Escrow Payment. (a) EBIDTA shall be determined upon receipt of a combined audited income statement of Seller for the current fiscal year beginning on January 1, 2002 and ending on the date of the Closing without giving effect to the transactions contemplated by this Agreement and of Purchaser beginning on the date of the Closing and ending on December 31, 2002 (the "Audited Financials"). Purchaser shall maintain separate books and records for the operations of Purchaser for the fiscal year ending December 31, 2002 for purposes of calculating EBITDA and shall not combine the results of operations of Charlotte during 2002. Seller's Financial Statements shall be audited by Grant Thornton, LLP. Seller sxxxx xxxx xxx right to consult with Parent's management and review the calculation of EBITDA. If Seller disagrees with the calculation or any calculation of an Earn-Out under Section 4.03, it may communicate its disagreement with Grant Thornton, LLP whose detxxxxxxxxxx, xxde prior to the date Parent files any report with the SEC, shall be conclusive. If EBITDA is:
(i) $1,625,000 or more, the entire Escrow shall be released to Seller;
(ii) between $1,125,000 and $1,624,999, 50% of the Escrow shall be released to Seller and the balance of Parent's Common Stock shall be cancelled; and
(iii) less than $1,125,000, no Escrow Payment shall be due and all shares of Parent's Common Stock under Section 4.01(b) shall be cancelled. To the extent that shares of Parent's Common Stock are not released to Seller, the value (determined as of the Closing Date using the price referred to in Section 4.01(b) times the number of shares cancelled) shall be added to Earn-Out 2 described in Section 4.03(b).
(b) Once earned, Parent's Common Stock shall be released from Escrow and delivered upon the later of (i) six months following the Closing Date, or (ii) five business days following receipt of the Audited Financials. At Closing, Parent and Seller shall enter into a Registration Rights Agreement in the form attached hereto as Exhibit A (the "Registration Rights Agreement") and a Lock-Up Agreement in the form attached hereto as Exhibit B (the "Lock-Up Agreement").
Escrow Payment. Simultaneously with the delivery of the consents by the Consenting Shareholders (as defined in the Merger Agreement) (the "Delivery Date"), Acquiror will deliver or cause to be delivered to Escrow Agent an irrevocable, direct pay letter of credit issued to Escrow Agent on behalf of Acquiror by Banque Paribas (the "Initial Issuing Bank") in the amount of $75,000,000.00 (the "Escrow Payment"). If Acquiror fails to comply with the requirements of the preceding sentence, Acquiror will on the day immediately following the Delivery Date pay to the Escrow Agent in immediately available funds the sum of $75,000,000.00. Acquiror, at its option and at its expense, may replace the Initial Letter of Credit (or any Replacement Letter of Credit) by delivery of another irrevocable, direct pay letter of credit in the amount of $75,000,000.00 issued by an institution that is reasonably acceptable to the Company, and in a form that is reasonably acceptable to the Company (any such other letter of credit being referred to herein as a "Replacement Letter of Credit"). Upon receipt of a Replacement Letter of Credit, Escrow Agent will surrender the replaced letter of credit to the issuing institution for cancellation. Any letter of credit held by the Escrow Agent at any time pursuant to this Agreement is referred to herein as the "Letter of Credit," and any institution that has issued such Letter of Credit is referred to herein as the "Issuing Bank".
Escrow Payment. Evidence of payment of the Escrow Payment to the Escrow Agent;
Escrow Payment. (a) If a Parent Indemnitee is entitled to indemnification hereunder pursuant to Section 7.2(a) (other than Section 7.2(a)(vi)), (i) first, such Parent Indemnitee shall recover any Losses from the Indemnity Escrow Account pursuant to Section 7.3(a), (ii) second, such Parent Indemnitee shall recover such Losses under the R&W Insurance Policy, if applicable, and (iii) third, solely with respect to claims under Section 7.2(a)(iii) or (vii) or as set forth in Section 7.3(d) or Section 7.3(f) and breaches or inaccuracies of Fundamental Representations, such Parent Indemnitee shall recover any remaining Losses to which such Parent Indemnitee is entitled directly from the Stockholders severally in accordance with Section 7.2(a) and to the extent permitted pursuant to Section 7.3.
(b) If a Parent Indemnitee is entitled to indemnification hereunder pursuant to Section 7.2(a)(vi), it may recover any Losses only from the Special Escrow Account and may not recover any remaining Losses directly from the Stockholders.
