Common use of Release of Escrow Funds Clause in Contracts

Release of Escrow Funds. (a) The Deposit Escrow Agent shall deliver the Purchaser Deposit (including, without limitation, any interest or other earnings thereon), solely as follows: (i) to the Seller upon the Closing (as defined in the Stock Purchase Agreement) if the Seller and the Purchaser have both executed a written request to Deposit Escrow Agent no later than the business day prior to the Closing requesting the release of the Purchaser Deposit to the Seller at the Closing, provided that Deposit Escrow Agent shall release the Purchaser Deposit pursuant to this clause (i) only if Deposit Escrow Agent has received written instructions from both the Seller and the Purchaser on the day of Closing that the Closing is occurring; (ii) to the Seller upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Seller requesting the release of the Purchaser Deposit accompanied by a statement either that the Seller has terminated the Stock Purchase Agreement either as a result of a material breach of the Stock Purchase Agreement by the Purchaser or as a result of a failure of any of the conditions set forth in Sections 7.1, 7.2, 7.3, 7.7 or 7.10 of the Stock Purchase Agreement, specifying in reasonable detail the basis for such request (which request shall be delivered to the Purchaser at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Purchaser); (iii) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release of the Purchaser Deposit accompanied by a statement that the Stock Purchase Agreement has been terminated for any reason except if the provisions described in clause (ii) apply, specifying in reasonable detail the basis for such request (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller); and (iv) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release of the Purchaser Deposit accompanied by a statement that the Seller's Bid Procedures Order (the "BID PROCEDURES ORDER"), which Bid Procedures Order shall include an approval and authorization by the United States Bankruptcy Court for the District of Delaware (the "BANKRUPTCY COURT") of the Seller's execution and delivery of this Deposit Escrow Agreement, has not been entered on the docket by the Bankruptcy Court within 45 days of the execution of the Stock Purchase Agreement (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller).

Release of Escrow Funds. (a) The Deposit Subject to the further terms and conditions of the Escrow Agreement and this Article XI, on the first Business Day after the expiration of the General Escrow Period, Purchaser and Sellers shall execute a joint instruction to the Escrow Agent directing the Escrow Agent to release to Sellers any remaining General Escrow Funds on such date, minus any Claimed Amount relating to any Claim Notice given by any Purchaser Indemnitee with respect to the General Escrow Funds for which a Response Notice from Sellers is not then due and has not been given and any Contested Amount relating to the General Escrow Funds then outstanding (the “Pending General Claim Reserve”). The Pending General Claim Reserve shall remain in escrow until the resolution, in accordance with the terms of this Agreement, of the applicable claim or claims to which such reserve relates. Upon resolution of such claim or claims, Purchaser and Sellers shall promptly execute a joint instruction to the Escrow Agent directing the Escrow Agent to deliver the Purchaser Deposit (including, without limitation, any interest or other earnings thereon), solely as follows: to (i) Purchaser, any amount which Purchaser is entitled to the Seller upon the Closing (as defined in the Stock Purchase Agreement) if the Seller and the Purchaser have both executed a written request to Deposit Escrow Agent no later than the business day prior to the Closing requesting the release of the Purchaser Deposit to the Seller at the Closing, provided that Deposit Escrow Agent shall release the Purchaser Deposit pursuant to this clause (i) only if Deposit Escrow Agent has received written instructions from both the Seller and the Purchaser on the day of Closing that the Closing is occurring; (ii) to the Seller upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Seller requesting the release of the Purchaser Deposit accompanied by a statement either that the Seller has terminated the Stock Purchase Agreement either receive as a result of a material breach the resolution of such claim or claims and (ii) Sellers, any remaining balance of the Stock Purchase Agreement General Escrow Amount. (b) In the event, prior to Closing, Sellers have not delivered to Purchaser a Regulatory Letter or the Landlord Acknowledgement pursuant to Section 3.2(c)(i) above, but following Closing, Sellers deliver to Purchaser (i) either a Regulatory Letter (provided no Regulatory Letter was delivered prior to Closing), which may be conditioned upon (1) no -54- changes in conditions, laws or property uses, (2) no new contamination caused by