Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement. (b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any indemnification of the Parent Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Parent Indemnitees, as the case may be, within five (5) Business Days after the final determination thereof and (iii) any indemnification of the Member Indemnitees pursuant to Section 10.2(c) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Member Indemnitees, as the case may be, within five (5) Business Days after the final determination thereof. (c) Any Escrow Units and Escrow Cash remaining in the Escrow Account as of the Survival Period Termination Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are not fully resolved as of the Survival Period Termination Date) shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, the aggregate amount of claims then outstanding by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a), such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall be promptly released to the Representative for further distribution to the Contributors. (d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor. (e) The Representative and Parent OP shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash from the Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D. (f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributions.
Appears in 5 contracts
Samples: Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any indemnification of the Parent Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units)) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) or Section 10.2(c) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Parent Indemnitees, as the case may be, within five (5) Business Days after the final determination thereof and (iii) any indemnification of the Member Indemnitees pursuant to Section 10.2(c10.2(d) or the Barceloneta Member Indemnities pursuant to Section 10.2(e) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Member IndemniteesIndemnitees or Barceloneta Member Indemnities, as the case may be, within five (5) Business Days after the final determination thereof.
(c) Any Escrow Units and Escrow Cash remaining in the Escrow Account as of the Survival Period Termination Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are not fully resolved as of the Survival Period Termination Date) shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, the aggregate amount of claims then outstanding by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a), such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall be promptly released to the Representative for further distribution to the Contributors.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(e) The Representative and Parent OP shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash from the Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent is required to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to this Agreement or the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii)Agreement, such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.D and such Escrow Units shall be allocated by the Escrow Agent among the Escrow Units of the Contributors in proportion to their respective Escrow Unit Payment Percentage Interest as set forth on Annex G.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner owners of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, Cash and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributions.”
Appears in 3 contracts
Samples: Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any Any indemnification of the Parent Purchaser Indemnitees or Company Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) this Article VII shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Parent Purchaser Indemnitees or Company Indemnitees, as the case they may be, within five (5) Business Days after the final determination thereof and (iii) any indemnification of the Member Indemnitees pursuant to Section 10.2(c) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Member Indemnitees, as the case may be, within five (5) Business Days 15 days after the final determination thereof.
(c) Any Escrow Units and Escrow Cash ; provided that any indemnification owed by the Selling Parties to the Purchaser Indemnitees pursuant to Section 7.02 shall be satisfied exclusively from the funds then remaining in the Indemnity Escrow Account, to the extent of the Indemnity Escrow Account, next from the funds then remaining in the Working Capital Escrow Account, to the extent of the Working Capital Escrow Account, and then by means of an offset against any unpaid Year 1 Contingent Consideration, Year 2 Contingent Consideration, or both, that may otherwise be or become due. The funds in the Indemnity Escrow Account as and the Working Capital Escrow Account, at any given time, and the Year 1 Contingent Consideration and the Year 2 Contingent Consideration, if any, shall be the sole source of recovery with respect to Losses indemnifiable pursuant to Section 7.02 and in no event shall the Purchaser Indemnitees be entitled to recover any amount directly from a Selling Party or more than the amount of the Survival Period Termination Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash funds available in the proportion requested by Indemnity Escrow Account plus the Representativeaggregate amount, if any, of claims asserted in accordance with this Article 10 by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are not fully resolved as of the Survival Period Termination Date) shall be released to the Representative on the Survival Period Termination Date Year 1 Contingent Consideration and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account Year 2 Contingent Consideration.
(valued at the Parent Closing Priceb) exceeds, at any time following On the Survival Period Termination Date, the aggregate amount of claims then outstanding by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a), such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall be promptly released to Purchaser and the Representative for further distribution to the Contributors.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(e) The Representative and Parent OP shall deliver joint written instructions to the Escrow Agent instructing jointly instruct the Escrow Agent to make release to the Representative, for distribution to each Stockholder in a manner consistent with Section 2.03, all deliveries of Escrow Units and Escrow Cash from funds in the Indemnity Escrow Account expressly provided for herein in excess of the sum of (i) [*****] if the Final Resolution of the Albion Litigation has occurred prior to that date) plus (ii) the aggregate amount claimed by the Purchaser Indemnitees pursuant to claims made against such funds and not fully resolved prior to such date), but not more than the entire remaining balance of the funds in the Indemnity Escrow Account.
(c) On the date of the Final Resolution of the Albion Litigation (whether that date occurs before, on or after the Survival Period Termination Date), Purchaser and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed jointly instruct the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant release to the first sentence Representative, for distribution to each Stockholder in a manner consistent with Section 2.03, an amount of Section 10.7(b) or any funds in the Indemnity Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion Account equal to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash[*****], less (ii) the initial aggregate amount distributed claimed by the Purchaser Indemnitees pursuant to claims made against such funds with respect to the Contributors in consideration Albion Litigation, but not more than the entire remaining balance of the Contributions shall include funds in the Indemnity Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the ContributionsAccount.
Appears in 2 contracts
Samples: Stock and LLC Purchase Agreement, Stock and LLC Interest Purchase Agreement (Innophos Holdings, Inc.)
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any Any indemnification of the Parent Purchaser Indemnitees or the Seller Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) this Article 10 shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Parent Purchaser Indemnitees or Seller Indemnitees, as the case may be, within five fifteen (515) Business Days days after the final determination thereof and thereof; provided, however, that (iiii) any indemnification of owed by Sellers to the Member Purchaser Indemnitees pursuant to Section 10.2(c10.2(a)(i) (other than with respect to Losses related to breaches of Fundamental Representations and the Limitations Representations and with respect to Losses related to breaches of the IP Representations prior to or on the Release Date), shall be effected by wire transfer of immediately available funds satisfied solely from the applicable Persons to an account designated in writing remaining portion of the Escrow Amount, and (ii) any indemnification owed by the applicable Member Indemnitees, as Sellers to the case may be, within five (5Purchaser Indemnitees pursuant to Section 10.2(a)(i) Business Days after with respect to Losses related to breaches of Fundamental Representations and the final determination thereofLimitations Representations and with respect to Losses related to breaches of the IP Representations prior to or on the Release Date shall be satisfied first from the remaining portion of the Escrow Amount and thereafter by the Sellers directly.
