
(c) Escrow Agent shall have no obligation to accept Escrow Funds or documents from any party other than with respect to claims made on the Investors or before the Expiration Date)Company. Any amounts checks that are made payable to a party other than the Escrow Agent shall be returned to the party submitting the check, and if received by the Company shall not be remitted to the Escrow Agent. Proceeds in the Indemnity form of wire or other electronic funds transfers are deemed deposited into the Escrow Fund Account and considered “Collected Funds” when received by the Escrow Agent. Any Proceeds deposited in the form of a check, draft or similar instrument are deemed deposited when the collectability thereof has been confirmed; after such time, such Proceeds are considered “Collected Funds.” The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. Should any check be deemed uncollectible for any reason, the Escrow Agent will notify the Company of the amount of such return check, the name of the Investor and the reason for return and return the check to the Investor.
(d) Escrow Agent will hold all Escrow Funds in escrow, free from any liens, claims or offsets, and such monies shall not so used (other than amounts reserved become the property of the Company, the Investor or any Soliciting Dealer, nor shall such monies become subject to pending claims made on the debts thereof or before the Expiration Date debts of the Escrow Agent, unless and not then finally resolved until the conditions set forth in these instructions to disbursement of such monies have been fully satisfied.
(e) The Escrow Funds shall be disbursed by the Escrow Agent from the Escrow Account by wire transfer or by a check payable to the appropriate payee(s) in accordance with the provisions of this Agreement.
(f) Escrow Agreement) Agent shall not be required to take any action under this Section 1.3 or any other section hereof until it has received proper written instruction from the Company. Such written instruction shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member signed by an Authorized Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(ddefined below) of the CodeCompany. Except as otherwise expressly contemplated herein, all parties hereby direct and instruct Escrow Agent to accept any payment or other instructions provided by the Company, and Escrow Agent shall have no duty or obligation to authenticate such payment or other instructions or the parties hereto authorization thereof. The Escrow Agent shall report consistently with such treatment, as applicablenot be required to release any funds that constitute Escrow Funds unless the funds represented thereby are Collected Funds.
Appears in 1 contract
Escrow Funds. (a) The Purchase Price Adjustment Escrow Fund Funds shall be used solely available to the Parent Indemnified Parties for the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fundamounts due and owing within this ARTICLE VII, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and well as to satisfy pay Parent any claims of a Parent Indemnitee for indemnification adjustments required pursuant to Section 12.02(a2.19, subject in each case to the terms and conditions of the Escrow Agreement.
(b) or Section 12.02(bWithin five (5) made from and after Closing but on or before Business Days following the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than Date, with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before Account, the Expiration Date and not then finally resolved in accordance with Parties shall cause the Escrow Agreement) shall be distributed Agent to distribute to the Member Representative for the benefit of and further distribution to the Members as allocated at Unitholders and Warrantholder, the direction excess, if any, of the remaining portion of the Indemnity Escrow Account, over the aggregate amount of all Losses specified in any then-unresolved indemnification claims (the “Pending Claims”) made by any Parent Indemnified Party pursuant to this ARTICLE VII.
(c) Promptly after all Pending Claims have been resolved and satisfied, the Member Representative (in accordance with Annex D) on and Parent shall deliver joint instructions to the next Business Day after the Expiration Date or as otherwise determined by Escrow Agent to distribute to the Member Representative for further distribution to the Unitholders and Warrantholders the remaining portion of the Indemnity Escrow Account not required to satisfy such claims in accordance with the Restructuring Agreement. The Consideration Spreadsheet.
(d) Without limiting the foregoing, Parent and the Member Representative agree to promptly deliver joint instructions to the Escrow Agent to distribute to Parent or to the Member Representative for further distribution to the Unitholders and Warrantholders amounts out of the Indemnity Escrow Fund shall be held Account to which any Parent Indemnified Party or the Unitholders and disbursed solely for the respective purposes and Warrantholders are entitled in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned .
(e) Distributions from the investment of Indemnity Escrow Account to the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with Unitholders and Warrantholders pursuant to this Agreement Section 7.10 and the Escrow Agreement. The parties hereto further agree thatAgreement (such distributions, for U.S. federal income Tax purposescollectively, the payments received by “Escrow Release Amount”) shall be made to (or to the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 Member Representative for further distribution to) each of the Code, a portion Unitholders and Warrantholders in proportion to such Unitholder’s and Warrantholder’s Pro Rata Share of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableEscrow Release Amount.
Appears in 1 contract
Escrow Funds. The Purchase Price Adjustment Trust shall deliver to the Escrow Fund Agent $90,000,000 by transfer of immediately available funds to an account designated in writing by the Escrow Agent to the Trust (the "Escrow Account"); provided, however, that, if prior to the Closing Date (as defined in the Merger Agreement), the Court has issued an order, which order shall be used solely in full force and effect, providing that, in connection with the liquidation, insolvency (or similar bankruptcy event), reorganization, termination, dissolution or winding up of the Trust, (i) the Trustees shall, prior to paying beneficiaries, creditors or possible claimants of the Trust, pay or cause to be paid from the Escrow Funds the amount of Taxes owed to the Internal Revenue Service and the other applicable taxing authorities (the "Escrow Funds Priority") and/or (ii) the Company shall have priority over beneficiaries, creditors or possible claimants of the Trust with respect to its claims for the purposes indemnification for Taxes set forth in Section 2.14(c)(i) the Tax Matters Agreement (the "Indemnification Priority"), the Trust shall only transfer to the Escrow Agent for deposit into the Escrow Account $30,000,000 (or 2.14(c)(ii$40,000,000 if the Escrow Funds Priority has been ordered but the Indemnification Priority has not been ordered). The Indemnity Company agrees that if the Escrow Fund (collectively with Funds Priority is granted by the Purchase Price Adjustment Escrow FundCourt after the date hereof, the “Trust shall be entitled to withdraw an amount of funds from the Escrow Funds”Account such that the remaining liquid assets, including, without limitation, cash and freely tradable securities (the "Liquid Assets"), in the Escrow Account shall have a fair market value of at least $40,000,000 (or at least $30,000,000 if the Indemnification Priority is also granted). The Trust further agrees that if both the Escrow Funds Priority and the Indemnification Priority are in effect, or if only the Escrow Funds Priority is in effect, it shall on or prior to the date that each quarterly tax payments are required to be made to the Internal Revenue Service, whether or not the Trust is required to make a payment on such date (a "Tax Payment Date"), deliver to the Escrow Agent for deposit in the Escrow Account Liquid Assets with a fair market value sufficient to cause the amount of Liquid Assets constituting the Escrow Funds (after taking into account the Taxes paid or required to be paid for such quarter) shall to have a fair market value of not less than 150% (or 200% if the Escrow Funds Priority has been ordered but the Indemnification Priority has not been ordered) of the greater of (i) the projected Taxes determined by the Trust in good faith to be used solely owed by the Trust for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date next succeeding four calendar quarters and (ii) terminate at 11:59 p.m. the Taxes paid by the Trust during any four consecutive calendar quarters within the immediately preceding eight calendar quarters (Eastern time) on such greater amount, the Expiration Date (other than with respect to claims made on or before the Expiration Date"Tax Amount"). Any The amounts deposited in the Indemnity Escrow Fund not so used (Account from time to time as contemplated above, together with all interest and other than amounts reserved subject income earned thereon, including, without limitation, any capital gains, is referred to pending claims made on or before herein as the Expiration Date and not then finally resolved in accordance with "Escrow Funds." The Escrow Funds shall be held by the Escrow Agreement) shall be distributed to the Member Representative Agent for the benefit of and distribution to the Members Trust as allocated at the direction of the Member Representative (provided in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the this Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicable.