(c) Within five (5) Business Days after the resolution of any claim for indemnification for which a Parent Indemnitee is entitled to recover Losses from the Indemnity Escrow Account or the Special Escrow Account, Parent and the Stockholder Representative shall jointly instruct the Escrow Agent to deliver from the Indemnity Escrow Account or Special Escrow Account, as applicable, to such Parent Indemnitee the amount of such Losses. Within five (5) Business Day after the resolution of any claim for indemnification for which a Parent Indemnitee is entitled to recover Losses directly from a Stockholder, such Stockholder shall deliver to such Parent Indemnitee the amount for which it is directly responsible by wire transfer of immediately available funds to an account specified by Parent.
(d) Within five (5) Business Days after the resolution of any claim for indemnification for which a Stockholder Indemnitee is entitled to recover Losses from Parent, Parent shall deliver to such Stockholder Indemnitee the amount for which it is responsible by wire transfer of immediately available funds to an account(s) specified by the Stockholder Representative.
Escrow Payment. As contemplated by paragraph 1, above, Xxxx Xxxx shall -------------- pay into escrow $25,000,000.00, pursuant to the terms of the Escrow Agreement.
Escrow Payment. The Escrow Agent shall release funds from the Escrow Account on the next business day, or as soon thereafter as the investments have matured and funds are available for distribution:
(a) To the applicable Noteholders upon the termination of the set-off rights provided in Section 5.5 of the Note Agreement and Section 10(a) and 10(b) of the Asset Purchase Agreement on the date which is 18 months following the date of the Closing; provided, however, that the Escrow Agent shall not release to the Noteholders funds in an amount equal to the amount claimed by the Borrower pursuant to such provisions in a notice (a "Claim Notice") delivered to the Escrow Agent before such time, which notice shall specify the amount claimed and the basis for such claim.
(b) To the applicable Noteholders or the Borrower, as the case may be, upon the Note Series Representative and the Borrower duly executing and delivering to the Escrow Agent a Certificate Authorizing Release in the form attached hereto as Exhibit A authorizing release of funds to the Noteholders of record and/or to the Borrower, as the case may be, at such times and in such amounts as appropriate to reflect the resolution of a claim for which the Escrow Agent had received a Claim Notice.
(c) To the applicable Noteholders within 20 business days following March 31, June 30, September 30 or December 31 in any year in which an Escrow Account holds funds in an amount equal to the net investment income earned by such Escrow Account during the fiscal quarter then ended and not previously disbursed. Each Noteholder shall be entitled to receive its Percentage Interest in the Escrow Funds contained in the Escrow Account upon any disbursement of funds to Noteholders from the Escrow Account under this Section 8.
Escrow Payment. A non-transferable, contingent right to distributions of funds (together with earnings thereon) to be held in one or more escrow accounts pursuant to the Escrow Agreement from and after the Effective Time, to secure purchase price adjustment obligations to Parent and indemnification obligations to the Parent Indemnified Parties attributable to such Company Capital Stock, such distributions to be paid in accordance with Section 8.2 (the “Escrow Payment”).
Escrow Payment. A non-transferable, contingent right to distributions of Escrow Payment attributable to each Company Common Unit subject to such Company Option, such distributions to be paid in accordance with Section 3.02.
Escrow Payment. The Parties acknowledge that Buyer has placed Two Hundred Fifty Thousand Dollars ($250,000) in an escrow account (the "Escrow Deposit") with the Escrow Agent as a good faith deposit to be applied at Closing against Buyer's obligation to deliver the Purchase Price. The Escrow Deposit becomes non-refundable on full execution of this Agreement and upon final completion of the Exhibits and Schedules hereto (approved by Buyer and Seller) including any supplements required by Section 5.6; provided, however, that the Escrow Deposit is refundable to Buyer in the event of (i) default of this Agreement by Sellers or Controlling Shareholders, (ii) failure to obtain the requisite third-party consents identified by Buyer on or before ten (10) days prior to Closing, or failure to obtain governmental consents to consummate the transactions contemplated hereby, or (iii) the exercise of Buyer's rights to terminate this Agreement as contemplated by Section 5.8, Section 5.13 and Section 9.1 hereof.
Escrow Payment. An amount of cash equal to Six Million Dollars ($6,000,000.00) (such amount, the “Escrow Amount”) shall be paid by Buyer by wire transfer at the Closing to JPMorgan Chase Bank, N.A. as escrow agent (the “Escrow Agent”), which Escrow Amount will be held and disbursed pursuant to the terms of an escrow agreement in the form of Exhibit 2.2(b) hereto (the “Escrow Agreement”).