(cb) Any Escrow Units and Escrow Cash Subject to Section 11.1(e), any funds remaining in the Escrow Account as of the Survival Period Termination Release Date (minus other than the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested claimed by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Purchaser Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are claims made and not fully resolved as of prior to such date) (the Survival Period Termination Date“Release Amount”) shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, the aggregate amount of claims then outstanding by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a), such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall be promptly released to the Representative for further distribution to the ContributorsSellers.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(ec) The Representative and Parent OP Purchaser shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash any distributions from the Escrow Account expressly provided for herein and the Escrow Agreementherein. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash Except as otherwise required pursuant to a Parent Indemnitee pursuant to determination within the first sentence meaning of Section 10.7(b1313(a) of the Code (or any Escrow Cash pursuant Section 2.3(e)(iisimilar or corresponding provision of state or local Applicable Law), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors Purchaser shall be treated as the owner owners of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions Account for all Tax purposes. In no event shall include any Party notify the Escrow Units and Escrow Cash, and (iii) Agent that the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to Closing has occurred until the amount distributed to the Contributors in consideration of the ContributionsClosing has occurred.
Appears in 1 contract
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any Any indemnification of the Parent Indemnitees Buyer Indemnified Parties or the Seller Indemnified Parties pursuant to this Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) 6.2 shall be effected by wire transfer of immediately available funds from Seller or Buyer, as the applicable Persons case may be, to an account designated in writing by the applicable Parent IndemniteesBuyer Indemnified Party or Seller Indemnified Party, as the case may be, within five fifteen (515) Business Days days after the final a determination thereof and that is binding on the Indemnitor; provided, however, that (iiii) any indemnification of owed by Seller to the Member Indemnitees pursuant to Section 10.2(c) Buyer Indemnified Parties first shall be effected paid from the Escrow Funds in the Escrow Account (in which case Seller and Buyer shall deliver any instruction or other documentation required by wire transfer of the Escrow Agent to permit such payment to Buyer (or its designees)), and then, if the Escrow Funds are insufficient to satisfy such indemnification obligation in full, Seller shall pay Buyer, in immediately available funds from funds, the applicable Persons unsatisfied portion of any such payment obligation, and (ii) any indemnification owed by Seller to an account designated in writing the Buyer Indemnified Parties or by Buyer to the applicable Member IndemniteesSeller Indemnified Parties, as the case may be, within five may, at the Indemnitee’s election, be satisfied by set-off against any amounts due or payable by such Indemnitee to the Indemnitor. On or around August 28, 2015 (5) Business Days after the final determination thereof.
(c) Any Escrow Units “Initial Release Date”), Buyer and Escrow Cash remaining in Seller shall jointly instruct the Escrow Account as of Agent to disburse to Seller the Survival Period Termination Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested by the Representativeamount, if any, by which the Escrow Funds, less a reasonable reserve amount (to be determined jointly by Buyer and Seller in good faith) in respect of any claims asserted submitted by any Buyer Indemnified Parties prior to the Initial Release Date in accordance with this Article 10 by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a) ARTICLE VI that remain pending as of such date (including claims that are not fully resolved the subject of a Dispute Notice or that are otherwise unsatisfied as of such date, such as (by way of example) claims for which a Direct Claim Notice has been delivered but for which the Survival Period Termination thirty (30) day objection period has not expired), exceed $350,000. On the Final Release Date) , Buyer and Seller shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing jointly instruct the Escrow Agent to deliver such Escrow Units from disburse to Seller the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value balance of the Escrow Units Funds, less a reasonable reserve amount (to be determined jointly by Buyer and Escrow Cash held Seller in the Escrow Account (valued at the Parent Closing Pricegood faith) exceeds, at any time following the Survival Period Termination Date, the aggregate amount of claims then outstanding by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a), such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall be promptly released to the Representative for further distribution to the Contributors.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification any claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed submitted by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(e) The Representative and Parent OP shall deliver joint written instructions any Buyer Indemnified Parties prior to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash from the Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims Final Release Date in accordance with Article 10 shall be treated this ARTICLE VI that remain pending as of such date (including claims that are the subject of a reduction to Dispute Notice or that are otherwise unsatisfied as of such date, such as (by way of example) claims for which a Direct Claim Notice has been delivered but for which the amount distributed to the Contributors in consideration of the Contributionsthirty (30) day objection period has not expired).
Appears in 1 contract
Manner of Payment; Escrow. (a) The To the extent any Buyer Indemnitee is entitled to recover pursuant to this Article 9 from the Indemnity Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement andFunds or from any Seller, if as applicable, the Escrow Agreement, (i) any indemnification of the Parent Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) a payment shall be effected by wire transfer of immediately available funds from the applicable Persons Indemnity Escrow Funds or such Seller, as applicable, to an account or accounts designated in writing by the applicable Parent Indemnitees, as the case may beBuyer, within five fifteen (515) Business Days days after the final determination thereof and thereof.
(iiib) With respect to any indemnification in favor of the Member Indemnitees any Seller Indemnitee pursuant to Section 10.2(c) this Article 9, a payment shall be effected by wire transfer of immediately available funds from the applicable Persons Buyer or its Affiliate, to an account or accounts designated in writing by the applicable Member Indemnitees, as the case may besuch Seller Indemnitee, within five fifteen (515) Business Days days after the final determination thereof.