Appears in 1 contract
Samples: Tax Matters and Amended Trust Relationship Agreement (Johns Manville Corp /New/)
Escrow Funds. The Purchase Price Adjustment Escrow Fund shall be used solely Upon the occurrence of an Event of Default, after a domestic or foreign court issues any judgment or order restricting or prohibiting payment by the Issuing Lender under a Letter of Credit or extending the liability of the Issuing Lender to make payment under a Letter of Credit beyond the expiry date specified therein, or if otherwise specifically required pursuant to this Agreement, the Borrower will forthwith pay to (a) the Agent for deposit into a collateral account maintained for the purposes set forth in Section 2.14(c)(i) benefit of the Lenders, the Issuing Lender or 2.14(c)(iiany Non-Extending Lender, as applicable, an amount equal to such Lender(s). The Indemnity Escrow Fund ' maximum potential liability under then outstanding Bankers' Acceptances and Letters of Credit (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in The Escrow Funds will be held by the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before Agent for set-off against future indebtedness owing by the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed Borrower to the Member Representative for Lenders, the benefit Issuing Lender or any Non-Extending Lender, as applicable, in respect of such Bankers' Acceptances or Letters of Credit, and distribution to the Members as allocated pending such application will bear interest at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined rate payable by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced Agent from time to time by generally in respect of deposits for such amount, and for the amount period from the date of monies distributed from such Escrow Fund in accordance with this Agreement deposit to the earlier of the date of release thereof and the Escrow Maturity Date of the Bankers' Acceptances or the expiry of the Letters of Credit. If such Event of Default is either waived or cured in compliance with the terms of this Agreement, and that all interest on or other taxable incomethen the remaining Escrow Funds, if any, earned from together with any accrued interest to the investment date of release will be returned to the Borrower. The deposit of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received Funds by the Members from Borrower with the Agent as herein provided will not operate as a repayment of the Aggregate Principal Amount until such time as the Escrow Funds are intended actually paid to constitute installment payments from an installment sale described in Section 453 of the CodeLenders, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatmentIssuing Lender or any Non-Extending Lender, as applicable.
Appears in 1 contract
Escrow Funds. The Purchase Price Adjustment Escrow Fund shall be used solely for In order to secure the purposes set forth performance and discharge of Xxxxxxxxx's obligations hereunder, Mortgagor shall, on demand, pay to Mortgagee, in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed addition to the Member Representative for monthly installments of principal and interest under the benefit of and distribution to the Members as allocated at the direction terms of the Member Representative (in accordance with Annex D) on Note and concurrently therewith, monthly until the next Business Day after the Expiration Date or said Note is paid, such amounts as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced Mortgagee from time to time estimates as necessary to create and maintain a reserve escrow fund from which to pay before the same become due: (a) all taxes, assessments, liens and charges on or against the Mortgaged Property; and (b) all premiums for insurance policies which are required by this Mortgage. Upon demand by Mortgagee, Mortgagor shall deliver to Mortgagee such additional monies as are required to make up any deficiencies in the amounts necessary to enable Mortgagee to pay such taxes, assessments, liens, charges and premiums. Such deposits shall not be, nor be deemed to be, trust funds and no interest shall be payable in respect thereof. Upon the occurrence of an Event of Default, Mortgagee may apply to the reduction of the sums secured hereby, in such manner as Mortgagee shall determine in its sole discretion, any amount under this section remaining to Mortgagor's credit. Mortgagee shall have no liability for deficiencies in the deposit amount or for payment of monies distributed taxes, assessments, liens, charges and premiums arising from Mortgagor’s failure to timely or adequately fund the deposits. Payments from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment reserve fund for said purposes may be made by Mortgagee at its discretion even though subsequent owners of the Escrow Amount property described herein may benefit thereby. Any excess funds accumulated hereunder remaining after payment of the items set forth in this section, shall be treated for Tax purposes as earned by Parent until credited to the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the subsequent monthly payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) same nature required hereunder and any remaining balance existing at maturity of the Code, and Note shall be credited to the parties hereto shall report consistently with such treatment, as applicableprincipal secured hereby.
Appears in 1 contract
Samples: Restrictive Covenants Agreement
Escrow Funds. The Purchase Price Adjustment Escrow Fund Parties shall be used solely for enter into an escrow agreement in the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with form attached as Exhibit B hereto, and the remaining *** of the Purchase Price Adjustment Escrow Fund, shall be paid by the Buyer into an escrow account (“Escrow Funds”) shall (i) be used solely at Closing for the same purposes as benefit of the Purchase Price Adjustment Seller and thereafter the Buyer shall have no claim thereto. The Escrow Fund Funds shall be held and administered by an escrow agent selected by the Seller, with the approval of the Buyer, not to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before be unreasonably withheld (the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) “Escrow Agent”). All interest earned on the Expiration Date (other than with respect Escrow Funds shall ***. The Escrow Funds shall be released by the Escrow Agent to claims made the Seller on or before a per channel pro rata basis when Seller has completed clearing the Expiration Date). Any amounts in Licensed Channels of the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before Customers and, and the Expiration Date and not then finally resolved Licensed Channels have been released from the Management Agreement in accordance with the following procedure:
(i) when the Licensed Channels have been cleared of Customers by the Seller, the Seller shall provide notice to the Buyer and Escrow Agent in writing that the Licensed Channels have been cleared and released under the Management Agreement) ; for this purpose, a channel shall be distributed considered cleared when it is cleared by the Seller on a system-wide basis and released at all locations under the Management Agreement;
(ii) the Buyer shall have five (5) business days from the date such notice shall be deemed to have been given or delivered to confirm through monitoring that the Licensed Channels have been cleared;
(iii) the Escrow Agent shall release the Escrow Funds to the Member Representative for Seller within ten (10) business days from the benefit of and distribution date such notice shall be deemed to have been give or delivered to the Members as allocated at Purchaser and the direction Escrow Agent unless prior to the expiration of such period of ten (10) business days the Member Representative (in accordance with Annex D) Escrow Agent shall receive written notice from the Buyer of Buyer’s objection to such release based on the next Business Day Sellers’ failure to clear such Licensed Channel(s), after the Expiration Date or as otherwise determined by the Member Representative which such proposed release will only be made in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for written instructions of both the respective purposes and in accordance with the terms hereof Sellers and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner Buyer;
(iv) upon receipt of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members Funds from the Escrow Funds are intended Agent, the Seller shall execute and provide to constitute installment payments from an installment sale described in Section 453 the Buyer written acknowledgment of receipt of payment. Notwithstanding the foregoing, no less than *** of the Codeunreleased Escrow Funds existing on December 31, a portion of which may 2002 shall in all events be treated as imputed interest under released to the CodeSeller no later than April 1, unless 2003 ***. Also notwithstanding the Members make an election pursuant to Section 453(d) foregoing, the Escrow Agent shall in all events release all of the Codeunreleased Escrow Funds to the Seller no later than *** calendar days from the next business day following the Closing, and after which the parties hereto Escrow Agreement shall report consistently with such treatment, as applicableterminate.
Appears in 1 contract
Escrow Funds. Without limiting the effect of Paragraphs 7 and 8 hereof, after an Event of Default has occurred and for so long as such Event of Default remains uncured (or if more that three Events of Default have occurred during any consecutive twelve-month period, then for the twelve-month period following the last to occur of such Events of Default), at the written election of Mortgagee, Mortgagor shall pay to Mortgagee monthly at the time when the monthly Loan Payment is payable, an amount equal to 1/12th of the annual premium for such fire and extended coverage insurance, other hazard insurance and such annual real estate taxes, water rents, sewer rents, special assessments, and any other tax, assessment, claim, lien or encumbrance which may at any time be or become a lien upon the Premises prior to, or on a parity with, the lien of this Mortgage to enable Mortgagee to pay same at least thirty (30) days before they become due, and on demand from time to time shall pay to Mortgagee additional sums necessary to pay such premiums and other payments, all as estimated by Mortgagee, the amounts so paid to be security for such premiums and other payments and to be used in payment thereof. The Purchase Price Adjustment Escrow Fund amounts so paid shall be used solely deposited in a separate interest-bearing account with interest payable to Mortgagor. If, pursuant to any provision of the Loan Agreement, The whole amount of the Loan becomes immediately due and payable by acceleration or otherwise, Mortgagee shall have the right, at its election, to apply any amounts so held under this Paragraph 9 against all or any part of the indebtedness secured hereby or in payment of the premiums or payments for which the purposes set forth amounts were deposited. Mortgagor will furnish to Mortgagee tax and insurance bills in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall sufficient time to enable Mortgagee (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund to pay such Impositions before interest and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date penalties accrue thereon and (ii) terminate at 11:59 p.m. (Eastern time) on to pay the Expiration Date (other than with respect to claims made on or insurance premiums before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicablepolicies lapse.
