Escrow Funds. (i) Pursuant to an escrow agreement to be entered into on the Closing Date by and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration equal to Three Million Dollars ($3,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d), and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D. (ii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow Termination Date.”
Appears in 1 contract
Samples: Merger Agreement (Green Plains Renewable Energy, Inc.)
Escrow Funds. (i) Pursuant to the terms of an escrow agreement to be entered into on concurrently with the Closing Date by and execution of this Agreement among Green PlainsParent, the Sellers’ Representative on behalf of Company, the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Shareholder Representative and reasonably acceptable to the other of them)Citibank, N.A. as escrow agent (including any successor in such capacity, the “Escrow Agent”), ) in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing H (the “Escrow Agreement”), Green Plains Parent and the Sellers’ Shareholder Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At Concurrently with the Closingexecution of this Agreement, Green Plains Parent and/or Merger Sub shall deposit with the Escrow Agent: Agent (A) a portion on behalf of the Merger Consideration equal to Three Million Dollars Company Holders) $3,000,000 ($3,000,000) (the “Adjustment Amount” and, together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars (and $5,000,000) 25 million (the “Indemnity Escrow”)Amount” and, and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with Indemnity Escrow”; the Indemnity Escrow and the Adjustment Escrow and Indemnity Escrow, are referred to as the “Escrow Funds”), in each case case, by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sole sources of payment of certain adjustments any adjustment to the Estimated Merger Consideration required by Section 1.5(d), and 2.3(e)(i) or any indemnification obligations obligation of the Global Ethanol Members Company set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.VII.
(ii) The Parent and the Shareholder Representative shall instruct the Escrow Agent to disburse the Escrow Funds as follows: (A) the Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or (1) Parent, to the Global Ethanol Membersextent provided in Section 2.3(e)(i) and (ii), as applicableand/or (2) the Shareholder Representative, under to the extent provided in Section 1.5(d2.3(e)(i) and (ii). From ; (B) from time to time prior to the Escrow Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains Parent to the extent required to pay an indemnification obligation of the Global Ethanol Members Company under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered VII and/or to the non-certifying partyextent required by clause (z) of Section 2.3(e)(i), in each case directing ; (C) on the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts amount thereof that are subject to unresolved indemnification claims hereunder with respect to which Parent has provided the Escrow Agent and the Shareholder Representative written notice (each such amount, a “Pending Claim Amount”), reduced by the amount provided for in Section 2.2(b)(iii) with respect to any Dissenting Shares (which amount shall instead be disbursed by the Escrow Agent to Parent), shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth Shareholder Representative (on Exhibit D. After behalf of the Company Holders); and (D) after the Escrow Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains Parent or the Global Ethanol MembersShareholder Representative (on behalf of the Company Holders), as the case may be, upon receipt in accordance with Article VII, reduced by the amount provided for in Section 2.2(b)(iii) with respect to Dissenting Shares (which shall instead be disbursed by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying partyParent), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the The date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow Termination Date”. Subject to Section 2.5(c), any Escrow Funds paid to the Shareholder Representative pursuant to this Section 2.5(b) shall be distributed by the Shareholder Representative to the Company Holders in accordance with their respective shares of such amounts as determined in accordance with this Agreement.”
Appears in 1 contract
Samples: Merger Agreement (Ascent Media CORP)
Escrow Funds. (i) Pursuant to an escrow agreement to be entered into on the Closing Date by The Parties shall act in accordance with, and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to shall hold and disburse release the Escrow Funds as provided below. At the Closingin, Green Plains shall deposit this Section 4(a) as follows:
(i) Upon receipt of a Joint Release Instruction with respect to the Escrow Agent: Funds, the Escrow Agent shall promptly, but in any event within two (A2) Business Days after receipt of a portion Joint Release Instruction, disburse all or part of the Merger Consideration equal to Three Million Dollars Escrow Funds in accordance with such Joint Release Instruction. 261387504v.2
($3,000,000ii) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held Upon receipt by the Escrow Agent in segregated accounts to serve as the sources of payment a copy of certain adjustments to the Merger Consideration required by Section 1.5(d)a Final Escrow Order, and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account shall on the fifth (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative5th) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon Business Day following receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative such Final Escrow Order, disburse as directed, part or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Membersall, as the case may be, upon receipt of the Escrow Funds (but only to the extent funds are available in the Escrow Funds) in accordance with such Final Escrow Order. The Escrow Agent will act on such Final Escrow Order without further inquiry.
(iii) 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 Joint Release Instruction or Final Escrow Order, as applicable.
(iv) 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 of, and either (i) by confirmed facsimile only at the fax number set forth in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative Section 11 below or (yii) attached to an e-mail received on a Business Day from an e-mail address set forth in Section 11 below. In the event a Joint Release Instruction or Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously Escrow Order is delivered to the non-certifying party)Escrow Agent, whether in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such timewriting, by facsimile or from time to timeotherwise, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred authorized to as 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 Termination DateAgent 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, executed by an authorized signer of applicable Party set forth on Exhibit A-1 or Exhibit A-2, actually received and acknowledged by the Escrow Agent.”
Appears in 1 contract
Samples: Escrow Agreement
Escrow Funds. (ia) Pursuant to an escrow agreement to be entered into on As exclusive security and remedy for the Closing Date by indemnity provided for in Section 9.2(a) and among Green Plains(b) of this Agreement, the Sellers’ Representative on behalf Escrow Shares (defined in Section 2.4(f) hereof) shall be registered in the names of the Global Ethanol Members and U.S. Bank National Association securityholders of Company but shall be deposited (or another financial together with assignments in blank executed by the securityholders of Company in connection with the surrender of their Certificates) with an institution proposed selected by either Green Plains or Parent with the Sellers’ reasonable consent of the Holders' Representative and reasonably acceptable to the other of them), as escrow agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein and in such capacityan Escrow Agreement among Parent, the “Escrow Agent”), Agent and the Holders' Representative (the "Escrow Agreement") substantially in the form attached hereto as Exhibit G I. Subject to the terms of Section 9.3(b) of this Agreement, upon compliance with such changes as the Seller’s Representative terms hereof and Green Plains may agree to in writing (the “terms of the Escrow Agreement”), Green Plains and the Sellers’ Representative Parent Indemnitees shall appoint be entitled to obtain indemnification from the Escrow Agent Fund for all Parent Indemnifiable Damages covered by the indemnity provided for in Section 9.2 of this Agreement (it being understood that each Company Indemnitor's liability under this Agreement shall be limited to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration equal to Three Million Dollars ($3,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d), and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf Agent, Parent, the Surviving Corporation and Merger Sub may rely upon any decision, act, consent or instruction of the Holders' Representative as being the decision, act, consent or instruction of each Global Ethanol Member shall be and all of the stockholders of Company. The Escrow Agent, Parent and Merger Sub are hereby relieved from any liability to any person for any acts done by them in proportion accordance with such decision, act, consent or instruction of the Holders' Representative.