(c) Any Escrow Units and Escrow Cash amount remaining in the Indemnity Escrow Account as of the General Survival Period Termination Expiration Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained reasonably claimed in Escrow Units and/or Escrow Cash in the proportion requested good faith by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Buyer Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are claims made and not fully resolved as of the Survival Period Termination Dateprior to such date) shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing by the Escrow Agent to deliver such Escrow Units from the Escrow Account and disbursed to the Representative for further distribution Sellers in accordance with their respective Percentage Allocations. Thereafter, to the Contributors. To extent the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash funds held in the Indemnity Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, exceed the aggregate amount of claims then outstanding reasonably claimed in good faith by the Parent Buyer Indemnitees against the Escrow Account pursuant to Section 10.2(a)claims made prior to the General Survival Expiration Date, such and not fully resolved prior to the time of determination, the excess Escrow Units and/or Escrow Cash (at the Representative’s election) funds shall be promptly released by the Escrow Agent and such funds shall be disbursed to the Representative for further distribution to the ContributorsSellers in accordance with their respective Percentage Allocations.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(e) The Seller Representative and Parent OP Buyer shall deliver joint written instructions to the Escrow Agent as promptly as reasonably practicable following the event necessitating a distribution instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash any distributions from the Indemnity Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributionsherein.
Appears in 1 contract
Samples: Unit Purchase Agreement (White Mountains Insurance Group LTD)
Manner of Payment; Escrow. (a) The In the event a Claim for indemnification under this ARTICLE X has been Finally Resolved, subject to the limitations set forth herein, the amount of Losses so Finally Resolved shall be paid, in each case no later than three (3) Business Days after such Claim has been Finally Resolved:
(i) Subject to Section 10.09(b), if the Indemnified Party is an Acquiror Indemnified Party, to the Indemnified Party from the Indemnity Escrow Account or by the Sellers, as applicable, in accordance with the Escrow Agreement and this ARTICLE X, promptly following written demand delivered to the Sellers’ Representative; and
(ii) if the Indemnified Party is a Seller Indemnified Party, to the Indemnified Party by the Acquiror on demand (which demand may be made by the Sellers’ Representative) in immediately available funds.
(b) Any amount of Losses Finally Resolved and payable by an Indemnifying Party pursuant to this ARTICLE X shall be paid promptly and payment shall not be delayed or reduced pending any determination or receipt of Third-Party Proceeds relating to such Losses, subject to the limitations set forth herein. In any case where an Indemnified Party recovers any Third-Party Proceeds relating to Losses previously paid to such Indemnified Party by an Indemnifying Party pursuant to this ARTICLE X, such Indemnified Party shall promptly pay over to the applicable Indemnifying Party (or, in the case where the Losses previously paid pursuant to Section 10.09(a)(i) were paid from the Indemnity Escrow Account, to the Escrow Agent shall accept for deposit into the deposit Indemnity Escrow Account or, after the Indemnity Escrow Termination Date, to the Sellers’ Representative on behalf of the Sellers) the lesser of (i) the amount of such Third-Party Proceeds and (ii) the amount of Losses previously paid by the Indemnifying Party to or on behalf of the Indemnified Party to which such Third-Party Proceeds relate.
(c) On the Indemnity Escrow Units Termination Date, the balance of the funds remaining in the Indemnity Escrow Account (less the aggregate portion of the remaining funds in the Indemnity Escrow Amount claimed by the Acquiror Indemnified Parties pursuant to Claims made against such funds in accordance with this Agreement and not Finally Resolved prior to such date) shall be released to the Sellers’ Representative (for the benefit of Sellers). At any time following the Indemnity Escrow Cash and shall administer Termination Date, to the extent the available balance in the Indemnity Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash Account exceeds the aggregate portion of the amount claimed by the Acquiror Indemnified Parties pursuant to Claims made in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, and the Escrow Agreement, (i) any indemnification of the Parent Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded and not Finally Resolved prior to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance time of fractional Escrow Units) that aredetermination, together, equal in value such excess shall be promptly released to the amount Sellers’ Representative (for the benefit of such Parent Indemnitees’ indemnification pursuant to Section 10.2(aSellers) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five three (53) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account or accounts designated in writing by the applicable Parent IndemniteesSellers’ Representative.
(d) Upon receipt of any funds pursuant to Section 10.09(c), as the case may beSellers’ Representative shall distribute or cause to be distributed the portion of such funds to which any Seller is entitled, within if any, to such Seller in accordance with such Seller’s Pro Rata Percentage, not later than five (5) Business Days after the final determination thereof and (iii) any indemnification of the Member Indemnitees pursuant to Section 10.2(c) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Member Indemnitees, as the case may be, within five (5) Business Days after the final determination thereofdate of receipt.
(c) Any Escrow Units and Escrow Cash remaining in the Escrow Account as of the Survival Period Termination Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are not fully resolved as of the Survival Period Termination Date) shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, the aggregate amount of claims then outstanding by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a), such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall be promptly released to the Representative for further distribution to the Contributors.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(e) The Representative and Parent OP shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash from the Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributions.
Appears in 1 contract
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any Any indemnification of the Parent Indemnitees Stockholder Indemnified Parties pursuant to this Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) 11.3 shall be effected by wire transfer of immediately available funds from the applicable Persons Parent to an account designated in writing by the applicable Parent Indemnitees, as the case may be, Stockholder Indemnified Party within five fifteen (515) Business Days days after the final determination thereof and (iii) any thereof. Any indemnification of the Member Indemnitees Parent Indemnified Parties pursuant to this Section 10.2(c) 11.3 shall be effected by wire transfer of immediately available funds from the applicable Persons Escrow Funds to an account designated in writing by the applicable Member Indemnitees, as the case may be, Parent Indemnified Party within five fifteen (515) Business Days days after the final determination thereof. All payments to a Parent Indemnified Party pursuant to this Section 11.3 shall be satisfied first from the Escrow Funds and the Parent and the Company Stockholder Representative shall execute the necessary documents instructing the Escrow Agent to make the applicable payments.