Appears in 1 contract
Samples: Leasehold Mortgage and Security Agreement (Lasalle Hotel Properties)
Escrow Funds. The Purchase Price Adjustment Escrow Fund At the Closing, Parent shall deliver, and the Principal Members and the KMV Corporation Shareholders shall be used solely deemed to have received and deposited, pro rata in accordance with their respective ownership percentages set forth on the Closing Consideration Exhibit, cash in the amount of $45,000,000 (the "Escrow Funds") to an escrow account (the "Escrow Account") to be established by Parent with Citibank N.A., or an escrow agent to be designated by Parent and approved by the Member Representative (which approval shall not be unreasonably withheld) prior to the Closing (the "Escrow Agent") to be held by the Escrow Agent, pursuant to the terms of an escrow agreement, consistent with the provisions of this Agreement and otherwise in form and substance reasonably satisfactory to Parent, the Company and the Member Representative (the "Escrow Agreement"), to provide for the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii)satisfaction of claims for indemnification made by Parent pursuant to Article 10 of this Agreement. Any fees and expenses of the Escrow Agent shall be paid by Parent. The Indemnity Escrow Fund (collectively with Funds shall be retained in the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification Account until released pursuant to Section 12.02(a3.2.3(b) or Section 12.02(b) made from and after Closing but on or before below. During the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on period in which the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts Escrow Funds are retained in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall Account, they will be distributed to the Member Representative held for the benefit of the Principal Members and distribution KMV Corporation Shareholders (pro rata as provided above), and such Persons shall be entitled to receive the economic benefit of any interest earned on the Escrow Funds unless and until and to the Members as allocated at the direction extent it has been determined that Parent is entitled to retain any of the Member Representative Escrow Funds in respect of indemnification claims pursuant to Section 10.2.3 of this Agreement (in accordance with Annex D) it being understood that any interest on such Escrow Funds shall be distributed monthly to the Principal Members and KMV Corporation Shareholders, except for interest accrued on the next Business Day after amount of a Resolved Claim Notice (as defined in Section 10.2.3(a) of this Agreement) from the Expiration Date or as otherwise determined by date of the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund Agent's receipt of such Resolved Claim Notice until payment thereof to Parent, which interest shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreementpayable to Parent). The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and hereby agree that the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount treatment described above shall be treated apply for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. United States federal income tax purposes and to file all Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, Returns on a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently basis consistent with such treatment, as applicable.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Stock Purchase Agreement (Moodys Corp /De/)
Escrow Funds. The Parent shall take the following actions:
(a) deposit or cause to be paid to the Escrow Agent, in accordance with the Escrow Agreement, the Purchase Price Adjustment Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Purchase Price Adjustment Escrow Fund”) to be held for the purpose of securing the obligations pursuant to Section 2.16(d);
(b) deposit or cause to be paid to the Escrow Agent, in accordance with the Escrow Agreement, the Cash Indemnification Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Cash Indemnification Escrow Fund”), to be held for the purpose of partially securing the indemnification obligations of the Company Equityholders set forth in this Agreement, including Article VIII and Section 6.03;
(c) holdback and reserve for issuance on the books and records of Parent, the Parent Stock Holdback Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom the “Parent Stock Holdback Fund” and together with the Purchase Price Adjustment Escrow Fund shall be used solely for and the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Cash Indemnification Escrow Fund, the “Escrow Funds”) shall (i) ), to be used solely held for the same purposes as purpose of partially securing the Purchase Price Adjustment Escrow Fund indemnification obligations of the Company Equityholders set forth in this Agreement, including Article VIII and Section 6.03; and
(d) deposit or cause to satisfy be paid to the Stockholder Representative, the Stockholder Representative Expense Amount (such amount, the “Stockholder Representative Expense Fund”), to be held for the purpose of funding any claims expenses of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts Stockholder Representative arising in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance connection with the Escrow Agreement) shall be distributed to administration of Stockholder Representative’s duties in this Agreement after the Member Representative for the benefit of and distribution to the Members as allocated at the direction Effective Time. The balance of the Member Stockholder Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable incomeExpense Fund, if any, earned from will be distributed by the investment of Stockholder Representative to the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed Company Equityholders in accordance with this Agreement and the Escrow Agreementtheir respective Allocation Percentages. The parties hereto further agree that, for U.S. federal income Tax purposes, that the payments received by Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableStockholder Representative Expense Fund.
Appears in 1 contract
Samples: Merger Agreement (OptimizeRx Corp)
Escrow Funds. The Purchase Price Adjustment Escrow Fund shall be used solely Agreement will provide for the purposes set forth in Section 2.14(c)(ireduction of the Escrow Amount (and delivery to the Vendor of such reduction) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with by the Purchase Price Adjustment Escrow Fund, amount of $2,000,000 less the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy amount of any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims Claim made on or before the Expiration Date90th day following the Closing. The Escrow Amount less any the amount of any Claims made at or prior to that time shall be released to the Vendor on the date that is the last day of the fifteenth month following Closing. In the event of Vendor is required to indemnify any Purchaser Indemnified Party for Losses under this Article 10 (subject to the limitations thereunder). Any amounts , such Purchaser Indemnified Party shall be paid (a) first, to the extent there are sufficient funds in the Indemnity Escrow Fund not so used (other than amounts reserved subject escrow account established pursuant to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed , by release of funds to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined Purchaser Indemnified Parties by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and Agent, in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and (b) in the event that there are no remaining funds in the escrow account established pursuant to the Escrow Agreement, by the Vendor, by wire transfer of immediately available funds within five Business Days of such obligation becoming due; provided that, notwithstanding the foregoing, in the event an indemnification payment is due and that all interest on or other taxable incomeowing with respect to the Xxxxxxxx/Xxxxx Liabilities, if anythe Vendor shall pay such amount by wire transfer of immediately available funds within five Business Days of such obligation becoming due (and, earned unless otherwise elected by the Purchaser, such amount shall not be deducted from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and escrow account established pursuant to the Escrow Agreement). The parties hereto further agree that, for U.S. federal income Tax purposes, Any payment the payments received Purchaser is obligated to make to any Vendor Indemnified Party shall be paid to the applicable Vendor Indemnified Party by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 wire transfer of the Code, a portion immediately available funds within five Business Days of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableobligation becoming due.
Appears in 1 contract
Escrow Funds. To secure the obligations of Sellers set forth in Section 2.05 and Article VIII, at the Closing, Purchaser will deposit the Escrow Amount in immediately available funds in an escrow account with Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, as escrow agent (the “Escrow Agent”), pursuant to the terms and conditions of an escrow agreement (the “Escrow Agreement”) in substantially the form attached hereto as Exhibit E.
(a) The Purchase Price Adjustment Escrow Fund shall be used solely for the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund Amount shall be held and disbursed in the name of the Escrow Agent solely for to secure the respective purposes rights of Purchaser under, and in accordance with the terms hereof and the Escrow Agreementconditions of, Section 2.05. The parties hereto agree that, for For applicable Tax reporting purposes, Parent Purchaser shall be deemed to be treated as the owner of the Purchase Price Adjustment Escrow Funds, as reduced from time to time by Amount while such amount is held in the amount of monies distributed from such Purchase Price Adjustment Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Account.
(b) The RWI Indemnity Escrow Amount shall be treated for Tax purposes as earned by Parent until held in the name of the Escrow Agent solely to secure the rights of the Purchaser Indemnified Parties under and subject to Section 8.02 for a period of time ending on the first Business Day after that date which is twelve (12) months after the Closing Date (the “Escrow Claim Period”). Within two (2) Business Days following the end of the Escrow Claim Period, Purchaser and the Sellers’ Representative shall execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release to Sellers (in the amounts designated by the Sellers’ Representative) any portion of the RWI Indemnity Escrow Amount is distributed still held in escrow (and any interest attributable thereto) and not subject to pending, unresolved claims of any Purchaser Indemnified Party pursuant and subject to Section 8.02. If prior to the expiration of the Escrow Claim Period, any Purchaser Indemnified Party has made a claim pursuant and subject to Section 8.02 that has not been resolved in accordance with Article VIII and the Escrow Agreement as of the expiration of the Escrow Claim Period, the Escrow Agent shall retain in the RWI Indemnity Escrow Account, after the expiration of the Escrow Claim Period, a portion of the RWI Indemnity Escrow Amount having an aggregate value equal to the asserted damages amount or contested portion of said amount, as the case may be, with respect to all such claims made prior to the expiration of the Escrow Claim Period which have not then been resolved. All funds retained in the RWI Indemnity Escrow Account after the Escrow Claim Period shall, as appropriate, be released to either Purchaser or Sellers (in the amounts designated by the Sellers’ Representative), as applicable, upon resolution of such disputed claims pursuant to this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income For applicable Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may Purchaser shall be treated as imputed interest under the Codeowner of the RWI Indemnity Escrow Amount while such amount is held in the RWI Indemnity Escrow Account. For the avoidance of doubt, unless neither Parent, Purchaser nor any of the Members make an election Companies shall have any responsibility or Liability to any Seller with respect to the allocation of any amounts by the Sellers’ Representative pursuant to this Section 453(d2.08(b).