Purchaser, (3) a reservation of the Colorado Governmental Authority’s authority should new information come to light, and (4) no submission of materially misleading information to the Colorado Governmental Authority (the parties acknowledge and agree that the conditions in (1), (2), (3) and (4) shall not be a basis for Purchaser or its counsel to deem any Regulatory Letter not reasonably satisfactory) or the Landlord Acknowledgement (provided no Landlord Acknowledgement was delivered prior to Closing), in either case in a form reasonably satisfactory to Purchaser and its counsel, it being agreed by the parties that Purchaser shall provide written notice to Sellers indicating whether the Regulatory Letter or Landlord Acknowledgement or both, as applicable, is or are reasonably satisfactory to Purchaser and its counsel within twenty-one (21) days after Purchaser’s receipt of such Regulatory Letter or Landlord Acknowledgement or both, as applicable. In the event Purchaser has provided Sellers with written notice within such period indicating that such Regulatory Letter or Landlord Acknowledgement or both, as applicable, is or are reasonably satisfactory to Purchaser and its counsel, or has failed to notify Sellers of Purchaser’s determination within such period, Sellers shall be entitled to a distribution from the Special Escrow Funds of an amount equal to the lesser of [ …***…] Dollars ($[…***…]) and the remaining Special Escrow Funds, or (ii) both a Regulatory Letter and a Landlord Acknowledgement, in each case in a form reasonably satisfactory to Purchaser and its counsel, Sellers shall be entitled to a distribution from the Special Escrow Funds of an amount equal to the lesser of […***…] Dollars ($[…***…]) and the remaining Special Escrow Funds. In the event Sellers satisfy the foregoing condition in either subsections (i) or (ii) above and are entitled to a distribution from the Special Escrow Funds, on the first Business Day after Sellers satisfy the condition in either subsections (i) or (ii), Purchaser and Sellers shall execute a joint instruction to the Escrow Agent directing the Escrow Agent to release to Sellers the applicable amount pursuant to this Section 11.6(b). Prior to Sellers’ submission to the applicable Colorado Governmental Authority of any information regarding the environmental condition of the Leased Premises, including any application or request for a Regulatory Letter, Sellers shall provide to Purchaser, for Purchaser’s approval, which approval shall not be unreasonably withheld, delayed or conditioned, a copy of such information, application or request; provided, further, that upon Sellers’ receipt of such written approval, or, if Purchaser has not provided Sellers with either a written approval or objection to such information, application or request within fifteen (15) Business Days of Purchaser’s receipt of such information, application or request, Sellers may proceed with their submission to the applicable Colorado Governmental Authority, and if a written objection is delivered to Sellers within such period, Sellers and Purchaser agree to negotiate in good faith to resolve such objection as soon as practicable. Sellers shall further afford Purchaser a reasonable opportunity to participate in any telephone call or meeting with such Colorado Governmental Authority arising out of any such submission, application or request. (c) Subject to the further terms and conditions of the Escrow Agreement and this Article XI, on the first Business Day after the expiration of the Special Escrow Period, Purchaser and Sellers shall execute a joint instruction to the Escrow Agent directing the Escrow Agent to release to Sellers any remaining Special Escrow Funds on such date, minus any Claimed Amount relating to any Claim Notice given by any Purchaser Indemnitee with respect to the Special Escrow Funds for which a Response Notice from Sellers is not then due and has not been given and any Contested Amount relating to the Special Escrow Funds then ***Confidential Treatment Requested -55- outstanding (the “Pending Special Claim Reserve”). The Pending Special Claim Reserve shall remain in escrow until the resolution, in accordance with the terms of this Agreement, of the applicable claim or claims to which such reserve relates. Upon resolution of such claim or claims, Purchaser and Sellers shall promptly execute a joint instruction to the Escrow Agent directing the Escrow Agent to deliver to (i) Purchaser, any amount which Purchaser is entitled to receive as a result of a failure of any of the conditions set forth in Sections 7.1, 7.2, 7.3, 7.7 or 7.10 of the Stock Purchase Agreement, specifying in reasonable detail the basis for such request (which request shall be delivered to the Purchaser at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery resolution of such request to the Purchaser); (iii) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release of the Purchaser Deposit accompanied by a statement that the Stock