(b) At any time until the earlier of the Expiration Date or the termination of the Escrow Agreement as provided therein, if any Parent Indemnitee makes a claim for Indemnifiable Damages and is entitled to their Global Ethanol Interestsindemnification pursuant to Section 9.2 hereof, as the Escrow Agent shall, upon compliance with the procedures set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by the Escrow Agent Agreement, release to Green Plains Parent (or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by other applicable Parent Indemnitee) such amount from the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of Fund which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow Termination Date.”equal in
Appears in 1 contract
Escrow Funds. (i) Pursuant to 1.1.1. The Escrow Funds, initially in an escrow agreement to be entered into on the Closing Date by and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration amount equal to Three Forty-Five Million U.S. Dollars ($3,000,000US$45,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow shall be deposited on the date hereof with, and the Indemnity Escrow shall be held by from and after the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d)date hereof by, and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated separate account located in the United States (over which Green Plains shall have no authority whatsoeverthe “Escrow Account”) for the benefit of HOKU and SOLARFUN, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d)provided in this Agreement. The Escrow Funds contributed on behalf of each Global Ethanol Member Agent shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by not make any payment or distribution from the Escrow Agent to Green Plains or Account except as, and in the Global Ethanol Membersmanner, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VIexpressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SOLARFUN until such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified time as such by Green Plains or funds are required under the Sellers’ Representative (a copy terms of which shall this Agreement to be contemporaneously delivered to HOKU, at which time the non-certifying party)portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU.
1.1.2. Concurrently with the execution of this Agreement, in each case directing SOLARFUN has delivered the Escrow Funds to the Escrow Agent pursuant to make such disbursement. On the Release Date, the entire balance Section 5.3.1 of the Indemnity Supply Agreement.
1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (less i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts thereof that are subject distributed pursuant to unresolved indemnification claims hereunder Section 1.3 of this Agreement.
1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (each i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such amountfunds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent to Green Plains or the Global Ethanol Membersas, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) custodian for any party for purposes of perfecting a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth security interest therein. At such time, or from time to time, as directed by the Sellers’ RepresentativeAccordingly, the Member Fund will be paid by the Escrow Agent first Parties agree that no person or entity shall have any right to pay have or to hold any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Agent is referred to as the “Escrow Termination DateAccount.”
Appears in 1 contract
Escrow Funds. (i) Pursuant to an escrow agreement to be entered into on the Closing Date by The Parties shall act in accordance with, and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to shall hold and disburse release the Escrow Funds as provided below. At the Closingin, Green Plains shall deposit this Section 4(a) as follows:
(i) Upon receipt of a Joint Release Instruction with respect to the Escrow Agent: Funds, the Escrow Agent shall promptly, but in any event within two (A2) Business Days after receipt of a portion Joint Release Instruction, disburse all or part of the Merger Consideration equal to Three Million Dollars Escrow Funds in accordance with such Joint Release Instruction.
($3,000,000ii) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held Upon receipt by the Escrow Agent in segregated accounts to serve as the sources of payment a copy of certain adjustments to the Merger Consideration required by Section 1.5(d)Final Determination from any Party, and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account shall on the fifth (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative5th) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon Business Day following receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative such determination, disburse as directed, part or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Membersall, as the case may be, upon receipt 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.
(iii) 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 Joint Release Instruction or Final Determination, as applicable.
(iv) 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 of, and attached to an e-mail received on a Business Day from an e-mail address set forth in accordance with, (x) joint written instructions executed by Green Plains and Section 11 below. In the Sellers’ Representative event a Joint Release Instruction or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously Determination is delivered to the nonEscrow Agent, whether in writing, by e-certifying party)mail or otherwise, in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred authorized to as 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 Termination DateAgent 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, to the extent permitted by and in accordance with all applicable laws. 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, executed by an authorized signer of applicable Party set forth on Exhibit A-1 or Exhibit A-2, actually received and acknowledged by the Escrow Agent.”
Appears in 1 contract
Escrow Funds. (i) Pursuant to an escrow agreement to be entered into on the Closing Date by The Parties shall act in accordance with, and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to shall hold and disburse release the Escrow Funds as provided below. At in, this Section 4(a) as follows:
(i) Upon receipt of a Joint Release Instruction, substantially in the Closingform of Exhibit B annexed hereto, Green Plains shall deposit with respect to the Escrow Agent: Funds, the Escrow Agent shall promptly, but in any event within two (A2) Business Days after receipt of a portion Joint Release Instruction, disburse all or part of the Merger Consideration equal to Three Million Dollars Escrow Funds in accordance with such Joint Release Instruction.
($3,000,000ii) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held Upon receipt by the Escrow Agent in segregated accounts to serve as the sources of payment a copy of certain adjustments to the Merger Consideration required by Section 1.5(d)Final Determination from any Party, and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account shall on the fifth (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative5th) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon Business Day following receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative such determination, disburse as directed, part or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Membersall, as the case may be, upon 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.
(iii) 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 Joint Release Instruction or Final Determination, as applicable.
(iv) 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 (the “Authorized Representatives”) and delivered to the Escrow Agent either (i) by confirmed facsimile only at the fax number set forth in Section 11 below (and receipt confirmed by the Escrow Agent of, and in accordance with, (xAgent) joint written instructions executed by Green Plains and the Sellers’ Representative or (yii) attached to an e-mail received on a Business Day sent to an e-mail address set forth in Section 11 below (and receipt confirmed by the Escrow Agent). In the event a Joint Release Instruction or Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously Determination is delivered to the non-certifying party)Escrow Agent, whether in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such timewriting, by facsimile or from time to timeotherwise, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred authorized to as seek confirmation of such instruction by telephone call back to the person or persons designated in Exhibit A-1 and/or A-2 annexed hereto (the “Call Back Authorized Individuals”), and the Escrow Termination DateAgent 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, executed by an Authorized Representative of applicable Party and actually received and acknowledged by the Escrow Agent.”
Appears in 1 contract
Samples: Merger Agreement (Tilray, Inc.)
Escrow Funds. (ia) Pursuant to an escrow agreement to be entered into on On the Closing Date by and among Green Plainsdate of this Escrow Agreement, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G Buyer is depositing exclusively with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion sum of the Merger Consideration equal to Three Million Dollars ($3,000,000) 400,000 (together with any interest thereon or other earnings thereonproceeds therefrom from the date hereof, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”"Escrow Funds"), and (C) a portion the Escrow Agent acknowledges receipt of the Merger Consideration equal to Five Hundred Thousand Dollars Escrow Funds and deposit thereof into the Escrow Account.