(c) The Special Indemnity Escrow Amount shall be held in the name of the CodeEscrow Agent solely to secure the rights of the Purchaser Indemnified Parties under and subject to Section 8.02(e) for a period of time ending on the first Business Day after that date which is sixty (60) months after the Closing Date (the “Special Escrow Claim Period”). The Special Indemnity Escrow Amount will be held in the Special Indemnity Escrow Account until released in accordance with the terms and conditions provided in the Escrow Agreement and Schedule 8.02(e). For applicable Tax purposes, and Purchaser shall be treated as the parties hereto owner of the Special Indemnity Escrow Funds while such amount is held in the Special Indemnity Escrow Account. For the avoidance of doubt, neither Parent, Purchaser nor any of the Companies shall report consistently have any responsibility or Liability to any Seller with such treatment, as applicablerespect to the allocation of any amounts by the Sellers’ Representative pursuant to this Section 2.08(c).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Local Bounti Corporation/De)
Escrow Funds. The Purchase Price Adjustment (a) On the Closing Date, the Buyer shall deliver to the Escrow Fund shall be used solely for Agent, as a deposit to the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, cash in an amount equal to $1,000,000.00 (the “Adjustment Escrow FundsAmount”) shall (i) be used solely ), for the same purposes purpose of securing the obligations of the Seller under Section 1.8, and, as the Purchase Price Adjustment Escrow Fund and a deposit to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject Fund, cash in an amount equal to pending claims made on or before the Expiration Date cash portion of the Indemnity Escrow Amount and not then finally resolved the Equity Escrow Consideration, for the purpose of securing certain obligations of the Seller under Article 10 The Escrow Funds shall be held by the Escrow Agent in accordance with the Escrow Agreement) shall be distributed to terms of this Agreement and the Member Representative for the benefit of and distribution to the Members as allocated at the direction terms of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Escrow Agreement. The Indemnity Escrow Fund Funds shall be held as trust funds and shall not be subject to any Lien, attachment, trustee process or any other judicial process of any creditor of any Person, and shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and of the Escrow Agreement. .
(b) The parties hereto agree thatBuyer and the Seller shall deliver joint written instructions to the Escrow Agent requiring the release of any remaining amounts held in the Adjustment Escrow Fund to the Seller no later than the five (5) Business Days after either (i) full and final payment is made of any Final Adjustment Amount payable to the Buyer pursuant to Section 1.8 or (ii) a final determination is made pursuant to Section 1.8 that no Final Adjustment Amount is payable to the Buyer.
(c) The Buyer and the Seller shall deliver joint written instructions to the Escrow Agent no later than five (5) Business Days after the General Survival Termination Date to effectuate disbursement to the Seller of an aggregate amount equal to (i) the then remaining amount in the Indemnity Escrow Fund, minus, (ii) the aggregate amount of any Losses arising under claims by the Buyer Indemnified Parties for Tax reporting purposes, Parent shall be deemed indemnification that have been made in good faith by an Indemnified Party prior to be the owner General Survival Termination Date pursuant to Article 10 but not yet been settled or paid in full as of the General Survival Termination Date (including the Specified Matters Reserve).
(i) Promptly following the final determination of any Losses with respect to any such claims for indemnification, the Buyer and the Seller shall promptly deliver a joint written instruction to the Escrow Funds, as reduced Agent to effectuate disbursement to the applicable Buyer Indemnified Party an amount equal to such Losses.
(ii) The Buyer may elect in its sole and absolute discretion to satisfy the indemnification Losses of the Buyer Indemnified Party from time to time by the amount cash portion of monies distributed from such the Indemnity Escrow Fund or from the Equity Escrow Consideration, or a combination thereof by specifying its election in accordance with this Agreement and the joint written instruction delivered to the Escrow AgreementAgent, and provided however, that all interest on if Buyer elects, either in whole or other taxable incomein part, to satisfy such indemnification Losses from the Equity Escrow Consideration, then the Buyer shall notify the Seller so that the Seller is able to satisfy such indemnification Losses with cash in lieu, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreementit so chooses. The parties hereto further agree that, for U.S. federal income Tax For indemnification purposes, the payments received by per share value of each Company Common Stock shall equal the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 volume weighted average price of the CodeParent Common Stock on the NYSE, a portion of which may be treated as imputed interest under reported by Bloomberg L.P. for the Code, unless 10 consecutive trading days ending on the Members make an election pursuant fifth trading day prior to Section 453(d) the final determination of the Coderequired indemnification payment, and the parties hereto shall report consistently with such treatment, as applicablerounded to three decimal places.
Appears in 1 contract
Samples: Stock Purchase Agreement (CURO Group Holdings Corp.)
Escrow Funds. The Purchase Price Adjustment Escrow Fund Amount shall be used solely for the purposes set forth in Section 2.14(c)(i2.3(b) and Section 2.3(c) and shall terminate five (5) Business Days after the date on which each of the Final Working Capital and the Final Assumed Indebtedness are finally agreed or 2.14(c)(ii)determined. The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (ia) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee the Buyer for indemnification pursuant to Section 12.02(a) or Section 12.02(b11.2(a) made from and after Closing but on or before the Expiration Cut-Off Date applicable to the representation, warranty or covenant to which such claim(s) relates, (b) to the extent that the amount payable by the Sellers pursuant to Section 2.3(c), if any, exceeds the amount of the then available Purchase Price Adjustment Escrow Fund, be used solely for the purposes set forth in Section 2.3(b) and Section 2.3(c) and (iic) terminate at 11:59 p.m. (Eastern time) on the Expiration date which is fifteen (15) months after the Closing Date (other than with respect to claims made on or before in subparagraph (a) above). Any amounts in the Expiration Date)Purchase Price Adjustment Escrow Fund not so used shall be distributed to the Sellers and the Optionholders in accordance with their respective Adjustment Amount Transaction Percentages. Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for Sellers based on such Seller’s Indemnity Escrow Allocation Percentage as set forth opposite such Sellers name on Annex D. The Purchase Price Adjustment Escrow Fund and the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall each be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicable.
Appears in 1 contract
Samples: Stock Purchase Agreement (MBF Healthcare Acquisition Corp.)
Escrow Funds. The Purchase Price Adjustment (a) Each Investor or Soliciting Dealer (as such term is defined in the Offering Circular) will be instructed by the Company to remit to the Company, a predetermined cash deposit (the “Cash Deposit”), as indicated on the applicable Subscription Agreement (as defined below), in the form of a check, draft, wire or ACH payable to the order of “Enterprise Bank & Trust, as Escrow Fund shall be used solely Agent for “Rad Diversified REIT”. Following receipt by the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow FundCompany of an Investor’s Cash Deposit, the “Escrow Funds”) shall Company will promptly: (i) send to the Escrow Agent the Investor’s name, address, executed IRS Form W-9 and total purchase price to be used solely remitted for the same purposes as Units to be purchased by the Investor (the “Total Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date Price”), and (ii) terminate at 11:59 p.m. remit to the Escrow Agent the Cash Deposit. Escrow Agent shall promptly deposit the Cash Deposit into the Escrow Account, which deposit shall occur within two (Eastern time2) on business days after the Expiration Date Escrow Agent’s receipt of the Cash Deposit. If “Cash Deposit” is in the form of a wire it will be made available the same day as credit and for disbursement.
(b) On or prior to the consummation of the Offering, each Investor or Soliciting Dealer may be further instructed by the Company to remit directly to the Escrow Agent an amount equal to the difference between such Investor’s Total Purchase Price and the amount of such Investor’s Cash Deposit, in the form of a check, draft, wire or ACH payable to the order of “Enterprise Bank & Trust, as Escrow Agent” for the Company.