Purchase Agreement has been terminated for any reason except if the provisions described in clause claim or claims and (ii) applySellers, specifying in reasonable detail the basis for such request (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller); and (iv) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release any remaining balance of the Purchaser Deposit accompanied by a statement that the Seller's Bid Procedures Order (the "BID PROCEDURES ORDER"), which Bid Procedures Order shall include an approval and authorization by the United States Bankruptcy Court for the District of Delaware (the "BANKRUPTCY COURT") of the Seller's execution and delivery of this Deposit Special Escrow Agreement, has not been entered on the docket by the Bankruptcy Court within 45 days of the execution of the Stock Purchase Agreement (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller)Amount. 11.7.

Release of Escrow Funds. If any Claims exist as of the Deposit Date and the Escrow Funds are therefore deposited with the Escrow Agent, the Escrow Funds shall be released by the Escrow Agent and Parent as soon as practicable, taking into account the notices to be delivered under this Section 3.1, provided that all Claims are fully and finally settled (athe "Release Date") less any Escrow Funds delivered to or deliverable to Parent in satisfaction of Uncontested Claims or Contested Claims which have been settled by the parties hereto. Within ten (10) of the Escrow Agent's business days ("Business Days") after the Release Date, Parent and the Indemnification Representative shall deliver to the Escrow Agent a written notice (the "Release Notice") setting forth the number of Escrow Funds to be released (the "Released Escrow"), including the amount of Escrow Funds to be released to each Holder. The Deposit Escrow Agent shall deliver be authorized to act in accordance with any Release Notice. The Released Escrow shall be released to the Purchaser Deposit (includingHolders in proportion to their respective interests in the Initial Escrow Funds as certified in writing to the Escrow Agent. If the Escrow Funds contain shares of Parent Common Stock, without limitationthen in lieu of releasing any fractional shares of Parent Common Stock from the Escrow Funds, any interest or other earnings thereon), solely as follows: (i) fraction of a released share of Parent Common Stock from the Escrow Funds that would otherwise be released shall be rounded to the Seller upon the Closing (as defined in the Stock Purchase Agreement) if the Seller and the Purchaser have both executed a written request to Deposit Escrow Agent no later than the business day prior to the Closing requesting the release of the Purchaser Deposit to the Seller at the Closing, provided that Deposit nearest whole share. The Escrow Agent shall effect any release of Escrow Funds in the Purchaser Deposit pursuant manner provided in Section 12.16 herein. The Escrow Agent shall not be required to this clause (i) only if Deposit take such action until the Escrow Agent has received written instructions from both the Seller Release Notice executed by Parent and the Purchaser on Indemnification Representative or, in the day of Closing that event Parent and the Closing is occurring; (ii) Indemnification Representative fail to execute and deliver a jointly approved Release Notice, a final award or decision which specifies the Seller upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Seller requesting the release distribution of the Purchaser Deposit accompanied by a statement either that the Seller has terminated the Stock Purchase Agreement either as a result of a material breach of the Stock Purchase Agreement by the Purchaser or as a result of a failure of any of the conditions set forth in Sections 7.1, 7.2, 7.3, 7.7 or 7.10 of the Stock Purchase Agreement, specifying in reasonable detail the basis for such request (which request shall be delivered to the Purchaser at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Purchaser); (iii) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release of the Purchaser Deposit accompanied by a statement that the Stock Purchase Agreement has been terminated for any reason except if the provisions described in clause (ii) apply, specifying in reasonable detail the basis for such request (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller); and (iv) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release of the Purchaser Deposit accompanied by a statement that the Seller's Bid Procedures Order (the "BID PROCEDURES ORDER"), which Bid Procedures Order shall include an approval and authorization by the United States Bankruptcy Court for the District of Delaware (the "BANKRUPTCY COURT") of the Seller's execution and delivery of this Deposit Escrow Agreement, has not been entered on the docket by the Bankruptcy Court within 45 days of the execution of the Stock Purchase Agreement (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller)Funds.