($500,000b) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment The Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow Funds shall be held continuously invested and reinvested by the Escrow Agent in segregated accounts short-term United States obligations issued by or guaranteed by the United States Treasury, or in such other securities or instruments, as may be approved in writing from time to time by the Sellers and the Buyer. Absent joint specific written investment directions from such parties, the Escrow Funds will be invested in the Vista 100% U.S. Treasury Fund, which is a mutual fund for which the Escrow Agent or an affiliate of the Escrow Agent may serve as investment manager, administrator, shareholder servicing agent, and/or custodian or subcustodian, notwithstanding that (i) the sources Escrow Agent or an affiliate of payment of certain adjustments the Escrow Agent receives fees from such funds for services rendered, (ii) the Escrow Agent charges and collects fees for services rendered pursuant to this Escrow Agreement that are separate from the Merger Consideration required by Section 1.5(d)fees received from such funds, and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held (iii) services performed for such funds and pursuant to this Escrow Agreement may at times duplicate those provided to such funds by the Escrow Agent or its affiliates. All interest income or other investment proceeds thereon shall become part of the Escrow Funds.
(c) The Escrow Funds shall not be subject to lien or attachment by any creditor of any party hereto, and shall be used solely for the purpose set forth in a segregated account this Escrow Agreement and the Asset Sale Agreement. Other than as provided herein, the Escrow Funds shall not be subject to set-off.
(over which Green Plains shall have no authority whatsoeverd) Except as provided in Sections 4 or 5 hereof, by way of release authority, investment authority or otherwise, but instead will the Escrow Funds may only be distributed at disbursed from the sole Escrow Account upon the joint written direction of the Sellers Representativeand the Buyer.
(e) Subject to serve as the sources of remaining provisions contained herein, including Sections 4 and 5 hereof, any payment of costs and expenses pursuant to Section 1.7(d). The the Escrow Funds contributed on behalf (including accrued interest) shall automatically include payment of each Global Ethanol Member the Escrow Agent"s compensation in accordance with Section 7 below, after which time payment shall be in proportion automatically made to their Global Ethanol InterestsSellers, as set forth in Exhibit D.without the requirement of any further action by the parties hereto.
(iif) The Adjustment Each of the Buyer and the Sellers, in the notice section of this Escrow shall be disbursed by Agreement, are providing the Escrow Agent to Green Plains or the Global Ethanol Members, with its Tax Identification Number (TIN) as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed assigned by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow Termination DateInternal Revenue Service.”
Appears in 1 contract
Samples: Asset Sale Agreement (Orthovita Inc)
Escrow Funds. (i) Pursuant to an escrow agreement to be entered into on the Closing Date by and among Green PlainsParent, the Sellers’ Stockholder Representative on behalf of the Global Ethanol Members and U.S. Bank National Association PNC Bank, N.A. (or another financial institution proposed by either Green Plains Parent or the Sellers’ Representative Company and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G D with such changes as the Seller’s Stockholder Representative and Green Plains Parent may agree to in writing (the “Escrow Agreement”), Green Plains Parent and the Sellers’ Stockholder Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains Parent and/or Merger Sub shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration an amount in cash equal to Three Million Dollars ($3,000,000) 3,500,000 (together with any interest or other earnings thereon, the “Adjustment Escrow”), and (B) a portion of the Merger Consideration an amount in cash equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) 40,000,000 (together with any interest or other earnings thereon, the “Member FundIndemnity Escrow” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Estimated Merger Consideration required by Section 1.5(d), and 2.3(e)(i) or indemnification obligations of the Global Ethanol Members Company Holders set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account (over which Green Plains shall have no authority whatsoeverIX, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.respectively.
(ii) The Escrow Funds shall be disbursed by the Escrow Agent as follows: (A) the Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or (1) Parent to the Global Ethanol Members, as applicable, extent required to pay an adjustment to the Estimated Merger Consideration under Section 1.5(d2.3(e)(i) or (2) the Stockholder Representative to the extent provided in Sections 2.3(e)(i) and (ii). From ; (B) from time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains Parent to the extent required to pay an indemnification obligation of the Global Ethanol Members Company Holders under Section 9.1 of Article VIIX; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains Parent and the Sellers’ Stockholder Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Section 9.1 of Article VIIX, a Final Award certified as such by Green Plains Parent or the Sellers’ Stockholder Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On ; (C) on the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth Stockholder Representative (on Exhibit D. After behalf of the Company Holders); and (D) after the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains Parent or the Global Ethanol MembersStockholder Representative (on behalf of the Company Holders), as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains Parent and the Sellers’ Stockholder Representative or (y) a Final Award certified as such by Green Plains Parent or the Sellers’ Stockholder Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow Termination Date”.”
Appears in 1 contract
Samples: Merger Agreement (Harris Corp /De/)
Escrow Funds. (i) Pursuant to 1.1.1. The Escrow Funds, initially in an escrow agreement to be entered into on the Closing Date by and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration amount equal to One Hundred Nine Million Three Million Hundred Thousand U.S. Dollars ($3,000,000109,300,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow has been deposited with and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d), and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated separate account located in the United States (over which Green Plains shall have no authority whatsoeverthe “Escrow Account”) for the benefit of HOKU and SANYO, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d)provided in this Agreement. The Escrow Funds contributed on behalf of each Global Ethanol Member Agent shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by not make any payment or distribution from the Escrow Agent to Green Plains or Account except as, and in the Global Ethanol Membersmanner, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VIexpressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SANYO until such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified time as such by Green Plains or funds are required under the Sellers’ Representative (a copy terms of which shall this Agreement to be contemporaneously delivered to HOKU, at which time the non-certifying party)portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU.
1.1.2. Concurrently with the execution of the Escrow Agreement, in each case directing SANYO delivered the Escrow Funds to the Escrow Agent pursuant to make such disbursement. On the Release Date, the entire balance Section 5.2.1 of the Indemnity Amended & Restated Supply Agreement.
1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (less i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts thereof that are subject distributed pursuant to unresolved indemnification claims hereunder Section 1.3 of this Agreement.
1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (each i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such amountfunds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent to Green Plains or the Global Ethanol Membersas, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) custodian for any party for purposes of perfecting a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth security interest therein. At such time, or from time to time, as directed by the Sellers’ RepresentativeAccordingly, the Member Fund will be paid by the Escrow Agent first Parties agree that no person or entity shall have any right to pay have or to hold any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Agent is referred to as the “Escrow Termination DateAccount.”
