Tax and Insurance Escrow Fund (a) If (and for so long as) a Trigger Event shall have occurred and shall not have been cured by a Trigger Event Cure, on each Payment Date during such period, Borrower shall pay to Lender (or Servicer, as directed by Lender) an amount equal to (i) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates, and (ii) one-twelfth of the Insurance Premiums that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said amounts in (i) and (ii) above hereinafter called the “Tax and Insurance Escrow Fund”). Lender shall apply the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.1.2 hereof and under the Mortgage Loan Agreement. In making any payment relating to the Tax and Insurance Escrow Fund, Lender may do so according to any xxxx, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such xxxx, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.1.2 hereof, provided no Event of Default shall have occurred and be continuing, then Lender shall return any excess to Borrower (or to Operating Company, if so directed by Borrower). In allocating such excess, Lender may deal with the Person shown on the records of Lender to be the owner of the Properties. If at any time Lender reasonably determines that the Tax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (i) and (ii) above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender estimates is sufficient to make up the deficiency at least thirty (30) days prior to the due date of the Taxes and/or thirty (30) days prior to expiration of the Policies, as the case may be.
(b) Notwithstanding the foregoing, Borrower shall not be required to make any deposits into the Tax and Insurance Escrow Fund on account of Insurance Premiums if (and for so long as) Borrower shall maintain a blanket insurance policy in respect of the Properties that is in accordance with the provisions of Section 6.1(a) and otherwise satisfactory to Lender in all material respects.
(c) Any amount remaining in the Tax and Insurance Escrow Fund following the occurrence of a Trigger Event Cure shall be returned to Borrower (or Operating Company, as directed by Borrower).
Escrow Fund Prior to any amount being distributed to any Company Holder pursuant to Section 2.6, the Escrow Fund will be withheld from the Merger Consideration and deposited with the Escrow Agent. The Indemnity Portion of the Escrow Fund will be held for the purpose of securing the indemnification obligations of the Company set forth in this Agreement. The Adjustment Portion of the Escrow Fund will be held for the purpose of securing any obligation of the Company to make a payment to Purchaser pursuant to Section 2.13(d). The Escrow Fund will be withheld from the aggregate amount of Merger Consideration otherwise payable to each Company Holder pursuant to Section 2.6, with each Company Holder’s portion of the Escrow Fund equal to its Company Holder Percentage Interest. The Shareholders’ Agent Expense Portion of the Escrow Fund will be held for the purpose of funding any expenses of the Shareholders’ Agent arising in connection with the administration of the Shareholders’ Agent’s duties in this Agreement after the Effective Time. The Escrow Agreement will provide for (i) the release of the Adjustment Portion of the Escrow Fund remaining in the escrow account (in accordance with Company Holder Percentage Interests for any amounts payable to the Company Holders) within five (5) Business Days after the final determination of the Merger Consideration pursuant to Section 2.13(c) (but, for the avoidance of doubt, after any required payment to Purchaser pursuant to Section 2.13(d) has been made), (ii) the release, subject to a reserve in the aggregate amount of all pending claims, of the Indemnity Portion of the Escrow Fund remaining in the escrow account (in accordance with Company Holder Percentage Interests for any amounts payable to the Company Holders) within five (5) Business Days after the earlier of (A) the date Purchaser completes an audit of the Company for 2014 (such date to be confirmed in writing by Purchaser to the Shareholders’ Agent), or (B) April 1, 2015; and (iii) the release of the Shareholders’ Agent Expense Portion of the Escrow Fund upon receipt of written notice from the Shareholders’ Agent. Following payment of the last balance remaining in the Indemnity Portion of the Escrow Fund that was reserved for a claim made by any Indemnified Persons under Section 9 of this Agreement (or the definitive withdrawal or resolution of such claim), and after payment of any Shareholders’ Agent expenses from the Shareholders’ Agent Expense Portion of the Escrow Fund, Purchaser and the Shareholders’ Agent will direct the Escrow Agent to pay to the Company Holders (or with respect to the Company Holders that were holders of Vested Company Options that were cancelled under Section 2.6(c)(i), to the Surviving Corporation for payment to the Company Holders who are entitled to such Company Holders through the Surviving Corporation’s payroll) in accordance with their Company Holder Percentage Interests an aggregate amount that is equal to any remaining balance of the Escrow Fund.