Release of Escrow Funds. (a) The Deposit Parent shall notify the Escrow Agent of any claim for indemnification made by any Parent Indemnified Party. Promptly following the final determination in accordance with this Article IX of any claim for indemnification made by any Parent Indemnified Party, upon request by Parent, Seller Representative shall execute and deliver a certificate requesting the Escrow Agent to deliver by wire transfer to an account designated by Parent immediately available funds in the amount of such claim as finally determined in accordance with this Article IX (not to exceed the amount of funds then remaining in the Retention Escrow Account). On the date that is the 15-month anniversary of the Closing Date (the “Release Date”), Parent and Seller Representative shall deliver joint written instructions to the Purchaser Deposit Escrow Agent to deliver to Seller Representative (including, without limitation, any interest or other earnings thereonon behalf of the Security Holders for distribution to each such Security Holder in accordance with its Pro Rata Share), solely as follows: (i) or upon request of Seller Representative, directly to the Seller upon Security Holders, the Closing (as defined amount of funds then remaining in the Stock Purchase Agreement) Retention Escrow Account by wire transfer to one or more accounts designated by Seller Representative; provided, however, that if the Seller and the Purchaser have both executed a written request to Deposit Escrow Agent no later than the business day prior to the Closing Release Date Parent notifies the Escrow Agent in writing that all or a portion of the funds remaining in the Retention Escrow Account is subject to claims for indemnification under this Agreement that have not been finally determined (the “Outstanding Claims”), the amount delivered to Seller Representative (or, the Security Holders, if applicable) upon the Release Date shall be equal to the amount of funds then remaining in the Retention Escrow Account, less the sum of any amounts subject to the Outstanding Claims. If at any time after the Release Date the amount of funds then remaining in the Retention Escrow Account exceeds the sum of any amounts subject to the Outstanding Claims, Seller Representative and Parent shall promptly execute and deliver a certificate requesting the release Escrow Agent to deliver such excess amount to Seller Representative (on behalf of the Purchaser Deposit Security Holders for distribution to the each such Security Holder in accordance with its Pro Rata Share) by wire transfer to one or more accounts designated by Seller at the Closing, provided that Deposit Escrow Agent shall release the Purchaser Deposit pursuant to this clause (i) only if Deposit Escrow Agent has received written instructions from both the Seller and the Purchaser on the day of Closing that the Closing is occurring; (ii) to the Seller upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Seller requesting the release of the Purchaser Deposit accompanied by a statement either that the Seller has terminated the Stock Purchase Agreement either as a result of a material breach of the Stock Purchase Agreement by the Purchaser or as a result of a failure of any of the conditions set forth in Sections 7.1, 7.2, 7.3, 7.7 or 7.10 of the Stock Purchase Agreement, specifying in reasonable detail the basis for such request (which request shall be delivered to the Purchaser at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Purchaser); (iii) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release of the Purchaser Deposit accompanied by a statement that the Stock Purchase Agreement has been terminated for any reason except if the provisions described in clause (ii) apply, specifying in reasonable detail the basis for such request (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller); and (iv) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release of the Purchaser Deposit accompanied by a statement that the Seller's Bid Procedures Order (the "BID PROCEDURES ORDER"), which Bid Procedures Order shall include an approval and authorization by the United States Bankruptcy Court for the District of Delaware (the "BANKRUPTCY COURT") of the Seller's execution and delivery of this Deposit Escrow Agreement, has not been entered on the docket by the Bankruptcy Court within 45 days of the execution of the Stock Purchase Agreement (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller)Representative.

