Deposit of Escrow Securities in Escrow (1) You are depositing the securities (escrow securities) listed opposite your name in Schedule “A” with the Escrow Agent to be held in escrow under this Agreement. You will immediately deliver or cause to be delivered to the Escrow Agent any share certificates or other evidence of these securities which you have or which you may later receive.
(2) If you receive any other securities (additional escrow securities):
(a) as a dividend or other distribution on escrow securities;
(b) on the exercise of a right of purchase, conversion or exchange attaching to escrow securities, including securities received on conversion of special warrants;
(c) on a subdivision, or compulsory or automatic conversion or exchange of escrow securities; or
(d) from a successor issuer in a business combination, if Part 6 of this Agreement applies, you will deposit them in escrow with the Escrow Agent. You will deliver or cause to be delivered to the Escrow Agent any share certificates or other evidence of those additional escrow securities. When this Agreement refers to escrow securities, it includes additional escrow securities.
(3) You will immediately deliver to the Escrow Agent any replacement share certificates or other evidence of additional escrow securities issued to you.
Claims Upon Escrow Fund (a) Upon receipt by the Escrow Agent on or before the last day of the Escrow Period of a certificate signed by any officer of Acquiror (an "Officer's Certificate") specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid, or properly accrued or arose, the nature of the misrepresentation, breach of warranty or claim to which such item is related, the Escrow Agent shall deliver to Acquiror out of the Escrow Fund, as promptly as practicable, Escrow Shares, Performance Option Shares or other assets held in the Escrow Fund having a value equal to such Damages, provided, however, that except in such instance where a Target Stockholder has -------- ------- delivered cash in lieu of surrendering Escrow Shares pursuant to Section 8.5(c) below (in which instance such cash may be delivered alongside any Escrow Shares), the Escrow Agent shall deliver all of the Escrow Shares prior to delivering any Performance Option Shares or other assets held in the Escrow Fund. All shares of Acquiror Common Stock subject to such claims shall remain in the Escrow Fund until Damages are actually incurred or paid or the Acquiror determines in its reasonable good faith judgment and certifies to the Escrow Agent that no Damages will be incurred or paid (in which event such shares shall be distributed to the Target Stockholders in accordance with Section 8.4 above).
(b) For the purpose of compensating Acquiror for its Damages pursuant to this Agreement, the Escrow Shares, the Merger Shares and the Performance Option Shares shall be valued at the greater of the fair market value on the date of certification of such claim pursuant to this section, as determined by the Board of Directors of Acquiror acting in good faith, or $2.00 per share, provided, however, that if such certification occurs after the initial public offering of the Acquiror's Common Stock (the Acquiror IPO"), the Escrow Shares, the Merger Shares and the Performance Option Shares shall be valued at the closing price on such date as quoted by the Wall Street Journal (or if such paper is not published on such date, the next preceding date of publication). Acquiror shall set forth such value in each Officer's Certificate identifying Damages. The Escrow Agent may rely on such certificate without inquiry and may assume that the value set forth therein has been determined in good faith in accordance with this Section 8.5(b).
(c) Prior to the Acquiror IPO, if any Target Stockholder shall disagree with the fair market value of the Escrow Shares (or if any Principal Stockholder shall disagree with the fair market value of the Performance Option Shares) as determined by the Board of Directors of Acquiror and set forth in an Officer's Certificate as such, such Target Stockholder or Principal Stockholder (as applicable) may elect to pay all (but not less than all) of his or her respective portion of the Damages claimed in such Officer's Certificate in cash in lieu of surrendering Escrow Shares or Performance Option Shares. Any Target Stockholder electing to pay his or her respective Damages in cash must deliver such cash in immediately available funds to the Escrow Agent together with a letter indicating the purpose of such funds not later than 10 calendar days following the receipt of the Officer's Certificate relating to such Damages by either Stockholders' Agent. The date of receipt of any Officer's Certificate shall be determined in accordance with Section 9.2 hereof. If the Escrow Agent shall not receive such funds prior to such time, the Escrow Agent shall, at Acquiror's option, distribute such Target Stockholder's Escrow Shares, or such Principal Stockholder's Performance Option Shares, to the Indemnified Persons and shall return any funds received to such Target Stockholder or Principal Stockholder, as applicable. No interest shall accrue on any cash so delivered irrespective of the amount of time that such cash is held by the Escrow Agent.
Collection of Taxes, Assessments and Similar Items; Escrow Accounts (a) To the extent required by the related Mortgage Note and not violative of current law, the Master Servicer shall establish and maintain one or more accounts (each, an "Escrow Account") and deposit and retain therein all collections from the Mortgagors (or advances by the Master Servicer) for the payment of taxes, assessments, hazard insurance premiums or comparable items for the account of the Mortgagors. Nothing herein shall require the Master Servicer to compel a Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be made only to effect timely payment of taxes, assessments, hazard insurance premiums, condominium or PUD association dues, or comparable items, to reimburse the Master Servicer out of related collections for any payments made pursuant to Sections 3.01 hereof (with respect to taxes and assessments and insurance premiums) and 3.09 hereof (with respect to hazard insurance), to refund to any Mortgagors any sums determined to be overages, to pay interest, if required by law or the terms of the related Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account or to clear and terminate the Escrow Account at the termination of this Agreement in accordance with Section 9.01 hereof. The Escrow Accounts shall not be a part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in Section 3.06(a) that are not timely paid by the Mortgagors on the date when the tax, premium or other cost for which such payment is intended is due, but the Master Servicer shall be required so to advance only to the extent that such advances, in the good faith judgment of the Master Servicer, will be recoverable by the Master Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise.