Indemnity Escrow (i) At or prior to the Closing, Pubco, the Seller Representative and American Stock Transfer & Trust Company (or such other escrow agent mutually acceptable to Purchaser and the Company), as escrow agent (the “Escrow Agent”), shall enter into an Escrow Agreement, effective as of the Effective Time, in form and substance reasonably satisfactory to Purchaser and the Company (the “Escrow Agreement”), pursuant to which Pubco shall cause to be delivered to the Escrow Agent a number of Class B Exchange Shares (each valued at the Redemption Price) equal to (x) fifteen percent (15%) of the estimated Exchange Consideration, divided by (y) the Redemption Price otherwise issuable to the Sellers at the Closing based on the Estimated Closing Statement (such Class B Exchange Shares, together with any equity securities paid as dividends or distributions with respect to such shares or into which such shares are exchanged or converted, in each case, as long as they remain in the Indemnity Escrow Account, the “Indemnity Escrow Shares”) to be held, along with any other dividends, distributions or other income on the Indemnity Escrow Shares, in each case, as long as they remain in the Indemnity Escrow Account (together with the Indemnity Escrow Shares, the “Indemnity Escrow Property”), in a segregated escrow account (the “Indemnity Escrow Account”) and disbursed in accordance with the terms of this Agreement and the Escrow Agreement. The portion of the Class B Exchange Shares that shall be withheld at the Closing for deposit in the Indemnity Escrow Account, and any disbursement from the Indemnity Escrow Account to Pubco, shall be allocated between the Class B Sellers based on each such Seller’s relative Pro Rata Share (as between themselves). The Indemnity Escrow Shares shall serve as the sole and exclusive source of payment of the obligations of the Sellers under Section 2.5(d) and the obligations of the Indemnitors pursuant to Article IX (other than with respect to (A) Fraud Claims or (B) any indemnification claims for breach of any Company and Seller Fundamental Representations, for which the Main Seller shall be solely responsible). Unless otherwise required by Law, all distributions made from the Indemnity Escrow Account shall be treated by the Parties as an adjustment to the Exchange Consideration received by the Sellers pursuant to Article II hereof. Each Class B Seller shall be deemed to be the owner of such Seller’s relative Pro Rata Share (as between themselves) of the Indemnity Escrow Shares during the time such Indemnity Escrow Shares are held in the Indemnity Escrow Account, subject to the retention of any dividends, distributions and other earnings thereon in the Indemnity Escrow Account until disbursed therefrom in accordance with the terms and conditions of this Agreement and the Escrow Agreement. Each Class B Seller shall have the right to vote such Seller’s relative Pro Rata Share (as between themselves) of the Indemnity Escrow Shares (together with any equity securities paid as dividends or distributions with respect to such shares or into which such shares are exchanged or converted) during the time held in the Indemnity Escrow Account as Indemnity Escrow Shares.
(ii) (A) Within three (3) Business Days after the twelve (12) month anniversary of the Closing Date (such anniversary, the “First Escrow Release Date”), the Purchaser Representative and Seller Representatives shall give joint written instruction to the Escrow Agent directing the release of the First Released Escrow Property (if any) to the Class B Sellers; (B) within three (3) Business Days after the twenty-four (24) month anniversary (such anniversary, the “Expiration Date”), the Purchaser Representative and Seller Representatives shall give joint written instruction to the Escrow Agent directing the release of all remaining Indemnity Escrow Property (if any) to the Class B Sellers; and (C) the Indemnity Escrow Property shall not be subject to any indemnification claim to the extent such claim is made after the Expiration Date; provided, however, with respect to any indemnification claim made in accordance with Article IX hereof on or prior to the Expiration Date that remains unresolved at the time and are still contested by an Indemnitee in good faith as of the Expiration Date (any such claim, a “Pending Claim”), an amount of the Indemnity Escrow Property with a value (with respect to the Indemnity Escrow Shares, calculated based on the Pubco Share Price as of the Expiration Date) equal to the aggregate amount of the Pending Claims set forth in the Claim Notice provided by the Purchaser Representative in accordance with Section 9.4 (as adjusted in accordance with Section 9.4(b)) shall remain in the Indemnity Escrow Account until such time as such Pending Claim shall have been finally resolved and paid pursuant to the provisions of Article IX. After the Expiration Date, to the extent that the value of the remaining Indemnity Escrow Property (with respect to the Indemnity Escrow Shares, calculated based on the Pubco Share Price) exceeds the aggregate amount of (a) resolved but unpaid claims in favor of an Indemnitee and (b) the Pending Claims set forth in the Claim Notice (as adjusted in accordance with Section 9.4(b)) submitted prior to the Expiration Date, an amount of Indemnity Escrow Property having a value (with respect to the Indemnity Escrow Shares, calculated based on the Pubco Share Price) equal to such excess shall be promptly (and no later than three (3) Business Days) disbursed by the Escrow Agent to the Class B Sellers (and Purchaser Representative and Seller Representatives shall promptly give joint written instructions to the Escrow Agent directing such release), with respect to each release of the Indemnity Escrow Property to the Class B Sellers, each such Seller shall receive such Seller’s relative Pro Rata Share (as between themselves) of such Indemnity Escrow Property. Promptly after the final resolution of all Pending Claims and payment of all indemnification obligations in connection therewith, the Escrow Agent shall transfer any Indemnity Escrow Property remaining in the Indemnity Escrow Account to the Class B Sellers with each such Seller receiving such Seller’s relative Pro Rata Share (as between themselves) of such Indemnity Escrow Property.