(c) Escrow Agent shall have no obligation to accept Escrow Funds or documents from any party other than with respect to claims made on the Investors, the Soliciting Dealers or before the Expiration Date)Company. Any amounts checks that are made payable to a party other than the Escrow Agent shall be returned to the party submitting the check, and if received by the Company shall not be remitted to the Escrow Agent. Proceeds in the Indemnity form of wire or other electronic funds transfers are deemed deposited into the Escrow Fund Account and considered “Collected Funds” when received by the Escrow Agent. Any Proceeds deposited in the form of a check, draft or similar instrument are deemed deposited when the collectability thereof has been confirmed; after such time, such Proceeds are considered “Collected Funds.” The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. Should any check be deemed uncollectible for any reason, the Escrow Agent will notify the Company of the amount of such return check, the name of the Investor and the reason for return and return the check to the Investor.
(d) Escrow Agent will hold all Escrow Funds in escrow, free from any liens, claims or offsets, and such monies shall not so used (other than amounts reserved become the property of the Company, the Investor or any Soliciting Dealer, nor shall such monies become subject to pending claims made on the debts thereof or before the Expiration Date debts of the Escrow Agent, unless and not then finally resolved until the conditions set forth in these instructions to disbursement of such monies have been fully satisfied.
(e) The Escrow Funds shall be disbursed by the Escrow Agent from the Escrow Account by wire transfer or by a check payable to the appropriate payee(s) in accordance with the provisions of this Agreement.
(f) Escrow Agreement) Agent shall not be required to take any action under this Section 1.3 or any other section hereof until it has received proper written instruction from the Company. Such written instruction shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member signed by an Authorized Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(ddefined below) of the CodeCompany. Except as otherwise expressly contemplated herein, all parties hereby direct and instruct Escrow Agent to accept any payment or other instructions provided by the Company, and Escrow Agent shall have no duty or obligation to authenticate such payment or other instructions or the parties hereto authorization thereof. The Escrow Agent shall report consistently with such treatment, as applicablenot be required to release any funds that constitute Escrow Funds unless the funds represented thereby are Collected Funds.
Appears in 1 contract
Escrow Funds. The Purchase Price Adjustment As soon as practicable after the Effective Time, Parent will deposit the One Year Escrow Amount and the Three Year Escrow Amount, without any act of any Company Stockholder, with Computershare Trust Company, Inc., as Escrow Agent, such deposit to constitute the One Year Escrow Fund and the Three Year Escrow Fund to be governed by the terms set forth herein. The Parties agree that the cost and expense of operating the One Year Escrow Fund and the Three Year Escrow will be paid by the Parent, including the Escrow Agent fees as provided to the Parent. Pursuant to Section 3.8 hereof, each holder of Company Common Stock shall contribute to the One Year Escrow Fund an amount equal to twelve and one-half percent (12.5%) of the Merger Consideration which such holder would otherwise be entitled to receive under Section 3.1 and the Principal Stockholders shall contribute to the Three Year Escrow Fund an amount equal to such holder’s pro rata portion of the Three Year Escrow Fund and such amounts shall be used solely withheld by Parent from the distribution of the Merger Consideration and deposited with the Escrow Agent. Except for a claim arising under Section 3.5 hereof, Parent and its Affiliates may not receive any amounts from the purposes One Year Escrow Fund unless and until Officer’s Certificates (as defined in Section 9.3(e) below) identifying Losses, the aggregate amount of which exceeds $175,000, have been delivered to the Escrow Agent as provided in Section 9.3(e) (there shall not be any such threshold with respect to Losses incurred, suffered or accrued as a result of a breach or inaccuracy in any of the representations or warranties of the Company set forth in Section 2.14(c)(i4.17 (Intellectual Property) or 2.14(c)(iiof this Agreement as such Losses relate to the Three Year Escrow Fund). The Indemnity In such case Parent and its Affiliates may thereafter recover from the One Year Escrow Fund the total of its Losses, including the first $175,000. Except to the extent that the Losses resulted from fraud or any willful breach of any representation, warranty or covenant committed by a Company Stockholder or the Company, claims by the Third Persons (collectively with as defined below) for Losses shall be satisfied first, from the Purchase Price Adjustment One Year Escrow Fund, Fund or the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Three Year Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before second, against the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableCompany Stockholders directly.
Appears in 1 contract
Escrow Funds. The Purchase Price (A) At the Closing, Parent shall transfer, by wire transfer of immediately available funds, (I) the Adjustment Escrow Fund shall be used solely for Amount to the purposes set forth Escrow Agent to hold in Section 2.14(c)(itrust as an escrow fund (the “Adjustment Escrow Fund”) or 2.14(c)(ii). The under the terms of this Agreement and the Escrow Agreement and (II) the Indemnity Escrow Fund Amount to the Escrow Agent similarly to be held in trust as an escrow fund (collectively the “Indemnity Escrow Fund” and, together with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposespurposes only, Parent shall be deemed to be is the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund cash in accordance with this Agreement and the Escrow Agreement, Funds and that all interest on or other taxable income, if any, earned from the investment of such cash in the Escrow Amount Funds pursuant to this Agreement shall be treated for Tax purposes as earned by Parent until Parent.
(B) Parent, Seller and the Escrow Amount Agent shall enter into an Escrow Agreement in substantially the form attached hereto as Exhibit A (the “Escrow Agreement”). The Escrow Agreement shall be entered into at the Closing, by and among Parent, Seller and the Escrow Agent, and shall provide Parent with recourse against the Adjustment Escrow Fund with respect to Seller’s obligations under Section 1.3(e)(i) until it is exhausted or disbursed pursuant to Section 1.3(e)(iii) and against the Indemnity Escrow Fund with respect to Seller’s obligations under Article VI during the period through the 12-month anniversary of the Agreement Date (the “Escrow Period”), subject to the terms and conditions set forth in the Escrow Agreement. If on the 12-month anniversary of the Agreement Date there are funds remaining in the Indemnity Escrow Fund that are not subject to any Unresolved Claim, Parent and Seller shall promptly provide a joint written instruction to the Escrow Agent to deliver such funds, by wire transfer of immediately available funds, to Seller; provided, that if an Indemnification Claim Notice has been received by Seller and the Escrow Agent prior to the end of the Escrow Period, an amount in respect of the claims set forth in such Indemnification Claim Notice shall be retained by the Escrow Agent until final resolution of such claims. The proceeds in the Escrow Funds shall be distributed to Seller and to Parent at the times, and upon the terms and conditions, set forth in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree thatAdjustment Escrow Amount and the Indemnity Escrow Amount shall each be held as a trust fund and shall not be subject to any Encumbrance, attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and disbursed solely for U.S. federal income Tax purposes, the payments received by purposes and in accordance with the Members from terms of this Agreement and the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableAgreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (TrueCar, Inc.)
Escrow Funds. (a) The Purchase Price Adjustment General Escrow Fund Funds shall not serve as the sole source or sole remedy available to Purchaser with respect to a claim for indemnification under this Agreement; provided, however, that if the General Escrow Funds are insufficient to pay for a particular Loss agreed to by the Sellers (as the Indemnifying Parties) or finally adjudicated as the obligation of Sellers in any Legal Proceeding (from which no appeal may be or is taken), Purchaser, subject to the limitations described in this Article X, to the extent applicable, may seek recourse against Sellers in addition to claiming against the General Escrow Funds, but only if the remainder of the funds available in the General Escrow Account are first used to cover such Loss. Under no circumstances shall Sellers be liable for any portion of any Loss which can be satisfied by funds then available in the General Escrow Account.