Appears in 1 contract
Escrow Funds. (i) Pursuant to 1.1.1. The Escrow Funds, initially in an escrow agreement to be entered into on the Closing Date by and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration amount equal to Three Forty-Four Million U.S. Dollars ($3,000,000US$44,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow shall be deposited on the date hereof with, and the Indemnity Escrow shall be held by from and after the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d)date hereof by, and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated separate account located in the United States (over which Green Plains shall have no authority whatsoeverthe “Escrow Account”) for the benefit of HOKU and SOLARFUN, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d)provided in this Agreement. The Escrow Funds contributed on behalf of each Global Ethanol Member Agent shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by not make any payment or distribution from the Escrow Agent to Green Plains or Account except as, and in the Global Ethanol Membersmanner, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VIexpressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SOLARFUN until such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified time as such by Green Plains or funds are required under the Sellers’ Representative (a copy terms of which shall this Agreement to be contemporaneously delivered to HOKU, at which time the non-certifying party)portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU.
1.1.2. Concurrently with the execution of this Agreement, in each case directing SOLARFUN has delivered the Escrow Funds to the Escrow Agent pursuant to make such disbursement. On the Release Date, the entire balance Section 5.4.1 of the Indemnity Supply Agreement.
1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (less i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts thereof that are subject distributed pursuant to unresolved indemnification claims hereunder Section 1.3 of this Agreement.
1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (each i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such amountfunds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent to Green Plains or the Global Ethanol Membersas, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) custodian for any party for purposes of perfecting a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth security interest therein. At such time, or from time to time, as directed by the Sellers’ RepresentativeAccordingly, the Member Fund will be paid by the Escrow Agent first Parties agree that no person or entity shall have any right to pay have or to hold any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Agent is referred to as the “Escrow Termination DateAccount.”
Appears in 1 contract
Escrow Funds. (i) Pursuant to 1.1.1. The Escrow Funds, initially in an escrow agreement to be entered into on the Closing Date by and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration amount equal to One Hundred Nine Million Three Million Hundred Thousand U.S. Dollars ($3,000,000109,300,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d), deposited with and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated separate account located in the United States (over which Green Plains shall have no authority whatsoeverthe “Escrow Account”) for the benefit of HOKU and SANYO, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d)provided in this Agreement. The Escrow Funds contributed on behalf of each Global Ethanol Member Agent shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by not make any payment or distribution from the Escrow Agent to Green Plains or Account except as, and in the Global Ethanol Membersmanner, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VIexpressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SANYO until such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified time as such by Green Plains or funds are required under the Sellers’ Representative (a copy terms of which shall this Agreement to be contemporaneously delivered to HOKU, at which time the non-certifying party)portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU.
1.1.2. Concurrently with the execution of this Agreement, in each case directing SANYO has delivered the Escrow Funds to the Escrow Agent pursuant to make such disbursement. On the Release Date, the entire balance Section 5.2.1 of the Indemnity Supply Agreement.
1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (less i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts thereof that are subject distributed pursuant to unresolved indemnification claims hereunder Section 1.3 of this Agreement.
1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (each i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such amountfunds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by in sole SANYO Initials & Date: HOKU Initials & Date: [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent to Green Plains or the Global Ethanol Membersas, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) custodian for any party for purposes of perfecting a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth security interest therein. At such time, or from time to time, as directed by the Sellers’ RepresentativeAccordingly, the Member Fund will be paid by the Escrow Agent first Parties agree that no person or entity shall have any right to pay have or to hold any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Agent is referred to as the “Escrow Termination DateAccount.”
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Escrow Funds. (a) Concurrently with the closing of the sale of the Notes and the execution and delivery of this Agreement:
(i) Pursuant to an escrow agreement to be entered into on as provided in the Closing Date by and among Green PlainsPurchase Agreement, the Sellers’ Representative on behalf Initial Purchasers will deposit with Escrow Agent $268,812,500 by wire transfer in immediately available funds, representing an amount in cash equal to the net proceeds from the issuance of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing Notes (the “Escrow AgreementNet Proceeds Deposit”), Green Plains and ; and
(ii) the Sellers’ Representative shall appoint the Company or Parent will deposit with Escrow Agent $10,037,500 by wire transfer in immediately available funds, representing an amount in cash equal to hold and disburse the Escrow Funds as provided below. At sum of (x) an amount in cash that, when added to the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion Net Proceeds Deposit equals 100% of the Merger Consideration equal to Three Million Dollars ($3,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion aggregate principal amount of the Merger Consideration equal to Five Million Dollars Notes and ($5,000,000y) the interest that would accrue on the Notes from the date of this Agreement to, but excluding the Final Escrow Redemption Date (the “Indemnity Escrow”), amounts described in clauses (x) and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” andy), together with the Adjustment Net Proceeds Deposit and all interest, dividends and other distributions and payments thereon received by Escrow and Indemnity EscrowAgent, less any property and/or funds distributed or paid by Escrow Agent in accordance with this Agreement, collectively, the “Escrow Funds”).
(b) All assets, including any cash and Temporary Cash Investments (as defined in each case Section 1.01 of the Indenture) held by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow Agent from time to time pursuant to this Agreement, shall be held by Escrow Agent for the Company but as collateral, and subject to the rights of the Trustee and holders of the Notes, as secured parties, under this Agreement.
(c) Notwithstanding anything in this agreement to the contrary, the parties hereto hereby agree that:
(i) (x) Escrow Agent’s “Jurisdiction” is the State of New York, (y) the Escrow Account is and shall be maintained by Escrow Agent as a “Deposit Account,” and (z) Escrow Agent is acting with respect to the Escrow Account as a “Bank,” in segregated accounts each case within the meaning of, and for purposes of, Sections 9-102, 9-104 and 9-304 of the New York Uniform Commercial Code, as amended (the “Code”);
(ii) the Escrow Account is not evidenced by a negotiable instrument or any other writing that evidences a right to serve as the sources of payment of certain adjustments a monetary obligation and is of a type that in the ordinary course of business is transferred by delivery with any necessary endorsement or assignment;
(iii) Escrow Agent shall not change the name or account number of the Escrow Account without the prior written consent of the Trustee and the Company and shall not change the customer.
(d) Notwithstanding anything in this agreement to the Merger Consideration required contrary, Escrow Agent agrees that it shall comply with all instructions originated by the Trustee directing disposition of funds in or otherwise with respect to the Escrow Account, without further consent by the Company or any other person or entity so long as this Agreement is in effect. Escrow Agent hereby represents that it has not, and it hereby agrees that it will not, enter into any agreement or take any action which gives any person or entity other than Trustee control (within the meaning of Section 1.5(d9-104 of the Code) over the Escrow Account. The parties hereto agree that the Trustee shall have exclusive control, and sole dominion and control, over the Escrow Account, and Escrow Agent shall not accept or comply with instructions given by any person other than the Trustee given in accordance with the provisions of this Agreement.