Release of Escrow Funds. (a) The Deposit Escrow Funds shall be managed and released by the Escrow Agent in accordance with the terms of the Escrow Agreement and the terms of this Agreement. If pursuant to Section 10.15 it is determined, or Buyer and the Seller Parties otherwise agree, that an amount is due and payable pursuant to Section 9.2, Buyer and Seller shall promptly deliver a joint written instruction to the Purchaser Deposit Escrow Agent instructing the Escrow Agent to pay to Buyer, from the Escrow Account, such amount that is due and payable (includingor, without limitationin the event such amount is greater than the Escrow Funds, all of the Escrow Funds). (b) If on the eighteen (18) month anniversary of the Closing Date, the total amount of the Escrow Funds as of such date minus any amounts that are the subject of a then-pending claim for indemnification pursuant to Section 9.2 that has not then been fully and finally resolved and paid, is greater than 50% of the Escrow Amount, Buyer and Seller shall jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds to an account designated by Seller an amount equal to such excess over 50% of the Escrow Amount from the Escrow Funds (such that, after such distribution, only 50% of the Escrow Amount remains in the Escrow Funds). (c) On the third anniversary of the Closing Date, Buyer and Seller shall jointly instruct the Escrow Agent to disburse by wire transfer of immediately available funds to an account designated by Seller the remainder of the Escrow Funds then held by the Escrow Agent in the Escrow Account minus any amounts that are the subject of a then-pending claim for indemnification pursuant to Section 9.2 that has not then been fully and finally resolved and paid. Upon final resolution of all such unresolved pending claims and any payments required to be made in connection therewith, any interest or other earnings thereon), solely as follows: (i) remaining Escrow Funds shall be promptly disbursed to Seller in accordance with the Seller upon the Closing (as defined in the Stock Purchase Agreement) if the Seller procedures set forth herein and the Purchaser have both executed a written request to Deposit Escrow Agent no later than the business day prior to the Closing requesting the release of the Purchaser Deposit to the Seller at the Closing, provided that Deposit Escrow Agent shall release the Purchaser Deposit pursuant to this clause (i) only if Deposit Escrow Agent has received written instructions from both the Seller and the Purchaser on the day of Closing that the Closing is occurring; (ii) to the Seller upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Seller requesting the release of the Purchaser Deposit accompanied by a statement either that the Seller has terminated the Stock Purchase Agreement either as a result of a material breach of the Stock Purchase Agreement by the Purchaser or as a result of a failure of any of the conditions set forth in Sections 7.1, 7.2, 7.3, 7.7 or 7.10 of the Stock Purchase Agreement, specifying in reasonable detail the basis for such request (which request shall be delivered to the Purchaser at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Purchaser); (iii) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release of the Purchaser Deposit accompanied by a statement that the Stock Purchase Agreement has been terminated for any reason except if the provisions described in clause (ii) apply, specifying in reasonable detail the basis for such request (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller); and (iv) to the Purchaser upon the 10th business day following the receipt by Deposit Escrow Agent of a written request from the Purchaser requesting the release of the Purchaser Deposit accompanied by a statement that the Seller's Bid Procedures Order (the "BID PROCEDURES ORDER"), which Bid Procedures Order shall include an approval and authorization by the United States Bankruptcy Court for the District of Delaware (the "BANKRUPTCY COURT") of the Seller's execution and delivery of this Deposit Escrow Agreement, has not been entered on the docket by the Bankruptcy Court within 45 days of the execution of the Stock Purchase Agreement (which request shall be delivered to the Seller at the same time it is delivered to Deposit Escrow Agent and Deposit Escrow Agent shall confirm delivery of such request to the Seller).. ARTICLE 10