(b) The Escrow Agreement shall specify that the remaining General Escrow Funds, if any, shall be used solely for released to Sellers or their designee on the purposes set forth first Business Day following the date that is 14 months after the Closing Date; provided, however, that if any claim pursuant to Article X shall have been properly asserted by any Purchaser Indemnified Party in Section 2.14(c)(i) accordance with Article X on or 2.14(c)(iiprior to the date that is 14 months after the Closing Date and remain pending on such date (any such claim, a “Pending Claim”). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) the General Escrow Funds released to Sellers or their designee shall be used solely for the same purposes as amount of General Escrow Funds then held by the Purchase Price Adjustment Escrow Fund and to satisfy any claims Agent, minus the aggregate amount of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date such Pending Claims and (ii) terminate at 11:59 p.m. any General Escrow Funds that remain in escrow following such date in respect of any such Pending Claim shall be released to Sellers or their designee promptly upon resolution or (Eastern timeif applicable) on satisfaction of such Pending Claim. In each case in which this Section 10.7(b) or the Expiration Date (other than with respect Escrow Agreement provide for the release of General Escrow Funds, each of Sellers and Purchaser shall promptly submit joint written instructions to claims made on or before the Expiration Date). Any amounts in Escrow Agent instructing the Indemnity Escrow Fund not so used (other than amounts reserved subject Agent to pending claims made on or before distribute the Expiration Date and not then finally resolved General Escrow Funds in accordance with the Escrow Agreementthis Section 10.7(b) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicable.
Appears in 1 contract
Escrow Funds. The Purchase Price Adjustment Escrow Fund shall be used solely for Upon the purposes set forth in Section 2.14(c)(i) occurrence of an Event of Default, after a domestic or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with foreign court issues any judgment or order restricting or prohibiting payment by the Purchase Price Adjustment Escrow FundIssuing Bank under a Letter of Credit or extending the liability of the Issuing Lender to make payment under a Letter of Credit beyond the expiry date specified therein, or if otherwise specifically required pursuant to this Agreement, the “Escrow Funds”Borrower will forthwith pay to (a) shall (i) be used solely the Agent for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of deposit into a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative collateral account maintained for the benefit of the Lenders, the Issuing Lender or any Non-Extending Lender, as applicable, an amount equal to such Lender(s)' maximum potential liability under then outstanding Bankers' Acceptances and distribution Letters of Credit (the "Escrow Funds"). The Escrow Funds will be held by the Agent for set-off against future indebtedness owing by the Borrower to the Members Lenders, the Issuing Lender or any Non-Extending Lender, as allocated applicable, in respect of such Bankers' Acceptances or Letters of Credit, and pending such application will bear interest at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined rate payable by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced Agent from time to time by generally in respect of deposits for such amount, and for the amount period from the date of monies distributed from such Escrow Fund in accordance with this Agreement deposit to the earlier of the date of release thereof and the Escrow Maturity Date of the Bankers' Acceptances or the expiry of the Letters of Credit. If such Event of Default is either waived or cured in compliance with the terms of this Agreement, and that all interest on or other taxable incomethen the remaining Escrow Funds, if any, earned from together with any accrued interest to the investment date of release will be returned to the Borrower. The deposit of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received Funds by the Members from Borrower with the Agent as herein provided will not operate as a repayment of the Aggregate Principal Amount until such time as the Escrow Funds are intended actually paid to constitute installment payments from an installment sale described in Section 453 of the CodeLenders, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatmentIssuing Lender or any Non-Extending Lender, as applicable.
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Escrow Funds. The Purchase Price Parties shall act in accordance with, and the Escrow Agent shall hold and release the Escrow Funds as provided in, this Section 4(a) as follows:
(i) Upon receipt of a Joint Release Instruction with respect to the Adjustment Escrow Fund Amount, the Escrow Agent shall promptly, but in any event within two (2) Business Days after the date of receipt of such Joint Release Instruction, disburse all or part of the Adjustment Escrow Amount together with any Escrow Earnings thereon in accordance with such Joint Release Instruction.
(ii) Upon receipt of a Joint Release Instruction with respect to the Retention Escrow Amount, the Escrow Agent shall promptly, but in any event within two (2) Business Days after the date of receipt of such Joint Release Instruction, disburse all or part of the Retention Escrow Amount together with any Escrow Earnings thereon in accordance with such Joint Release Instruction.
(iii) Upon receipt by the Escrow Agent of a copy of a Final Determination from any Party, the Escrow Agent shall (A) promptly deliver a courtesy copy of such Final Determination to the other Party and (B) within five (5) Business Days following the date of receipt of such determination, disburse as directed, part or all, as the case may be, of the Escrow Funds (but only to the extent funds are available in the Escrow Funds) in accordance with such Final Determination.
(iv) All payments of any part of the Escrow Funds shall be used solely for made by wire transfer of immediately available funds or check as set forth in the purposes Joint Release Instruction or Final Determination, as applicable.
(v) Any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of any funds on deposit in any Escrow Account under the terms of this Agreement must be in writing, executed by the appropriate Party or Parties as evidenced by the signatures of the person or persons set forth on Exhibit A-1 and Exhibit A-2 and delivered to the Escrow Agent either (i) by confirmed facsimile only at the fax number set forth in Section 2.14(c)(i) 11 below or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall (i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) attached to an e-mail received on a Business Day from an e-mail address set forth in Section 11 below. In the Expiration Date (other than with respect event a Joint Release Instruction or Final Determination is delivered to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed Agent, whether in writing, by facsimile or otherwise, the Escrow Agent is authorized to seek confirmation of such instruction by telephone call back to the Member Representative for person or persons designated in Exhibits A-1 and/or A-2 annexed hereto (the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof “Call Back Authorized Individuals”), and the Escrow AgreementAgent may rely upon the confirmations of anyone purporting to be a Call Back Authorized Individual. To assure accuracy of the instructions it receives, the Escrow Agent may record such call backs. If the Escrow Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The parties hereto agree thatpersons and telephone numbers for call backs may be changed only in writing, for Tax reporting purposes, Parent shall be deemed to be the owner executed by an authorized signer of the Escrow Fundsapplicable Party set forth on Exhibit A-1 or Exhibit A-2, as reduced from time to time actually received and acknowledged by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableAgent.
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Escrow Funds. The Purchase Price Adjustment Parties shall act in accordance with, and the Escrow Fund Agent shall be used solely for hold and release the purposes set forth in Escrow Funds as provided in, this Section 2.14(c)(i4(a) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”) shall as follows:
(i) be used solely for the same purposes as the Purchase Price Adjustment Escrow Fund and to satisfy any claims Upon receipt of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than Joint Release Instruction with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount Escrow Agent shall promptly, but in any event within two (2) Business Days after receipt of monies distributed from such a Joint Release Instruction, disburse Escrow Fund Funds in accordance with this Agreement and such Joint Release Instruction.
(ii) If at any time either of the Parties receives a Final Determination (as defined herein), then upon receipt by the Escrow AgreementAgent of a copy of such Final Determination from any Party, the Escrow Agent shall (A) promptly deliver a copy of such Final Determination to the other Party and that all interest (B) on or other taxable income, if any, earned the fifth (5th) Business Day following receipt by the applicable Party from the investment Escrow Agent of the Final Determination, disburse to Purchaser and/or the Seller Representative, as applicable, Escrow Amount shall be treated for Tax purposes as earned by Parent until Funds (but only to the extent there are Escrow Amount is distributed Funds) in accordance with such Final Determination. Subject to the terms of this Agreement and Section 4(a), the Escrow Agreement. The parties hereto Agent will act on such Final Determination without further agree that, for U.S. federal income Tax purposes, the inquiry.
(iii) All payments received by the Members from the of Escrow Funds are intended to constitute installment payments from an installment sale described (i) the Purchaser or (ii) the Paying Agent (as defined in Section 453 the Purchase Agreement) for further distribution to the Sellers, as the case may be, shall be made by wire transfer of immediately available funds or cashier’s check as set forth in the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatmentJoint Release Instruction or Final Determination, as applicable.