Tax Refunds (a) Seller shall be entitled to the amount of any Income Tax refunds (or any Tax credits received in lieu thereof to the extent such credit in lieu thereof actually reduces Taxes for a Post-Closing Tax Period) that are actually received by Buyer, any Group Company, any of their respective Affiliates, or a consolidated, combined, unitary, or similar group of which any Group Company is a member after the Closing, in each case, for any Pre-Closing Tax Period ending on the Closing Date or the portion of any Straddle Period ending on the Closing Date (determined in accordance with Section 8.6.4), including any such Tax refunds resulting from any Transaction Tax Deductions, and net of any Taxes and reasonable out-of-pocket expenses incurred in connection with obtaining such Tax refunds (or credits in lieu thereof), in each case, to the extent such Tax refund (or credit in lieu thereof) is with respect to Taxes paid by a Group Company prior to the Closing Date or included in the final calculation of the Closing Statement (any such Income Tax refund or credit in lieu thereof, a “Tax Refund”); provided, however, that Seller shall not be entitled to any Tax Refund (x) required to be paid over by any Group Company (or any Affiliate thereof) to any Person under a provision of a Contract (other than this Agreement) to which such Person was a party prior to the Closing, (y) resulting from the payment of Income Taxes by Buyer or any of its Affiliates (including any Group Company) made after the Closing Date to the extent such Income Taxes were not included in the final calculation of the Closing Statement, and (z) resulting from a carryback of a Tax attribute from any period ending after the Closing Date.
(b) Buyer shall promptly pay, or cause to be paid, over to Seller by wire transfer of immediately available funds any Tax Refunds that Seller is entitled to pursuant to this Section 8.6.1 within ten (10) Business Days of the actual receipt of the Tax Refund giving rise to Buyer’s obligation to make a payment pursuant to Section 8.6.1 with respect thereto (or, in the case of a credit in lieu of a refund, the Due Date for the filing of a Tax Return that reflects the actual reduction in Taxes resulting from such credit).
(c) The Group Companies shall use commercially reasonable efforts to promptly obtain (or cause to be obtained) any reasonably available Tax Refunds with respect to any applicable Pre-Closing Period Income Tax Return by filing, or causing to file, any such Tax Returns as promptly as practicable after the Closing Date, in each case, as finally resolved pursuant to the provisions of Section 8.6.2; provided, however, that the Group Companies shall not be required to file IRS Form 4466 (or any comparable form for state or local Tax purposes). The Group Companies shall not elect to apply any applicable Tax Refund as a credit against Taxes payable for a taxable period (or portion thereof) beginning after the Closing Date.
(d) For applicable Tax purposes, Buyer, Seller and each of their respective Affiliates shall treat all payments to Seller made pursuant to this Section 8.6.1 as an adjustment to purchase price to the maximum extent permitted by applicable Law.
Unused Escrow Funds In the event that a Closing does not occur when required under the Contract, or in the event that the Closing does occur but Escrow Funds remain in an account with Escrow Agent, the Escrow Agent shall notify OPWC in writing promptly thereafter. After receipt of such notice, OPWC shall deliver written instructions to Escrow Agent directing Escrow Agent’s release of the Escrow Funds. Immediately upon Escrow Agent’s receipt of such notice from OPWC, Escrow Agent shall release the Escrow Funds, or balance thereof, in accordance with OPWC’s written instructions.
Additional Escrow Amounts On the date of any Purchase Withdrawal, the Pass Through Trustee may re-deposit with the Depositary some or all of the amounts so withdrawn in accordance with Section 2.4 of the Deposit Agreement.
Escrow Amount (a) The Escrow Agent shall hold the Escrow Stock, Escrow Cash and USVI Tax Escrow in accordance with the terms and conditions of an escrow agreement, by and among the Parent, the Seller, and the Escrow Agent, in substantially the form attached hereto as Exhibit 2.6 (the “Escrow Agreement”). The Escrow Stock and Escrow Cash shall remain in escrow following the Closing to cover any indemnification claims in accordance with the terms of the Escrow Agreement and Section 11.7 hereof. The USVI Tax Escrow shall remain in escrow following the Closing to cover any indemnification claim related to USVI Exposure.