(cii) Any The Escrow Units and Escrow Cash remaining in the Escrow Account as of the Survival Period Termination Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which Amount shall be retained in Escrow Units and/or Escrow Cash in the proportion requested by the Representative, if any, of claims asserted held and administered in accordance with the terms of this Article 10 Agreement and the Escrow Agreement. The Escrow Amount shall be held in escrow for a thirty-six (36) month period; provided, that, on the second anniversary of the Closing Date, an amount equal to fifty percent (50%) of the Escrow Amount minus the amount of any pending and unresolved claims for indemnification by the Parent Indemnitees against Indemnified Parties (the “Escrow Account pursuant to Section 10.2(a) that are not fully resolved as of the Survival Period Termination DateRelease Amount”) shall be released to the Company Stockholder Representative for disbursement to the former holders of Company Common Stock and Company Participating Preferred Stock. Notwithstanding the foregoing, to the extent the Escrow Release Amount would reduce the amount on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing deposit with the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account below Four Million One Hundred Thousand Dollars (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, the aggregate amount of claims then outstanding by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a), such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall be promptly released to the Representative for further distribution to the Contributors.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(e) The Representative and Parent OP shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash from the Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii$4,100,000), such Escrow Units and Escrow Cash Release Amount shall be allocated by further reduced such that the amount remaining on deposit with the Escrow Agent among after the Escrow Units and Escrow Cash second anniversary of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
Closing Date shall not be less than Four Million One Hundred Thousand Dollars (f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributions$4,100,000).
Appears in 1 contract
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit Any indemnification of the Purchaser Indemnitees pursuant to this Article 10 shall be effected by (i) wire transfer of immediately available funds from the Cash Escrow Units Amount to an account designated in writing by the applicable Purchaser Indemnitees and (ii) delivery of Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and Shares (then remaining in the Escrow Agreement.
Account) equal in value (b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any indemnification of the Parent Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Current Parent Closing Price (with no issuance of fractional Escrow UnitsMarket Price) that are, together, equal in value to the amount of such Parent Indemnitees’ the indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined owed by the RepresentativeSellers, within five (5) Business Days 15 days after the final determination thereof, (ii) any pro rata in amount to the Escrow Shares and Cash Escrow Amount contributed to the Escrow Account. Any indemnification of the Parent Seller Indemnitees pursuant to Section 10.2(b) this Article 10 shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Parent Seller Indemnitees, as the case may be, within five (5) Business Days 15 days after the final determination thereof and (iii) thereof. Notwithstanding the foregoing, any indemnification owed by the Sellers to the Purchaser Indemnitees with respect to Losses for claims made with respect to breaches of the Member Indemnitees Fundamental Representations pursuant to Section 10.2(c10.2(a)(i) or for claims made pursuant to Section 10.2(a)(iv) or Section 10.2(a)(v) on or prior to the 180th Day (1) shall also be effected satisfied by wire transfer recourse to the Stock Consideration in addition to the Escrow Amount, (2) shall not be extinguished after the 180th Day to the extent a Notice of immediately available funds from Claim shall have been delivered by Parent on or prior to the applicable Persons 180th Day and (3) shall result in an extension of the Lock-Up Period (as defined in the Stockholders Agreement) with respect to an account designated a number of shares of Parent Common Stock (valued at the Current Parent Market Price) necessary to satisfy such claims equal to the amount of Losses described in writing by the applicable Member Indemnitees, Notice of Claim until such time as the case may be, within five (5) Business Days after the final determination thereofclaim in respect of such Losses shall have finally been resolved.
(cb) Any funds or Escrow Units and Escrow Cash Shares remaining in the Escrow Account as of the Survival Period Termination Release Date (minus other than the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested claimed by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Purchaser Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are claims made and not fully resolved as of the Survival Period Termination Dateprior to such date) shall be released to the Representative (on behalf of the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent Sellers, to deliver such Escrow Units from the Escrow Account be distributed to the Representative for further distribution Sellers in such amounts as are designated in the Merger Consideration Allocation Schedule). At any time following the Release Date, to the Contributors. To extent the extent that, as a result of resolution of pending claims, the value of the Escrow Units funds and Escrow Cash Shares held in the Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, exceed the aggregate amount of claims then outstanding (valuing such Escrow Shares at the Current Parent Market Price) claimed by the Parent Purchaser Indemnitees against the Escrow Account pursuant to Section 10.2(a)claims made prior to the Release Date, such and not fully resolved prior to the time of determination, the excess funds and Escrow Units and/or Escrow Cash (at the Representative’s election) Shares shall be promptly released to the Representative for further distribution (on behalf of the Sellers, to be distributed to the ContributorsSellers in such amounts as are designated in the Merger Consideration Allocation Schedule).
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(ec) The Representative and Parent OP the Surviving Corporation shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash any distributions from the Escrow Account expressly provided for herein and the Escrow Agreementherein. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee Except as otherwise required pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii)Applicable Law, such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for all Tax purposes: (i) the Contributors , Parent shall be treated as the owner of the Cash Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors Amount in consideration of the Contributions shall include the Escrow Units Account and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 Sellers shall be treated as a reduction the owners of the Escrow Shares, and shall have voting and dividends rights with respect to the amount distributed Escrow Shares; provided, that, Parent shall be entitled to 40% of the interest and other earnings with respect to the Contributors Cash Escrow Amount in consideration of the ContributionsEscrow Account.