(e) In the event that Escrow Agent has or subsequently obtains by agreement, operation of law or otherwise a security interest in the Escrow Account, Escrow Agent hereby agrees that such security interest shall be subordinate to the security interest of the Trustee. Except as contemplated by Sections 7 and 8 with respect to the reimbursement of Escrow Agent’s indemnification, fees and expenses, the financial assets with respect thereto standing to the credit of the Escrow Account will not be subject to deduction, set-off, banker’s lien or any other right in favor of any person or entity other than the Trustee.
(f) Except for this Agreement, the Fee Schedule (as defined in Section 7(a) herein), and indemnification obligations of there are no other agreements entered into among the Global Ethanol Members parties hereto with respect to the Escrow Account. Except as expressly set forth in Article VIthis Section 1, in the event of any conflict between this Section 1 or any portion hereof, any other provision of this Agreement or any other agreement now existing or hereafter entered into, the terms of this Section 1 shall prevail. In addition, in the event of any conflict between the terms of this Agreement and the Fee Schedule, this Agreement shall control.
(g) It is the intention of the parties hereto that neither Parent nor any of its subsidiaries (other than the Company to the extent set forth in clause (h) below) have any right, title or interest in the Escrow Funds.
(h) It is the intention of the parties hereto that this Agreement create a true escrow and the Company have no ownership of, or rights in, the Escrow Funds, other than the limited contractual right to receive the Escrow Funds under the circumstances specified in this Agreement. The Member Fund Escrow Funds shall be held by the Escrow Agent in a separate, segregated account (over which Green Plains account. In no event shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The any Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains commingled with any other funds or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made monies held by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and Agent, nor shall any Escrow Funds be exchanged for any currency other than the Sellers’ Representative or (y) currency in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out are initially received by the Escrow Agent is referred to as the “Escrow Termination DateAgent.”
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Escrow Funds. (ia) Pursuant to an escrow agreement to be entered into on the Closing Date by and among Green PlainsConcurrent with, or prior to, the Sellers’ Representative on behalf of execution hereof, Buyer has deposited a lump sum (the Global Ethanol Members and “Original Deposit”) equal to ten million dollars ($10,000,000) (such amount, including any interest or earnings accrued thereon, the “Escrow Funds”) with U.S. Bank National Association Bank, N.A. (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in ) pursuant to an escrow agreement dated as of the form date hereof and attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing A (the “Escrow Agreement”), Green Plains which was executed and delivered by Seller, Buyer and the Sellers’ Representative Escrow Agent. The Escrow Funds shall appoint be (i) held by the Escrow Agent in escrow as a deposit paid by Buyer and credited against the Purchase Price at the Closing, and (ii) promptly released by the Escrow Agent to hold Buyer or Seller, as applicable, in each case, pursuant to the terms of, and disburse at the times prescribed by, this Section 2.2, Section 8.4 and Article IX hereof and the Escrow Agreement. At Closing, the Escrow Funds will be applied as provided set forth in Section 2.2(d) below. At .
(b) Subject to Section 2.2(c), on or prior to September 16, 2009 (such date, the Closing“Financing Deadline”), Green Plains Buyer shall (i) obtain the Financing (as defined in Section 6.15 hereof), which Financing shall be in the amount necessary to consummate the transactions contemplated herein, including payment in full of the Purchase Price, and (ii) provide confirmation that it has obtained the Financing to Seller by delivery of a written certification signed by an executive officer of Buyer, which shall include details and evidence of the Financing as are reasonably satisfactory to Seller.
(c) Subject to Section 2.2(b), in the event that the Financing has not been obtained by Buyer on or prior to the Financing Deadline, and each of (1) the conditions set forth in Sections 7.2(a) and 7.2(b) are satisfied at the Financing Deadline, and (2) the Vessel is Fully Operational at the Financing Deadline, then Buyer and PGP, jointly and severally, shall, on or prior to the second Business Day following the Financing Deadline, deposit with the Escrow Agent: (A) a portion of the Merger Consideration equal to Three Million Dollars ($3,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars Agent an additional five million dollars ($5,000,000) (the “Indemnity Escrow”)Additional Deposit,” which shall, and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings accrued thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the be considered “Escrow Funds”” for all purposes of this Agreement), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d), and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements if the condition set forth in clause (1) of this Section 2.2(c) is satisfied at the Financing Deadline, but the condition set forth in clause (2) of this Section 2.2(c) is not satisfied at the Financing Deadline, and subsequently, the condition set forth in clause (1) of this Section 2.2(c) remains satisfied and the condition set forth in clause (2) of this Section 2.2(c) becomes satisfied, then the Additional Deposit shall be made on or prior to the fifth Business Day following the first date both such conditions are satisfied. If the Additional Deposit is not timely made, if applicable, as provided in this Section 2.2, Seller may terminate this Agreement, subject to the provisions of Article VIII, and, following such termination, Seller may (i) retain the Original Deposit and (ii) bring suit against Buyer (or PGP under Section 11.16) for the amount of the Additional Deposit.
(d) At the Closing, a portion of the Escrow Funds then on deposit equal to (i) five million dollars ($5,000,000) shall be retained under the Escrow Agreement and will be available to satisfy any indemnification claims of Buyer under Article IX hereof, as more fully set forth in, and pursuant to, the terms of the Escrow Agreement, and (ii) an amount that the parties reasonably agree (regardless of the amount reserved for any Seller Pre-Closing Obligations by Seller or the Company) is sufficient to cover all Seller Pre-Closing Obligations known at the time of the Closing shall be retained under the Escrow Agent only upon receipt Agreement and will be available to Seller or Buyer after the Closing to satisfy (in whole or in part) or reimburse either of them for any such Seller Pre-Closing Obligations, as more fully set forth in, and pursuant to, the terms of the Escrow Agreement (both of (xi) joint written instructions executed by Green Plains and the Sellers’ Representative (ii) together, and any interest or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VIearnings accrued thereon, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered deemed to constitute the non-certifying party“Escrow Funds” on and after the Closing for all purposes of this Agreement). If, in each case directing during the Escrow Agent to make such disbursement. On sixty (60) day period following the Release Closing Date, the entire balance parties reasonably agree that an amount previously assigned to a Seller Pre-Closing Obligation pursuant to this Section 2.2(c) should be amended, then the amount of the Indemnity aggregate Seller Pre-Closing Obligations retained under the Escrow (less any amounts thereof that are subject Agreement pursuant to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)this Section 2.2(c) shall be disbursed by the Escrow Agent amended to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as reflect such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow Termination Dateagreement.”
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Escrow Funds. (i) Pursuant to an escrow agreement to be entered into on the Closing Date by The Parties shall act in accordance with, and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to shall hold and disburse release the Escrow Funds as provided below. At in, this Section 4(a) as follows:
(i) Upon receipt of a Joint Release Instruction (which Landscape and the ClosingCompany Partners’ Representative acknowledge and agree shall be provided by Landscape and the Company Partners’ Representative in accordance with Section 13.4(d), Green Plains shall deposit with the Escrow Agent: (A) a portion Section 13.5 or 13.6 of the Merger Consideration equal Agreement, as applicable) with respect to Three Million Dollars ($3,000,000) (together with any interest or other earnings thereonthe Escrow Funds, the “Adjustment Escrow”)Escrow Agent shall promptly, but in any event within two (B2) Business Days after receipt of a portion Joint Release Instruction, disburse all or part of the Merger Consideration equal to Five Million Dollars Escrow Funds in accordance with such Joint Release Instruction.