(b) The Escrow Agreement shall provide that the Escrow Stock shall be released as follows (each date of escrow release, an “Escrow Release Date”) and the value of each share of Parent Common Stock for purposes of this Section 2.6(b) equal to the Issuance Price:
(i) twenty-five percent (25%) of the Escrow Stock then remaining in escrow less a number of shares of Parent Common Stock with a value equal to the amount of any outstanding claims will be released to Seller on the nine (9) month anniversary of the Closing Date (the “First Escrow Release Date”);
(ii) thirty-three and one-third percent (33.33%) of the Escrow Stock then remaining in escrow less a number of shares of Parent Common Stock with a value equal to the amount of any outstanding claims will be released to Seller on the twelve (12) month anniversary of the Closing Date;
(iii) fifty percent (50%) of the Escrow Stock then remaining in escrow less a number of shares of Parent Common Stock with a value equal to the amount of any outstanding claims will be released to Seller on the fifteen (15) month anniversary of the Closing Date; and
(iv) any Escrow Stock then remaining in escrow less a number of shares of Parent Common Stock with a value equal to the amount of any outstanding claims will be released to Seller on the eighteen (18) month anniversary of the Closing Date (the “Final Escrow Release Date”.
Escrow Funds To provide for the timely payment of any post-closing claims by Buyer against Seller hereunder, at Closing, Seller shall deposit an amount equal to One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (the “Escrow Funds”) which shall be withheld from the Purchase Price payable to Seller and shall be deposited for a period of one (1) year in an escrow account with the Title Company pursuant to an escrow agreement reasonably satisfactory in form and substance to Buyer and Seller (the “Post-Closing Agreement”), which escrow and Post-Closing Agreement shall be established and entered into at Closing and shall be a condition to Buyer’s obligations under this Contract. All earnings accrue to Seller and Seller may direct investment thereof. If no claims have been asserted by Buyer against Seller, or all such claims have been satisfied, within such 1-year period, the Escrow Funds deposited by Seller shall be released to Seller.
Initial Escrow Amount; Issuance of Escrow Receipts The Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby acknowledge that on the date hereof they shall, irrevocably deliver to the Depositary on behalf of the Escrow Agent, an amount in U.S. dollars ("Dollars") and immediately available funds equal to $56,000,000 for deposit on behalf of the Escrow Agent with the Depositary in accordance with Section 2.1 of the Deposit Agreement. The Underwriters hereby instruct the Escrow Agent, upon receipt of such sum from the Underwriters, to confirm such receipt by executing (by manual or facsimile signature) and delivering to the Pass Through Trustee an Escrow Receipt in the form of Exhibit A hereto (an "Escrow Receipt"), (a) to be affixed by the Pass Through Trustee to each Certificate and (b) to evidence the same percentage interest ("Escrow Interest") in the Account Amounts (as defined below) as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which it is to be affixed. The Escrow Agent shall provide to the Pass Through Trustee for attachment to each Certificate newly issued under and in accordance with the Pass Through Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may from time to time request of the Escrow Agent. Each Escrow Receipt shall be registered by the Escrow Agent in a register (the "Register") maintained by the Escrow Agent in the same name and same manner as the Certificate to which it is attached and may not thereafter be detached from such Certificate to which it is to be affixed prior to the distribution of the Final Withdrawal (the "Final Distribution"). After the Final Distribution, no additional Escrow Receipts shall be issued and the Pass Through Trustee shall request the return to the Escrow Agent for cancellation of all outstanding Escrow Receipts.
Collection of Taxes, Assessments and Similar Items; Escrow Accounts (a) To the extent required by the related Mortgage Note and not violative of current law, the Master Servicer shall establish and maintain one or more accounts (each, an "Escrow Account") and deposit and retain therein all collections from the Mortgagors (or advances by the Master Servicer) for the payment of taxes, assessments, hazard insurance premiums or comparable items for the account of the Mortgagors. Nothing herein shall require the Master Servicer to compel a Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be made only to effect timely payment of taxes, assessments, hazard insurance premiums, condominium or PUD association dues, or comparable items, to reimburse the Master Servicer out of related collections for any payments made pursuant to Sections 3.01 hereof (with respect to taxes and assessments and insurance premiums) and 3.09 hereof (with respect to hazard insurance), to refund to any Mortgagors any sums determined to be overages, to pay interest, if required by law or the terms of the related Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account or to clear and terminate the Escrow Account at the termination of this Agreement in accordance with Section 9.01 hereof. The Escrow Accounts shall not be a part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in Section 3.06(a) that are not timely paid by the Mortgagors on the date when the tax, premium or other cost for which such payment is intended is due, but the Master Servicer shall be required so to advance only to the extent that such advances, in the good faith judgment of the Master Servicer, will be recoverable by the Master Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise.