Appears in 1 contract
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any Any indemnification of the Parent Buyer Indemnitees or the Seller Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) this Article 8 shall be effected by wire transfer of immediately available funds from the applicable Persons to an account or accounts designated in writing by Buyer or the applicable Parent IndemniteesRepresentative, as the case may be, within five (5) Business Days 15 days after the final determination thereof thereof; provided, however, that, prior to the earlier of the date that is twenty-four (24) months after the Closing Date (the “Final Escrow Termination Date”) and the date on which the Escrow Funds are reduced to zero (iii) 0), any indemnification of owed to the Member Buyer Indemnitees pursuant to Section 10.2(c) 8.2 shall be effected by wire transfer of immediately available funds satisfied solely from the applicable Persons to an account designated in writing by remaining portion of the applicable Member Indemnitees, as the case may be, within five (5) Business Days after the final determination thereofEscrow Amount.
(cb) Any Escrow Units and Escrow Cash amount remaining in the Escrow Account as of the Survival Period Initial Escrow Termination Date (minus the maximum sum of (i) the Escrow Retention Amount, plus (ii) the aggregate amount (valuing any Escrow Units at their Parent Closing Pricereasonably claimed in good faith by the Buyer Indemnitees pursuant to claims made and not fully resolved prior to such date) which shall be retained released by the Escrow Agent and disbursed as provided in Section 8.8(d). At any time following the Initial Escrow Units and/or Escrow Cash Termination Date, to the extent the funds held in the proportion requested Escrow Account exceed (A) the sum of the Escrow Retention Amount plus (B) the aggregate amount reasonably claimed in good faith by the RepresentativeBuyer Indemnitees pursuant to claims made prior to the Initial Escrow Termination Date (other than any such claims for indemnification pursuant to Section 8.2(f)), if anyand not fully resolved prior to the time of determination, of claims asserted in accordance with this Article 10 the excess funds shall be promptly released by the Parent Escrow Agent as provided in Section 8.8(d).
(c) Any amount remaining in the Escrow Account as of the Final Escrow Termination Date (minus the aggregate amount reasonably claimed in good faith by the Buyer Indemnitees against pursuant to claims made and not fully resolved prior to such date) shall be released by the Escrow Agent and disbursed as provided in Section 8.8(d). At any time following the Final Escrow Termination Date, to the extent the funds held in the Escrow Account exceed the aggregate amount reasonably claimed in good faith by the Buyer Indemnitees pursuant to claims made prior to the Final Escrow Termination Date, and not fully resolved prior to the time of determination, the excess funds shall be promptly released by the Escrow Agent as provided in Section 8.8(d).
(d) Any amount released from the Escrow Account pursuant to Section 10.2(a8.8(b) that are not fully resolved as of the Survival Period Termination Dateor Section 8.8(c) shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing disbursed by the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, the aggregate amount of claims then outstanding by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a), such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall be promptly released to the Representative for further distribution to the Contributors.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf account of each applicable Contributor, to New Company Holder pro rata in exchange for an equal number of New Company Common Units to be issued in the name of accordance with such ContributorHolder’s Percentage Allocation.
(e) The Representative and Parent OP Buyer shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash any distributions from the Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributionsherein.
Appears in 1 contract
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any Any indemnification of the Parent Buyer Indemnitees or the Seller Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) this ARTICLE 9 shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Parent Buyer Indemnitees or Seller Indemnitees, as the case may be, within five ten (510) Business Days after the final determination thereof and (iii) any indemnification of the Member Indemnitees pursuant to Section 10.2(c) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Member Indemnitees, as the case may be, within five (5) Business Days days after the final determination thereof; provided, however, that any indemnification owed by Seller to the Buyer Indemnities pursuant to Section 9.2(a) or Section 9.2(b) may only be satisfied from the funds then remaining in the Indemnity Escrow Account.
(cb) Any Escrow Units and Escrow Cash funds remaining in the Indemnity Escrow Account as of the Survival Period Termination Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested claimed by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Buyer Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are claims made against such funds, not fully resolved as of prior to such date and continued to be contested in good faith by a Buyer Indemnitee) shall be released to Seller by the Escrow Agent within two (2) Business Days following the Survival Period Termination Date) shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account (valued at the Parent Closing Price) exceeds, at At any time following the Survival Period Termination Date, to the extent the funds held in the Indemnity Escrow Account exceed the aggregate amount of claims then outstanding claimed by the Parent Buyer Indemnitees against the Escrow Account pursuant to Section 10.2(a)claims made prior to such Survival Period Termination Date, such not fully resolved prior to the time of determination and continued to be contested in good faith by a Buyer Indemnitee, the excess Escrow Units and/or Escrow Cash (at the Representative’s election) funds shall be promptly released to the Representative for further distribution to the ContributorsSeller.
(dc) During the period in which the Escrow Units Seller and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(e) The Representative and Parent OP Buyer shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash any distributions from the Indemnity Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributionsherein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fox Factory Holding Corp)
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) Except as provided in Section 9(g)(ii), any indemnification of the Parent Buyer Indemnitees or the Seller Indemnitees pursuant to this Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) 9 shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Parent Buyer Indemnitees or Seller Indemnitees, as the case may be, within five fifteen (515) Business Days days after the final determination thereof and (iii) thereof; provided, however, that any indemnification of owed by the Member Sellers to the Buyer Indemnitees pursuant to Section 10.2(c9(b)(i)(A) may only be satisfied from the Escrow Funds pursuant to the terms of the Escrow Agreement.