(iv) In the event a Joint Release Instruction is delivered to the Escrow Agent, whether in writing, by telecopier or otherwise, the Escrow Agent shall seek confirmation of such instruction by telephone call back to the person or persons designated in Exhibits A-1 and or A-2 annexed hereto (the “Call Back Authorized Individuals”), and the Escrow Agent may rely upon the confirmations of anyone purporting to be a Call Back Authorized Individual. To assure accuracy of the instructions it receives, the Escrow Agent may record such call backs. If the Escrow Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The persons and telephone numbers for call backs may be changed only in writing actually received and acknowledged by the Escrow Agent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Talen Energy Supply, LLC)
Escrow Funds. The Purchase Price Adjustment From and after the Closing (but subject to the provisions of this Article VIII and the Escrow Fund Agreement) until December 31, 2015 (the "Indemnity Escrow Period"), Buyer Indemnitees shall be used solely for entitled, in accordance with the purposes set forth in Section 2.14(c)(i) terms of the Escrow Agreement, to receive Escrow Shares or 2.14(c)(ii). The proceeds from the Indemnity Escrow Fund (collectively Funds in respect of any Losses suffered or incurred by any Buyer Indemnitee to the extent such Losses result from or arise out of matters which entitle such Buyer Indemnitee to indemnification under Article VIII. During the Indemnity Escrow Period, the indemnification obligations of Sellers pursuant to this Article VIII will be first satisfied by a distribution out of the Escrow Account to the applicable Buyer Indemnitee of a number of Escrow Shares having an aggregate value equal to the amount of such Losses as calculated pursuant to Section 8.6. Following the release to Buyer Indemnitees of all Escrow Shares in accordance with the Purchase Price Adjustment Escrow Fundpreceding sentence, the “indemnification obligations of Sellers will next be satisfied from the cash portion of the Indemnity Escrow Funds until such funds have been exhausted or the Claims for indemnification shall exceed the then-current balance in the Indemnity Escrow Funds”) , and thereafter, subject to the limitations in this Article VIII, directly by Sellers pursuant to this Article VIII. A distribution out of the Escrow Account in accordance with the immediately preceding two sentences shall (i) be used solely the sole and exclusive remedy of the Buyer Indemnitees for the same purposes as the Purchase Price Adjustment Escrow Fund and all Losses relating to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date 8.1 (other than with respect to claims made on Losses arising out of arising out of breaches of any Fundamental Representation or before in the Expiration Datecase of fraud or intentional misrepresentation). Any The "Indemnity Escrow Funds" means the then-current amounts held in the Indemnity Escrow Fund not so used (Account, including any dividends, interest, distributions and other than amounts reserved subject to pending claims made income received in respect thereof, less any losses on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree thatinvestments thereof, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed less distributions thereof in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposesAt the end of the Indemnity Escrow Period, the payments received by the Members from Indemnity Escrow Funds, less any amounts subject to a pending Claims Notice (as defined in the Escrow Funds are intended Agreement), shall be disbursed to constitute installment payments from an installment sale described Sellers' Representative and/or Sellers in Section 453 accordance with the terms and conditions of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableEscrow Agreement.
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Escrow Funds. The Purchase Price Adjustment Escrow Fund Parties shall be used solely for enter an escrow agreement in the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with form attached as Exhibit B hereto and the sum of *** representing the balance of the Purchase Price Adjustment Escrow Fund, shall be paid by the Purchaser into an escrow account (“Escrow Funds”) at Closing for the benefit of the Sellers and thereafter Purchaser shall have no claim thereto. The Escrow Funds shall be held and administered by an escrow agent selected by the Sellers, with the approval of the Purchaser, not to be unreasonably withheld (the “Escrow Agent”). All interest earned on the Escrow Funds shall belong to the Sellers. The Escrow Funds shall be released by the Escrow Agent to the Sellers incrementally on a per channel pro rata basis (in accordance with their respective holdings set forth in Schedule 1.1) as each of the Channels becomes available to the Purchaser, as follows:
(i) be used solely for the same purposes as Sellers shall clear the Purchase Price Adjustment Escrow Fund and to satisfy any claims Channels of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved Customers in accordance with the timetable and schedule set forth in Schedule 2.3; and as each Channel is cleared of Customers by Sellers, the Sellers shall provide notice to the Purchaser and Escrow Agent in writing that such Channel has been cleared and released under the Management Agreement) ; for this purpose, a channel shall be distributed considered cleared when it is cleared by the Sellers on a system-wide basis and released at all locations under the Management Agreement;
(ii) the Purchaser shall have five (5) business days from the date such notice shall be deemed to have been given or delivered to confirm through monitoring that such Channel has been cleared;
(iii) the Escrow Agent shall release the pro rata payment with respect to such Channel to the Member Representative for Sellers within ten (10) business days from the benefit of and distribution date such notice shall be deemed to have been given or delivered to the Members as allocated at Purchaser and the direction Escrow Agent unless prior to the expiration of such period of ten (10) business days the Member Representative (in accordance with Annex D) Escrow Agent shall receive written notice from Purchaser of Purchaser’s objection to such release based on the next Business Day Sellers’ failure to clear such Channel, after the Expiration Date or as otherwise determined by the Member Representative which such proposed release will only be made in accordance with the Restructuring Agreementwritten instructions of both the Sellers and the Purchaser; and
(iv) upon receipt of the funds with respect to such Channel from the Escrow Agent, the Sellers shall execute and provide to the Purchaser written acknowledgment of receipt of payment with respect to such Channel. The Indemnity Notwithstanding the foregoing, no less than *** of the unreleased escrow funds existing on *** shall in all events be released by the Escrow Fund Agent to the Sellers on a basis which is proportionate to their respective interests therein no later than *** to provide for the payment of income taxes, and to the extent that such amount is in excess of the amount of payments actually made by the Escrow Agent to the Sellers with respect to cleared Channels during such time period pursuant to the above subparagraphs (i) –(iv), then such excess amount shall be held treated as an advance on all such future payments and disbursed solely for shall in effect be paid back by Sellers through the respective purposes and in accordance with subsequent release of Channels until such excess amount is made up, prior to the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner release of any additional amount of the Escrow Funds.
(a) Also notwithstanding the foregoing, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that Agent shall in all interest events release all of the unreleased Escrow Funds to the Sellers on or other taxable income, if any, earned a basis which is proportionate to their respective interests therein no later than *** calendar days from the investment of next business day following the Closing, after which the Escrow Amount Agreement shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableterminate.
Appears in 1 contract
Samples: Stock Purchase and Redemption Agreement (Nextel Partners Inc)
Escrow Funds. At the Closing, Acquirer will withhold from the shares of Acquirer Common Stock comprising the Total Stock Consideration issuable to each Selling Shareholder in connection with the Share Purchase such Selling Shareholder's Pro Rata Share of the Escrow Shares (such aggregate amount of shares of Acquirer Common Stock being referred to herein as the "Escrow Fund"). The Purchase Price Adjustment Escrow Fund shall be used solely for the purposes set forth available to compensate Acquirer (on behalf of itself or any other Indemnified Person (as such term is defined in Section 2.14(c)(i9.2 below)) or 2.14(c)(iifor Indemnifiable Damages (as such term is defined in Section 9.2 below) pursuant to the indemnification obligations of the Selling Shareholders until 11:59 p.m. California time on the date that is eighteen (18) months after the Closing Date (such earlier date, the "Escrow Release Date"). The Indemnity Escrow Fund No portion (collectively with nor all) of the Purchase Price Adjustment Escrow Fund, nor any beneficial interest therein, may be pledged, subjected to any Encumbrance, sold, assigned or transferred, by any Selling Shareholder, or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Selling Shareholder, in each case prior to the “disbursement of the Escrow Funds”Fund to any Selling Shareholder in accordance with Section 9.1(c) shall below. [Intentionally Omitted] Within five (5) Business Days following the Escrow Release, Acquirer will disburse to each Selling Shareholder such Selling Shareholder's Pro Rata Share of the Escrow Fund, less (i) be used solely for that portion of the same purposes as the Purchase Price Adjustment Escrow Fund and previously paid to satisfy any or reclaimed by Acquirer in satisfaction of claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date in accordance with Article 9 of this Agreement and (ii) terminate at 11:59 p.m. that portion of the Escrow Fund necessary to satisfy all unsatisfied or disputed claims for indemnification specified in any Claim Certificate (Eastern timeas defined in Section 9.5 below) on delivered to the Expiration Shareholders' Agent prior to the Escrow Release Date. Any portion of the Escrow Fund held following the Escrow Release Date (other than with respect to pending but unresolved claims made on or before for indemnification that is not awarded to Acquirer upon the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending resolution of such claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed disbursed to the Member Representative for the benefit Selling Shareholders within five (5) Business Days following resolution of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow Agreement. The parties hereto agree that, for Tax reporting purposes, Parent shall be deemed to be the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on or other taxable income, if any, earned from the investment of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicableclaims.