($5,000,000ii) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held Upon receipt by the Escrow Agent in segregated accounts to serve as the sources of payment a copy of certain adjustments to the Merger Consideration required by Section 1.5(d)Final Determination from any Party, and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account shall on the fifth (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative5th) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon Business Day following receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative such determination, disburse as directed, part or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Membersall, as the case may be, upon receipt of the Escrow Funds (but only to the extent funds are available in the Escrow Funds) in accordance with such Final Determination; provided that notwithstanding anything in this Section 4(a)(ii) to the contrary, Landscape and the Company Partners’ Representative acknowledge and agree that this Section 4(a)(ii) shall not relieve Landscape or the Company Partners’ Representative of any of their respective rights or obligations under the Merger Agreement, including Section 13.3(c)(iii) and Section 13.4 thereof. The Escrow Agent will act on such Final Determination without further inquiry.
(iii) 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 Joint Release Instruction or Final Determination, as applicable.
(iv) 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 X-0, Xxxxxxx X-0 and Exhibit A-3 and delivered to the Escrow Agent of, and either (i) by confirmed facsimile only at the fax number set forth in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative Section 11 below or (yii) attached to an e-mail delivered on a Business Day to the e-mail address set forth in Section 11 below. In the event a Joint Release Instruction or Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously Determination is delivered to the non-certifying party)Escrow Agent, whether in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such timewriting, by facsimile or from time to timeotherwise, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred authorized to as 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 Termination DateAgent 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, executed by an authorized signer of applicable Party set forth on Exhibit X-0, Xxxxxxx X-0 or Exhibit A-3 actually received and acknowledged by the Escrow Agent. Notwithstanding the foregoing, no changes or additions shall be made to the persons set forth on Exhibit A-1 without the written consent of Xxxx Xxxxxxxxx, Xxxx Xxxxx or Xxxx San Xxxxxx.”
Appears in 1 contract
Escrow Funds. (i) Pursuant to an escrow agreement to be entered into on Immediately following the Closing Date by and among Green PlainsEffective Time, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable Buyer shall deliver to the other custody of them), as escrow agent The Bank of New York Mellon Corporation (in such capacity, the “Escrow Agent”), in without any act of the form attached hereto as Exhibit G with Stockholders, the following:
(i) a number of Shares of Buyer Stock (such changes as the Seller’s Representative and Green Plains may agree to in writing (shares, the “Escrow AgreementShares”), Green Plains and rounded to the Sellers’ Representative shall appoint nearest whole number, equal to the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agentfollowing product: (A) a portion of the Merger Consideration equal to Three Million Dollars ($3,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), 7.5% multiplied by (B) a portion of the Nominal Net Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and multiplied by (C) a portion fraction, the numerator of which is the Nominal Net Merger Consideration equal Consideration, minus the amounts of cash paid pursuant to Five Hundred Thousand Dollars Section 2.10 and Section 2.11 in lieu of Buyer Stock that would have otherwise been delivered pursuant to clause ($500,000i) of Section 2.1(c) and clause (together with any interest or other earnings thereoni) of Section 2.1(d), and the denominator of which is the Nominal Net Merger Consideration; and
(ii) an amount in cash (such cash, the “Member Fund” andEscrow Cash”) equal to the following product: (A) 7.5% multiplied by (B) the Nominal Net Merger Consideration multiplied by (C) the Closing Price multiplied by (D) a fraction, together with the Adjustment numerator of which is the cash paid pursuant to Section 2.10 and Section 2.11 in lieu of shares of Buyer Stock that would have otherwise been delivered pursuant to clause (i) of Section 2.1(c) and clause (i) of Section 2.1(d) and the denominator of which is the Nominal Net Merger Consideration. The Escrow Shares and Indemnity Escrow, the Escrow Cash shall comprise the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow which shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d)pursuant to, and indemnification obligations shall be governed by, the terms of the Global Ethanol Members set forth in Article VI. The Member Fund shall Escrow Agreement to be held entered into by and among Buyer, the Stockholders’ Representative and the Escrow Agent in a segregated account (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d)Agent. The Escrow Funds contributed on behalf of each Global Ethanol Member shall be held in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow escrow and shall be disbursed available to settle certain contingencies as provided in Section 2.5 and compensate the Buyer Indemnified Parties for any Losses suffered or incurred by them and for which they are entitled to recovery under Article IX of this Agreement, and will be allocated among and released and distributed to the Stockholders and/or Buyer in accordance with the Escrow Agent Agreement (the Escrow Shares and Escrow Cash released or distributed from the Escrow Funds to Green Plains or the Global Ethanol MembersStockholders under this Agreement, as applicableif any, under Section 1.5(dbeing the “Released Escrow Consideration”). From time The Released Escrow Consideration is intended to time prior to be treated for Tax purposes as consideration for the Release Date, Company Stock purchased by Buyer from the Indemnity Escrow Stockholders in the Merger and shall be disbursed by the Escrow Agent treated as such consideration (subject to Green Plains any requirement to treat a portion as imputed interest) for all Tax purposes except to the extent otherwise required by a final determination of a Governmental Body. Notwithstanding anything to pay an indemnification obligation the contrary in this Agreement, Buyer makes no representations or warranties to the Company or the Stockholders regarding the Tax treatment of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative transactions contemplated in this Agreement or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance any of the Indemnity Escrow (less Tax consequences to any amounts thereof that are subject Stockholders relating to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth thereinthose transactions. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses Each of the Sellers’ RepresentativeCompany and each Stockholder must rely solely on his, and then pro rata among the Global Ethanol Members; providedher or its own Tax advisors in connection with such transactions. No Stockholder may, howeverdirectly or indirectly, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement sell, exchange, transfer or otherwise dispose of all Pending Claim Amounts. As used hereinhis, the date as her or its right to receive any portion of which all amounts in the Escrow Funds have been paid out (except by will or by operation of the Escrow Agent is referred to as the “Escrow Termination DateLaws of intestate succession). Any such purported sale, exchange, transfer or disposition shall be null and void.”