(ii) Any indemnification pursuant to Section 9(c) (“Tax Indemnification”), other than an indemnification related to a Direct Claim, shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Member Buyer Indemnitees or Seller Indemnitees, as the case may be, within (A) in the case of Tax Indemnification for a Tax liability of the Company or any of its Subsidiaries that is not yet due and payable, five (5) Business Days before the latest date on which such Tax liability becomes due and payable and (B) in the case of any other Tax Indemnification, fourteen (14) Business Days after the final determination thereofdate of delivery of the Notice of Claim; provided, however, that any indemnification owed by the Sellers to the Buyer Indemnitees pursuant to Section 9(b)(i)(A) may only be satisfied from the Escrow Funds pursuant to the terms of the Escrow Agreement. For purposes of this Section 9(g)(ii), references to a date on which a Tax liability becomes due and payable include a reference to the date on which it would have become due were it not for the availability of some Post-Closing Relief or right to repayment of Tax.
(ciii) Any Subject to Section 6(f), (A) any Escrow Units and Escrow Cash Funds remaining in the Escrow Account as of the Survival Period Termination date that is eighteen (18) months from the Closing Date (the “First Escrow Release Date”) (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested claimed by the Representative, if any, of Buyer Indemnitees pursuant to claims asserted made against such funds in accordance with this Article 10 by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are Agreement and not fully resolved prior to such date) that exceed $27,500,000 shall be released to the Sellers’ Representative and (B) any Escrow Funds remaining as of the Survival Period Termination date that is two (2) years from the Closing Date (the “Second Escrow Release Date”) (minus the aggregate amount claimed by the Buyer Indemnitees pursuant to claims made against such funds in accordance with this Agreement and not fully resolved prior to such date) shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the ContributorsSellers’ Representative. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account (valued at the Parent Closing Price) exceeds, at At any time following the Survival Period Termination Second Escrow Release Date, to the extent the Escrow Funds exceed the aggregate amount of claims then outstanding claimed by the Parent Buyer Indemnitees against the Escrow Account pursuant to Section 10.2(a)claims made prior to such Second Escrow Release Date and not fully resolved prior to the time of determination, such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall shall, subject to Section 6(f), be promptly released to the Representative for further distribution to the ContributorsSellers’ Representative.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(eiv) The Sellers’ Representative and Parent OP Buyer shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash any distributions from the Escrow Account expressly provided for herein and in accordance with the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributions.
Appears in 1 contract
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any Any indemnification of the Parent Buyer Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) this ARTICLE XI shall be effected by wire transfer of immediately available funds from the applicable Persons Indemnification Escrow Funds to an account designated in writing by the applicable Parent Indemnitees, as the case may be, Buyer Indemnitees within five fifteen (515) Business Days days after the final determination thereof and (iii) any thereof. Any indemnification of the Member Unitholder Indemnitees pursuant to Section 10.2(c) this ARTICLE XI shall be effected by wire transfer of immediately available funds from Buyer or the applicable Persons Surviving Corporation to an account designated in writing by the applicable Member Indemnitees, as the case may be, Unitholder Indemnitee within five fifteen (515) Business Days days after the final determination thereof.
(cb) Any Indemnification Escrow Units and Escrow Cash Funds remaining in the Escrow Account as of the Survival Period Termination Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested claimed by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Buyer Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are claims validly made against such funds, not fully resolved as of the Survival Period Termination Dateprior to such date and continuing to be contested in good faith by a Buyer Indemnitee) shall be released to the (or as directed by) Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative (for further distribution to the Contributorsapplicable Unitholders). To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account (valued at the Parent Closing Price) exceeds, at At any time following the Survival Period Termination Date, to the extent the Indemnification Escrow Funds held in the Escrow Account exceed the aggregate amount of claims then outstanding claimed by the Parent Buyer Indemnitees against the Escrow Account pursuant to Section 10.2(a)valid claims made prior to such Survival Period Termination Date, such not fully resolved prior to the time of determination and continuing to be contested in good faith by a Buyer Indemnitee, the excess Escrow Units and/or Escrow Cash (at the Representative’s election) funds shall be promptly released to the (or as directed by) Representative (for further distribution to the Contributorsapplicable Unitholders).
(dc) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(e) The Representative and Parent OP Buyer shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash any distributions from the Indemnification Escrow Account Fund expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of in this Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributions11.07.
Appears in 1 contract
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any Any indemnification of the Parent Indemnitees Purchaser Indemnified Parties or the Seller Indemnified Parties pursuant to this Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) 8.2 shall be effected by wire transfer of immediately available funds from the applicable Persons Sellers or the Purchaser, as the case may be, to an account designated in writing by the applicable Parent IndemniteesPurchaser Indemnified Party or Seller Indemnified Party, as the case may be, within five (5) Business Days 15 days after the final determination thereof and (iii) thereof; provided, however, that any indemnification owed by the Sellers to the Purchaser Indemnified Parties shall first be satisfied out of the Member Indemnitees pursuant Escrow Fund to Section 10.2(c) shall be effected by wire transfer of immediately available the extent any funds from the applicable Persons to an account designated remain in writing by the applicable Member Indemnitees, as the case may be, within five (5) Business Days after the final determination thereofescrow.