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Escrow Funds. The Purchase Price At the Closing, Parent shall deduct from the Total Consideration (i) an amount in cash equal to the Adjustment Escrow Fund Amount, which shall be used solely constitute partial security for the purposes obligations set forth in Section 2.14(c)(i1.8 (the “Adjustment Escrow Fund”), (ii) or 2.14(c)(iian amount in cash equal to the Indemnity Escrow Amount, which shall constitute partial security for the indemnification obligations of each Indemnifying Party pursuant to Article VIII (the “Indemnity Escrow Fund”). The , and (iii) an amount in cash equal to the Special Escrow Amount, which shall constitute partial security for the indemnification claims under Section 8.2(a)(viii) (the “Special Escrow Fund” and, together with the Indemnity Escrow Fund (collectively with and the Purchase Price Adjustment Escrow Fund, the “Escrow Funds”), in each case to be delivered to at Closing and held by the Escrow Agent in accordance with the terms of an “Escrow Agreement” in substantially the form attached hereto as Exhibit A. Each Indemnifying Party’s Pro Rata Portion of the Escrow Funds shall be withheld from the Total Consideration otherwise payable to such Indemnifying Party on the Closing Date under Section 1.6(b) shall (i) be used solely for and/or 1.6(d). To the same purposes as the Purchase Price Adjustment Escrow Fund and extent not reduced to satisfy the indemnification obligations of the Indemnifying Parties in accordance with the terms of Article VIII, any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date and (ii) terminate at 11:59 p.m. (Eastern time) on the Expiration Date (other than with respect to claims made on or before the Expiration Date). Any remaining amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved in accordance with the Escrow Agreement) shall be distributed to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Special Escrow Fund shall be paid to the Indemnifying Parties in accordance with their respective Pro Rata Portions promptly following the date that is eighteen (18) months after the Closing Date (the “Indemnity Escrow Release Date”) or, in the case of amounts held back in respect of pending and disbursed solely for unresolved claims as of the respective purposes and Indemnity Escrow Release Date, promptly following the final resolution of such claims to the extent in favor of the Indemnifying Parties, in each case in accordance with the terms hereof and of the Escrow Agreement and this Agreement. The parties hereto agree that, for Tax reporting purposes, Parent Pro Rata Portions of the Indemnity Escrow Fund (if any) or the Special Escrow Fund (if any) payable pursuant this Section 1.7(b) to each former holder of a Vested Company Option that was outstanding immediately prior to the Effective Time shall be deemed to be paid through the owner of the Escrow Funds, as reduced from time to time by the amount of monies distributed from such Escrow Fund in accordance with this Agreement and the Escrow Agreement, and that all interest on Surviving Corporation’s (or other taxable incomeParent’s payroll, if anythe Surviving Corporation no longer exists or does not have a payroll system at the time of payment) promptly following the Indemnity Escrow Release Date, earned from the investment net of the Escrow Amount shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow Agreement. The parties hereto further agree that, for U.S. federal income Tax purposes, the payments received by the Members from the Escrow Funds are intended to constitute installment payments from an installment sale described in Section 453 of the Code, a portion of which may be treated as imputed interest under the Code, unless the Members make an election any applicable withholding Taxes pursuant to Section 453(d) of the Code, and the parties hereto shall report consistently with such treatment, as applicable1.9.
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Escrow Funds. The Purchase Price Adjustment Escrow Fund (A) As soon as reasonably practicable after the Closing, but in no event later than one Business Day following Closing, Purchaser shall, or shall be used solely for cause the purposes set forth in Section 2.14(c)(i) or 2.14(c)(ii). The Indemnity Escrow Fund (collectively with the Purchase Price Adjustment Escrow FundPayment Agent to, the “Escrow Funds”) shall transfer, by wire transfer of immediately available funds (i) be used solely for the same purposes Indemnity Escrow Amount to the Escrow Agent to hold in trust as an escrow fund (the Purchase Price Adjustment “Indemnity Escrow Fund and to satisfy any claims of a Parent Indemnitee for indemnification pursuant to Section 12.02(a) or Section 12.02(b) made from and after Closing but on or before the Expiration Date Fund”); and (ii) terminate at 11:59 p.m. the Working Capital Escrow Amount to the Escrow Agent to hold in trust as an escrow fund (Eastern time) on the Expiration Date (other than “Working Capital Escrow Fund”), under the terms of this Agreement and the Escrow Agreements. Upon deposit of the Escrow Amounts with respect to claims made on or before the Expiration Date). Any amounts in the Indemnity Escrow Fund not so used (other than amounts reserved subject to pending claims made on or before the Expiration Date and not then finally resolved Agent in accordance with the Escrow Agreement) preceding sentence, Purchaser shall be distributed deemed to have contributed on behalf of each Participating Sellers and the Company Indemnitors its, his or her Pro Rata Portion of the Escrow Amounts (as applicable) to the Member Representative for the benefit of and distribution to the Members as allocated at the direction of the Member Representative (in accordance with Annex D) on the next Business Day after the Expiration Date Working Capital Escrow Fund and/ or as otherwise determined by the Member Representative in accordance with the Restructuring Agreement. The Indemnity Escrow Fund shall be held and disbursed solely for the respective purposes and in accordance with the terms hereof and the Escrow AgreementFund. The parties hereto agree that, for Tax reporting purposespurposes only, Parent shall be deemed to be Purchaser is the owner of the Escrow Funds, as reduced from time to time by cash in the amount of monies distributed from such Working Capital Escrow Fund in accordance with this Agreement and the Indemnity Escrow Agreement, Fund and that all interest on or other taxable income, if any, earned from the investment of such cash in the Working Capital Escrow Amount Fund and Indemnity Escrow Fund pursuant to this Agreement shall be treated for Tax purposes as earned by Parent until the Escrow Amount is distributed in accordance with this Agreement and the Escrow AgreementPurchaser. The parties hereto further agree that, for U.S. federal income Tax purposesFurthermore, the payments received by parties acknowledge and agree that (i) the Members from portion of the Working Capital Escrow Funds are Fund payable in respect of Employee Company Options is intended to constitute installment payments from an be compensation or wages and subject to withholding and deductions as such (including, to the extent permitted by applicable Law, secondary class 1 (employer’s) National Insurance contributions and any equivalent Tax in any other jurisdiction), and (ii) the portion of the Working Capital Escrow Fund payable in respect of Company Capital Shares and Company Warrants is intended to be treated as deferred contingent purchase price eligible for installment sale described in treatment under Section 453 of the CodeCode and any corresponding provision of non-U.S. or U.S. state or local Tax Law, a as appropriate and if and to the extent any such portion of which the Working Capital Escrow Fund is actually distributed to applicable Company Indemnitors, interest may be treated imputed on such amount, as imputed interest under the Code, unless the Members make an election pursuant to required by Section 453(d) 483 or Section 1274 of the Code, .
(B) The Escrow Agreements shall provide Purchaser with recourse against the Working Capital Escrow Fund with respect to the Participating Sellers obligations under Section 1.3 until such time that a Post-Closing Adjustment Amount is determined and the parties hereto Indemnity Escrow Fund with respect to the Company Indemnitors obligations under Article VIII during the period through the 18 month anniversary of the Closing Date (the “Escrow Period”), provided that if Purchaser delivers an Indemnification Claim Notice to the Shareholders’ Representative and the Escrow Agent prior to the end of the Escrow Period, an amount in respect of the claims set forth in such Indemnification Claim Notice shall report consistently with be retained by the Escrow Agent until final resolution of such treatmentclaims, as applicablesubject to the terms and conditions set forth in the Indemnity Escrow Agreement. For any portion of the Working Capital Escrow Fund and/or the Indemnity Escrow Fund released for the benefit of the Participating Sellers and/or Company Indemnitors, the portion of the relevant Escrow Fund payable in respect of (1) holders of Employee Company Options shall be paid to the Company for further payment to such holders through the Company’s payroll processing system net of applicable Tax withholding and deductions (including, to the extent permitted by applicable Law, secondary class 1 (employer’s) National Insurance contributions and any equivalent Tax in any other jurisdiction), (2) Non-Employee Company Option Holders shall be paid to the Payment Agent for further payment to the Non-Employee Company Option Holders and (3) holders of Company Capital Shares and Company Warrants shall be paid to the Payment Agent for further distribution to such recipients, in each case, based on each Participating Seller’s and Company Indemnitor’s respective Pro Rata Portion.
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