Appears in 1 contract
Escrow Funds. (i) Pursuant to an escrow agreement to be entered into on the Closing Date by The Parties shall act in accordance with, and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to shall hold and disburse release the Escrow Funds as provided below. At the Closingin, Green Plains shall deposit this Section 4(a) as follows:
(i) Upon receipt of a Joint Release Instruction with respect to the Escrow Agent: Funds, the Escrow Agent shall promptly, but in any event within two (A2) Business Days after receipt of a portion Joint Release Instruction, disburse all or part of the Merger Consideration equal to Three Million Dollars Escrow Funds in accordance with such Joint Release Instruction.
($3,000,000ii) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held Upon receipt by the Escrow Agent in segregated accounts to serve as the sources of payment a copy of certain adjustments to the Merger Consideration required by Section 1.5(d)Final Determination from any Party, and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account shall on the fifth (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative5th) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon Business Day following receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative such determination, disburse as directed, part or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Membersall, as the case may be, upon receipt 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.
(iii) Without limiting the generality of Section 4(a)(i) and (ii), (A) the Parties agree to deliver to the Escrow Agent, from time to time within three (3) Business Days after the determination of any of the Actual Working Capital, Actual Net Indebtedness and Actual Acquisition Expenses pursuant to Section 2.8 of the Purchase Agreement, a Joint Release Instruction as to the release and disposition of the applicable portion of the Adjustment Escrow Amount in accordance with Section 2.8(g) - (i) of the Purchase Agreement and (B) promptly following completion of payments pursuant to this Section 4(a)(iii), the Parties shall deliver a Joint Release Instruction to the Escrow Agent instructing the Escrow Agent to release any remaining amount in the Adjustment Escrow Account to Seller.
(iv) Without limiting the generality of Section 4(a)(i) and (ii), in the event and to the extent that the Parties determine that any Purchaser Indemnified Party is entitled to any amount pursuant to Article IX of the Purchase Agreement, the Parties may deliver a Joint Release Instruction to the Escrow Agent requesting that the Escrow Agent distribute all or a portion of the Indemnity Escrow Amount to Purchaser in satisfaction of such claim.
(v) Without limiting the generality of Section 4(a)(i) and (ii), the Parties agree to deliver to the Escrow Agent, on the third (3rd) Business Day following the Release Date, a Joint Release Instruction as to the release and Disposition of the Indemnity Escrow Amount, in an aggregate amount (the “Disbursement Amount”) equal to the remaining Indemnity Escrow Amount less amounts, if any, that are (x) subject to a pending Joint Release Instruction or Final Determination received by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered prior to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be Release Date but not yet paid by the Escrow Agent first or (y) the subject of any pending claim for indemnification by Purchaser set forth in a notice delivered to pay any remaining costs Seller in accordance with Sections 9.2 and expenses 9.3 of the Sellers’ Representative, and then pro rata among Purchase Agreement prior to the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement Release Date.
(vi) All payments of all Pending Claim Amounts. As used herein, the date as any part of which all amounts in the Escrow Funds have been paid out to (a) Purchaser or (b) the Seller, as the case may be, shall be made by wire transfer of immediately available funds or check as set forth in the Joint Release Instruction or Final Determination, as applicable.
(vii) 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 A-2 and delivered to the Escrow Agent either (i) by confirmed facsimile only at the fax number set forth in Section 11 below or (ii) attached to an e-mail received on a Business Day from an e-mail address set forth in Section 11 below. In the event a Joint Release Instruction or Final Determination is delivered to the Escrow Agent, whether in writing, by email or otherwise, the Escrow Agent is referred authorized to as seek confirmation of such instruction by telephone call back to the person or persons designated in Exhibits A‑1 and A‑2 annexed hereto (the “Call Back Authorized Individuals”), and the Escrow Termination DateAgent may rely upon the confirmations of anyone reached at a telephone number set forth in Exhibit A-1 or Exhibit A-2 purporting to be the Call Back Authorized Individual associated with such telephone number. 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, executed by an authorized signer of applicable Party set forth on Exhibit A-1 or Exhibit A-2, actually received and acknowledged by the Escrow Agent.”
Appears in 1 contract
Escrow Funds. (ia) Pursuant to an escrow agreement In accordance with the Escrow Agreement, Parent shall deposit or cause to be entered into on deposited with the Closing Date by and among Green Plains, Escrow Agent the Sellers’ Representative on behalf of Indemnification Escrow Shares (such shares less any disbursements therefrom in accordance with the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacityEscrow Agreement, the “Indemnification Escrow AgentFund”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration equal to Three Million Dollars ($3,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by for the Escrow Agent in segregated accounts to serve as purpose of securing the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d), and indemnification obligations of the Global Ethanol Members Stockholders set forth in Article VI. The Member Fund shall be held by this Agreement and the Escrow Agent in a segregated account (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses obligations pursuant to Section 1.7(d2.17(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be , Section 2.17(f), and Section 6.03, and for other purposes provided for in proportion to their Global Ethanol Interests, as set forth in Exhibit D.
(ii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VIthis Agreement; provided, however, that the Indemnification Escrow Fund shall not limit the indemnification obligations of the Principals set forth in this Agreement and the obligations pursuant to Section 2.17(d) and Section 6.03.
(b) In accordance with the Escrow Agreement, Company shall deposit or cause to be deposited with the Escrow Agent the Stockholder Representative Expense Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “Stockholder Representative Expense Fund”), to be held for the purpose of funding any expenses of Stockholder Representative arising in connection with the administration of Stockholder Representative's duties in this Agreement after the Effective Time.
(c) Notwithstanding anything in this Agreement to the contrary, there shall be made by no restriction on the release of any portion of the Indemnification Escrow Agent only upon receipt Fund to Parent. Subject to any claims or rights of (x) joint written instructions executed by Green Plains and Parent to the Sellers’ Representative or (y) in the case of a disbursement requested Indemnification Escrow Fund with respect to an indemnification claim under Article VILosses, a Final Award certified the Post-Closing Adjustment, Direct Claims, Third Party Claims, or other provisions of this Agreement (including, without limitation, pursuant to Section 5.12 and Section 5.13), and subject to the terms of the Escrow Agreement, Indemnification Escrow Shares will be released from the Indemnification Escrow Fund as such by Green Plains or follows: (i) Seven Hundred Sixty-Three Thousand Two Hundred (763,200) Indemnification Escrow Shares will be released for delivery in accordance with the Sellers’ Representative Consideration Spreadsheet six (a copy 6) months after Closing; (ii) Two Million Two Hundred Eighty-Nine Thousand Six Hundred (2,289,600) Indemnification Escrow Shares will be released for delivery in accordance with the Consideration Spreadsheet twelve (12) months after Closing, and (iii) Four Million Five Hundred Seventy-Nine Thousand Two Hundred (4,579,200) Indemnification Escrow Shares will be released for delivery in accordance with the Consideration Spreadsheet eighteen (18) months after Closing; provided however, that in each case, number of which Indemnification Escrow Shares to be released from the Indemnification Escrow Fund shall be contemporaneously less any portion of the Indemnification Escrow Fund that is determined, in the good faith reasonable judgment of Parent, to be necessary to satisfy the portion of the unsatisfied claims or rights of Parent to the Indemnification Escrow Fund with respect to Losses, the Post-Closing Adjustment, Direct Claims, Third Party Claims, or other provisions of this Agreement, pursuant to a written notice delivered to the non-certifying party), Stockholders’ Representative on or prior to the scheduled time of release above. Any Indemnification Escrow Shares delivered to Parent shall reduce the amount of Indemnification Escrow Shares in each case directing the Indemnification Escrow Agent Fund and such shares shall not be available for delivery to make such disbursementany other Person other than Parent. On the Release Date, the entire balance At least Two Million of the Indemnity Indemnification Escrow Shares to be released eighteen (less any amounts thereof that are 18) months after Closing, subject to unresolved indemnification claims hereunder (each such amountthis Agreement, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent shares allocated to the Global Ethanol Members, pro rataPrincipals in accordance with the Consideration Spreadsheet. Any Indemnification Escrow Shares released from the Indemnification Escrow Fund shall remain subject to the Lock Up Agreements, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow Termination Dateapplicable.”