(cii) Any Escrow Units and Escrow Cash funds remaining in the Escrow Account Fund as of the Survival Period Termination 15 month anniversary of the Closing Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained claimed in Escrow Units and/or Escrow Cash in the proportion requested good faith by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Indemnitees against the Escrow Account Purchaser Indemnified Parties pursuant to Section 10.2(a) that are claims made and not fully resolved as prior to such date (minus any amount which the Seller Representative requires to pay unpaid Seller Expenses on behalf of the Survival Period Termination DateSellers, which amount shall be released directly to the Seller Representative for such purpose, and such release shall not be applied to the Seller Representative’s Pro Rata Share of any remaining amount released to the Sellers) shall be released to the Representative on Sellers in accordance with their respective Pro Rata Shares. At any time following the Survival Period Termination Date and 15 month anniversary of the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account Closing Date, to the Representative for further distribution to extent the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash funds held in the Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, Fund exceed the aggregate amount of claims then outstanding claimed in good faith by the Parent Indemnitees against the Escrow Account Purchaser Indemnified Parties pursuant to Section 10.2(a)claims made prior to such 15 month anniversary of the Closing Date and not fully resolved prior to the time of determination, such the excess Escrow Units and/or Escrow Cash (at the Representative’s election) funds shall be promptly released to the Sellers in accordance with their respective Pro Rata Shares (minus any amount which the Seller Representative requires to pay unpaid Seller Expenses on behalf of the Sellers, which amount shall be released directly to the Seller Representative for further distribution such purpose, and such release shall not be applied to the ContributorsSeller Representative’s Pro Rata Share of any remaining amount released to the Sellers).
(diii) During Notwithstanding anything herein to the period in which contrary, upon the Escrow Units and Escrow Cash are retained consummation of a Sale of the Company, any funds remaining in the Escrow AccountFund (minus any amount which the Seller Representative requires to pay unpaid Seller Expenses on behalf of the Sellers, which amount shall be released directly to the Seller Representative for such purpose, and such release shall not be applied to the Seller Representative’s Pro Rata Share of any remaining amount released to the Sellers) shall be released to the Sellers in accordance with their respective Pro Rata Shares.
(iv) Funds in the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors Fund shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver released to the Representative Purchaser to reimburse the Purchaser for further distribution any payment made after the Closing and prior to January 1, 2009, with respect to the Contributors, all cash dividends and cash distributions unrecorded liabilities set forth on Schedule 3.21 relating to obligations contingent on the continued employment of individuals identified in such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except schedule (to the extent it has been finally determined that any Parent Indemnitee such payment is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units required to be issued paid prior to January 1, 2009 in accordance with such obligations as in effect as of the name of such ContributorClosing Date).
(ev) The Purchaser and the Seller Representative shall promptly execute and Parent OP shall deliver joint written instructions to the Escrow Agent necessary documents instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash any payment required to be made from the Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest Fund as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributionsthis Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Dental Partners Inc)
Manner of Payment; Escrow. (a) The Escrow Agent shall accept the deposit of the Escrow Units and Escrow Cash and shall administer the Escrow Units and Escrow Cash and release Escrow Units and Escrow Cash in accordance with the terms and subject to the conditions set forth herein and in the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any Any indemnification of the Parent Purchaser Indemnitees or the Seller Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) this Article 10 shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Parent Purchaser Indemnitees or Seller Indemnitees, as the case may be, within five (5) Business Days 15 days after the final determination thereof and (iii) thereof; provided, however, that any indemnification of owed by Sellers to the Member Purchaser Indemnitees pursuant to Section 10.2(c10.2(a)(i) (other than with respect to Losses related to breaches of Fundamental Representations and Section 4.15), shall be satisfied solely from the remaining portion of the Escrow Amount. Except as set forth in the proviso above, any indemnification owed by the Sellers to the Purchaser Indemnitees pursuant to Section 10.2(a)(i) shall be effected by wire transfer of immediately available funds satisfied first from the applicable Persons to an account designated in writing remaining portion of the Escrow Amount and thereafter by the applicable Member IndemniteesSellers directly. Any indemnification owed by the Seller to the Purchaser Indemnitees pursuant to Section 10.2(a)(i) that is to be satisfied from the Escrow Amount shall be reduced by 5.05% (in order to reflect the release to the Company of amounts held back from bonuses or other amounts payable by the Group Companies pursuant to the triVIN Holdings, as Inc. 2010 Management Incentive Plan (the case may be“MIP”)); provided, within five (5) Business Days after for the final determination thereofavoidance of doubt, that upon the release of the funds in the Escrow Account pursuant to Section 10.8(b), the obligation to release any remaining bonuses or other amounts held back pursuant to the MIP shall be the obligation of the Surviving Corporation.
(cb) Any Escrow Units and Escrow Cash funds remaining in the Escrow Account as of the Survival Period Termination Release Date (minus other than the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested claimed by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Purchaser Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are claims made and not fully resolved as of the Survival Period Termination Dateprior to such date) shall be released to the Representative (on behalf of the Survival Period Termination Date and Sellers). At any time following the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account Release Date, to the Representative for further distribution to extent the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash funds held in the Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, exceed the aggregate amount of claims then outstanding claimed by the Parent Purchaser Indemnitees against the Escrow Account pursuant to Section 10.2(a)claims made prior to the Release Date, such and not fully resolved prior to the time of determination, the excess Escrow Units and/or Escrow Cash (at the Representative’s election) funds shall be promptly released to the Representative for further distribution to the ContributorsRepresentative.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(ec) The Representative and Parent OP the Surviving Corporation shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash any distributions from the Escrow Account expressly provided for herein and the Escrow Agreementherein. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash Except as otherwise required pursuant to a Parent Indemnitee pursuant to determination within the first sentence meaning of Section 10.7(b1313(a) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors Code, Sellers shall be treated as the owner owners of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the ContributionsAccount for all tax purposes.