Disbursements of Escrow Funds (a) Escrow Agent shall disburse Escrow Funds at any time and from time to time, within two (2) Business Days of receipt of, and in accordance with, a Joint Written Direction. Such Joint Written Direction shall contain complete payment instructions, including wire transfer instructions or an address to which a check shall be sent. By signing this Agreement, each of the Parties agrees to execute and provide Joint Written Directions as are consistent with the provisions and intent of the Underlying Agreement and this Agreement.
(b) Within two (2) Business Days of receipt of a written notification from either Party of a Final Order (with a copy of such written notification provided concurrently to the other Party), which notification will attach a copy of such Final Order, instructing Escrow Agent that a Party or other person is entitled to the release of Escrow Funds pursuant to the Underlying Agreement, Escrow Agent shall release such Escrow Funds in accordance with such Final Order and accompanying instructions. Any such Final Order delivered to Escrow Agent shall be accompanied by a certificate from the Party delivering the Final Order (with a copy of such certificate provided concurrently to the other Party) confirming that such Final Order is final and nonappealable and issued from a court of competent jurisdiction, and that the accompanying instructions are in accordance with such Final Order. Escrow Agent shall be entitled to conclusively rely upon such certification and instructions and shall have no responsibility to make any determination as to whether the Final Order is from a court of competent jurisdiction or is final and nonappealable.
(c) Prior to any disbursement, Escrow Agent shall have received reasonable identifying information regarding the recipient so that Escrow Agent may comply with its regulatory obligations and reasonable business practices, including without limitation a completed United States Internal Revenue Service (“IRS”) Form W-9 or Form W-8, as applicable. All disbursements of funds from Escrow Funds shall be subject to the fees and claims of Escrow Agent and the Indemnified Parties pursuant to Section 10 and Section 11.
(d) Each of Purchaser and the Seller Representative may deliver written notice to Escrow Agent in accordance with Section 14 changing such Party’s wire transfer instructions, which notice shall be effective only upon receipt by Escrow Agent.
(e) Escrow Agent shall, within five (5) Business Days of the end of each calendar month, deliver to Purchaser and the Seller Representative a statement setting forth (i) the aggregate amount of Escrow Funds so released or disbursed, (ii) the recipient of such disbursement or release, (iii) whether such disbursement or release was made from the Adjustment Escrow Account, the Indemnity Escrow Account, or the Interim Breach Escrow Account, and (iv) the respective balances of the Adjustment Escrow Account, the Indemnity Escrow Account, and the Interim Breach Escrow Account as of such date after giving effect to such disbursement or release. Promptly upon receipt of the Escrow Funds, Escrow Agent shall provide Purchaser and the Seller Representative with permissions to view the Adjustment Escrow Account, the Indemnity Escrow Account, and the Interim Breach Escrow Account via the Internet at no additional cost.
Tax and Insurance Escrow Fund (a) If (and for so long as) a Trigger Event shall have occurred and shall not have been cured by a Trigger Event Cure, on each Payment Date during such period, Borrower shall pay to Lender (or Servicer, as directed by Lender) an amount equal to (i) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates, and (ii) one-twelfth of the Insurance Premiums that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said amounts in (i) and (ii) above hereinafter called the “Tax and Insurance Escrow Fund”). Lender shall apply the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.1.2 hereof and under the Mortgage Loan Agreement. In making any payment relating to the Tax and Insurance Escrow Fund, Lender may do so according to any ▇▇▇▇, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such ▇▇▇▇, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.1.2 hereof, provided no Event of Default shall have occurred and be continuing, then Lender shall return any excess to Borrower (or to Operating Company, if so directed by Borrower). In allocating such excess, Lender may deal with the Person shown on the records of Lender to be the owner of the Properties. If at any time Lender reasonably determines that the Tax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (i) and (ii) above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender estimates is sufficient to make up the deficiency at least thirty (30) days prior to the due date of the Taxes and/or thirty (30) days prior to expiration of the Policies, as the case may be.
(b) Notwithstanding the foregoing, Borrower shall not be required to make any deposits into the Tax and Insurance Escrow Fund on account of Insurance Premiums if (and for so long as) Borrower shall maintain a blanket insurance policy in respect of the Properties that is in accordance with the provisions of Section 6.1(a) and otherwise satisfactory to Lender in all material respects.
(c) Any amount remaining in the Tax and Insurance Escrow Fund following the occurrence of a Trigger Event Cure shall be returned to Borrower (or Operating Company, as directed by Borrower).