Appears in 1 contract
Samples: Merger Agreement (Item 9 Labs Corp.)
Escrow Funds. (i) On the Closing Date, Buyer shall deposit with the Escrow Agent (as defined below) $20,000,000 (the “Escrow Funds”), by wire transfer of immediately available funds.
(ii) Pursuant to the terms of an escrow agreement to be entered into on the Closing Date by and among Green PlainsBuyer, the Sellers’ Representative (on behalf of the Global Ethanol Members Sellers, the Blocker Sellers and U.S. the Target Optionholders) and Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them)America, N.A. as escrow agent (including any successor in such capacity, the “Escrow Agent”), ) substantially in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing F (the “Escrow Agreement”), Green Plains Buyer and the Sellers’ Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration equal to Three Million Dollars ($3,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d), and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf of each Global Ethanol Member shall be in proportion to their Global Ethanol Interests, as set forth in Exhibit D..
(iiiii) The Adjustment Escrow shall be disbursed by the Escrow Agent to Green Plains or the Global Ethanol Members, as applicable, under Section 1.5(d). From time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains Buyer and the Sellers’ Representative or shall instruct the Escrow Agent to disburse the Escrow Funds as follows:
(yA) to Buyer, to the extent provided in Section 2.3(e)(i) (Working Capital; Closing Date RMR);
(B) to Buyer, to the case extent provided in Section 2.3(f)(i) (Working Capital; Closing Date RMR); and
(C) simultaneously with the payments, if any, described in immediately preceding clauses (A) and (B) or, if no payments are required to be made to Buyer pursuant to such clauses, the entire remaining balance of a disbursement requested the Escrow Funds, together with respect all interest accrued thereon, if any, to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy on behalf of which shall be contemporaneously delivered the Sellers, the Blocker Sellers and the Target Optionholders). Subject to the non-certifying partySection 2.4(c) (Use and Disbursement of Payment Fund), in each case directing the any Escrow Agent Funds paid to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or pursuant to this Section 2.4(b) (yEscrow Funds) a Final Award certified as such shall be distributed by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the nonSellers and the Blocker Sellers (and the Target Optionholders, if applicable) in accordance with the arrangements among such Persons (the “Seller-certifying partyBlocker Seller Agreement”), in each case directing the Escrow Agent and Buyer shall have no further obligations to make such disbursement in the amounts and any Seller or any Blocker Seller with respect to the Persons set forth therein. At such timepayment of any Escrow Funds, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses regardless of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow Termination Date’s compliance or any alleged noncompliance with such Seller-Blocker Seller Agreement.”
Appears in 1 contract
Samples: Securities Purchase Agreement (Ascent Capital Group, Inc.)
Escrow Funds. (ia) Pursuant to an escrow agreement to be entered into on As exclusive security and remedy for the Closing Date by indemnity provided for in Section 9.2(a) and among Green Plains(b) of this Agreement, the Sellers’ Representative on behalf Escrow Shares (defined in Section 2.4(f) hereof) shall be registered in the names of the Global Ethanol Members and U.S. Bank National Association securityholders of Company but shall be deposited (or another financial together with assignments in blank executed by the securityholders of Company in connection with the surrender of their Certificates) with an institution proposed selected by either Green Plains or Parent with the Sellers’ reasonable consent of the Holders' Representative and reasonably acceptable to the other of them), as escrow agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein and in such capacityan Escrow Agreement among Parent, the “Escrow Agent”), Agent and the Holders' Representative (the "Escrow Agreement") substantially in the form attached hereto as Exhibit G I. Subject to the terms of Section 9.3(b) of this Agreement, upon compliance with such changes as the Seller’s Representative terms hereof and Green Plains may agree to in writing (the “terms of the Escrow Agreement”), Green Plains and the Sellers’ Representative Parent Indemnitees shall appoint be entitled to obtain indemnification from the Escrow Agent Fund for all Parent Indemnifiable Damages covered by the indemnity provided for in Section 9.2 of this Agreement (it being understood that each Company Indemnitor's liability under this Agreement shall be limited to hold and disburse the Escrow Funds as provided below. At the Closing, Green Plains shall deposit with the Escrow Agent: (A) a portion of the Merger Consideration equal to Three Million Dollars ($3,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d), and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a segregated account (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the sole direction of the Sellers Representative) to serve as the sources of payment of costs and expenses pursuant to Section 1.7(d). The Escrow Funds contributed on behalf Agent, Parent, the Surviving Corporation and Merger Sub may rely upon any decision, act, consent or instruction of the Holders' Representative as being the decision, act, consent or instruction of each Global Ethanol Member shall be and all of the stockholders of Company. The Escrow Agent, Parent and Merger Sub are hereby relieved from any liability to any person for any acts done by them in proportion accordance with such decision, act, consent or instruction of the Holders' Representative.
(b) At any time until the earlier of the Expiration Date or the termination of the Escrow Agreement as provided therein, if any Parent Indemnitee makes a claim for Indemnifiable Damages and is entitled to their Global Ethanol Interestsindemnification pursuant to Section 9.2 hereof, as the Escrow Agent shall, upon compliance with the procedures set forth in Exhibit D.
the Escrow Agreement, release to Parent (iior other applicable Parent Indemnitee) The Adjustment such amount from the Escrow Fund which is equal in value to such Indemnifiable Damages. Escrow Shares so released shall be disbursed valued pursuant to the terms and conditions of the Escrow Agreement. Upon a distribution by the Escrow Agent to Green Plains Parent (or the Global Ethanol Members, as applicable, under Section 1.5(d). From time other applicable Parent Indemnitee) pursuant to time prior to the Release Datethis Section, the Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow Termination Datecorrespondingly reduced.”
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