Appears in 1 contract
Manner of Payment; Escrow. (aAny Damages incurred as a result of any matter for which indemnification is required under Clauses 4, 5 and 7, except for the Environmental Specific Indemnity Events and the Tax Specific Indemnity Events, shall be initially satisfied out of the portion of the General Escrow Amount then held in escrow pursuant to the terms set forth in Clause 2.4.(ii) The Escrow Agent shall accept and the deposit terms of the Escrow Units Agreement. Likewise, any Damages incurred as a result of any matter for which indemnification is required under Clause 5.1.6 (Environmental) shall be initially satisfied out of the portion of the Environmental Escrow Amount then held in escrow pursuant to the terms set forth in Clause 2.4.(ii) and Escrow Cash and shall administer the terms of the Escrow Units Agreement. Finally, any Damages incurred as a result of the Tax Specific Indemnity Events shall be initially satisfied out of the portion of the Tax Specific Indemnity Escrow Amount then held in escrow pursuant to the terms set forth in Clause 2.4.(ii). In the event that the funds in the Escrow Account are not sufficient to cover indemnification obligations due and Escrow Cash and release Escrow Units and Escrow Cash payable as applicable pursuant to this Agreement (and, in particular, in accordance with the terms quantitative and subject qualitative limitations set forth in Clause 5.2 above), the relevant Damages shall be paid in cash by the Vendors according to their Pro Rata Portion. As an exception to this, Damages arising from the Tax Specific Indemnity Events can be paid only from the Tax Specific Indemnity Escrow Amount. According to the conditions calendar set forth herein in the Escrow Agreement and in Clause 2.4.(ii), the Vendors shall be entitled to receive from the Escrow Account an amount equal to the funds remaining therein minus the aggregate amount, if any, which the Purchaser has claimed pursuant to Clauses 4, 5 and 7 (to the extent such claims, if any, remain unresolved), in accordance with the Escrow Agreement.
(b) Subject to the terms and conditions of this Agreement and, if applicable, the Escrow Agreement, (i) any indemnification of the Parent Indemnitees pursuant to Section 10.2(a) shall, except as otherwise provided herein, be effected by the Escrow Agent’s delivery to such Parent Indemnitees (subject to Section 10.7(e)) of an amount of Escrow Cash and/or Escrow Units Escrow Units (rounded to the nearest whole Escrow Unit and valued at the Parent Closing Price (with no issuance of fractional Escrow Units) that are, together, equal in value to the amount of such Parent Indemnitees’ indemnification pursuant to Section 10.2(a) with the composition of Escrow Cash and Escrow Units being determined by the Representative, within five (5) Business Days after the final determination thereof, (ii) any indemnification of the Parent Indemnitees pursuant to Section 10.2(b) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Parent Indemnitees, as the case may be, within five (5) Business Days after the final determination thereof and (iii) any indemnification of the Member Indemnitees pursuant to Section 10.2(c) shall be effected by wire transfer of immediately available funds from the applicable Persons to an account designated in writing by the applicable Member Indemnitees, as the case may be, within five (5) Business Days after the final determination thereof.
(c) Any Escrow Units and Escrow Cash remaining in the Escrow Account as of the Survival Period Termination Date (minus the maximum aggregate amount (valuing any Escrow Units at their Parent Closing Price) which shall be retained in Escrow Units and/or Escrow Cash in the proportion requested by the Representative, if any, of claims asserted in accordance with this Article 10 by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a) that are not fully resolved as of the Survival Period Termination Date) shall be released to the Representative on the Survival Period Termination Date and the Representative and Parent REIT or Parent OP shall deliver joint written instructions instructing the Escrow Agent to deliver such Escrow Units from the Escrow Account to the Representative for further distribution to the Contributors. To the extent that, as a result of resolution of pending claims, the value of the Escrow Units and Escrow Cash held in the Escrow Account (valued at the Parent Closing Price) exceeds, at any time following the Survival Period Termination Date, the aggregate amount of claims then outstanding by the Parent Indemnitees against the Escrow Account pursuant to Section 10.2(a), such excess Escrow Units and/or Escrow Cash (at the Representative’s election) shall be promptly released to the Representative for further distribution to the Contributors.
(d) During the period in which the Escrow Units and Escrow Cash are retained in the Escrow Account, the Escrow Units and Escrow Cash will be held for the benefit of the applicable Contributors (and the applicable Contributors shall be entitled to vote and to receive, and the Escrow Agent shall promptly deliver to the Representative for further distribution to the Contributors, all cash dividends and cash distributions on such Escrow Units and all interest on such Escrow Cash, which dividends and interest shall be income of the applicable Contributors for Tax purposes), except to the extent it has been finally determined that any Parent Indemnitee is entitled to recover such Escrow Units in respect of indemnification claims pursuant to this Article 10. Any distributions on such Escrow Units made in the form of Parent OP Common Units will be deemed to have been contributed by the Escrow Agent, on behalf of each applicable Contributor, to New Company in exchange for an equal number of New Company Common Units to be issued in the name of such Contributor.
(e) The Representative and Parent OP shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make all deliveries of Escrow Units and Escrow Cash from the Escrow Account expressly provided for herein and the Escrow Agreement. In the event the Representative and Parent OP shall have instructed the Escrow Agent to deliver any Escrow Units or Escrow Cash to a Parent Indemnitee pursuant to the first sentence of Section 10.7(b) or any Escrow Cash pursuant Section 2.3(e)(ii), such Escrow Units and Escrow Cash shall be allocated by the Escrow Agent among the Escrow Units and Escrow Cash of the Contributors in proportion to their respective Applicable Percentage Interest as set forth on Annex D.
(f) The parties hereto agree that for Tax purposes: (i) the Contributors shall be treated as the owner of the Escrow Units and Escrow Cash, (ii) the initial amount distributed to the Contributors in consideration of the Contributions shall include the Escrow Units and Escrow Cash, and (iii) the return to Parent Indemnitees of Escrow Units and/or Escrow Cash upon settlement of claims in accordance with Article 10 shall be treated as a reduction to the amount distributed to the Contributors in consideration of the Contributions.
Appears in 1 contract
Samples: Share Purchase Agreement (Albany Molecular Research Inc)
