Common use of Distributions by the Escrow Agent Clause in Contracts

Distributions by the Escrow Agent. The Escrow Agent is authorized to release and deliver amounts in the Escrow Fund as follows: (i) Subject to Section 10, the Escrow Agent shall pay to the Sellers within one Business Day (as defined in the Purchase Agreement) after the end of each calendar quarter (commencing with the quarter ended _____________, 1997) all income received from the investment of the Escrow Fund during the quarter then ended; (ii) If the Purchaser reasonably determines that it is entitled to indemnification by the Sellers under Section 9.01 of the Purchase Agreement or under the Tax Matters Agreement (as defined in the Purchase Agreement) (the "Indemnification") and the Sellers fail to indemnify the Purchaser pursuant thereto, the Purchaser shall notify the Escrow Agent and the Sellers in writing of the amount to be indemnified and the amount of the indemnity to which the Purchaser is entitled, and upon the Sellers' written consent to the Escrow Agent and the Purchaser, which consent shall not be unreasonably withheld, the Escrow Agent shall pay to the Purchaser or its designee the lesser of such amount or the undistributed portion of the Deposit Amount. In the event that the Sellers do not agree with the Purchaser that the Purchaser is entitled to indemnification pursuant to the Indemnification, the Purchaser and the Sellers shall attempt in good faith to reconcile their differences. Any resolution by the Sellers and the Purchaser as to any disputed amounts shall be set forth in certificates signed by duly authorized officers of each of the Sellers and the Purchaser, respectively, which resolution shall be final, binding and conclusive on the parties, and the Escrow Agent shall pay the lesser of such agreed upon amount or the undistributed portion of the Deposit Amount to the Purchaser or its designee. If the Purchaser and the Sellers are unable to reach a resolution of such disputed amount within 30 Business Days after the Purchaser's written notice to the Sellers and the Escrow Agent, the Purchaser and the Sellers shall submit the items in dispute to arbitration. Any such arbitration shall be conducted expeditiously and confidentially in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA") as such rules shall be in effect on the date of delivery of demand for arbitration. Any such arbitration shall be heard and conducted in Florida. Notwithstanding the rules of the AAA, the arbitration panel in any such arbitration shall consist of three persons who must be disinterested current or retired officers of insurance companies other than the parties to this Agreement or their Affiliates. Within twenty days of delivery of any demand for arbitration hereunder, the Seller's Representation and the Purchaser shall each appoint one arbitrator, and the two arbitrators so selected shall appoint the third arbitrator within twenty days of their appointment. In the event the two selected arbitrators are unable to agree upon the selection of a third arbitrator after reasonable efforts, a panel of seven qualified persons shall be requested from the AAA. The parties shall alternately strike one person with the last remaining person being the third designated arbitrator. Each party shall pay the fees of its own attorneys, expenses of witnesses and all other expenses connected with the presentation of such party's case. One-half of any remaining costs of any arbitration, including the cost of the record or transcripts thereof, if any, administrative fees, and all other fees involved, shall be paid by the Purchaser, and the remaining one-half shall be paid by the Sellers. The arbitrators shall decide by a majority vote of the arbitrators. All conclusions of law reached by the arbitrators shall be made in accordance with the internal substantive laws of the State of New York without regard to conflict of laws principles. Any award rendered by the arbitrators shall be accompanied by a written opinion setting forth the findings of fact and conclusions of law relied upon in reaching their decision. There shall be no appeal from their written decision. Judgment may be entered on the decision of the arbitrators by any court having jurisdiction. The parties agree that the existence, conduct and content of any arbitration shall be kept confidential and no party shall disclose to any person any information about such arbitration, except as may be required for financial reporting purposes in each party's financial statements. (iii) Upon the second anniversary of the Closing Date (as defined in the Purchase Agreement) or, if on such date the Purchaser has an unsatisfied claim for indemnification or reasonably expect in good faith to have a claim for indemnification pursuant to the Indemnification, the date on which such claim is resolved to the reasonable satisfaction of the Purchaser (the "Expiration Date"), the Purchaser shall notify the Escrow Agent and the Sellers in writing that the Expiration Date has occurred and, upon receipt of such notice, the Escrow Agent shall pay to the Sellers an amount equal to the undistributed portion of the Deposit Amount; and (iv) Notwithstanding anything contained in this Agreement to the contrary, the Escrow Agent shall pay to such persons such amounts from the undistributed portion of the Escrow Fund as may be designated in written instructions executed by the Purchaser and the Seller and delivered to the Escrow Agent from time to time.

Distributions by the Escrow Agent. (a) The Escrow Agent is authorized to release and deliver amounts in the Escrow Fund as follows: (i) Subject to Section 10, the Escrow Agent shall pay to the Sellers within one Business Day (as defined in the Purchase Agreement) after the end of each calendar quarter (commencing with the quarter ended _____________, 1997) all income received from the investment of the Escrow Fund during the quarter then ended; (ii) If the Purchaser reasonably determines that it is entitled to indemnification by the Sellers under Section 9.01 of the Purchase Agreement or under the Tax Matters Agreement (as defined in the Purchase Agreement) (the "Indemnification") and the Sellers fail to indemnify the Purchaser pursuant thereto, the Purchaser shall notify the Escrow Agent and the Sellers in writing of the amount to be indemnified and the amount of the indemnity to which the Purchaser is entitled, and upon the Sellers' written consent to the Escrow Agent and the Purchaser, which consent shall not be unreasonably withheld, the Escrow Agent shall pay to the Purchaser or its designee the lesser of such amount or the undistributed portion of the Deposit Amount. In the event that the Sellers do not agree with the Purchaser that the Purchaser is entitled to indemnification pursuant to the Indemnification, the Purchaser and the Sellers shall attempt in good faith to reconcile their differences. Any resolution by the Sellers and the Purchaser as to any disputed amounts shall be set forth in certificates signed by duly authorized officers of each of the Sellers and the Purchaser, respectively, which resolution shall be final, binding and conclusive on the parties, and the Escrow Agent shall pay the lesser of such agreed upon amount or the undistributed portion of the Deposit Amount to the Purchaser or its designee. If the Purchaser and the Sellers are unable to reach a resolution of such disputed amount within 30 Business Days after the Purchaser's written notice to the Sellers and the Escrow Agent, the Purchaser and the Sellers shall submit the items in dispute to arbitration. Any such arbitration shall be conducted expeditiously and confidentially in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA") as such rules shall be in effect on the date of delivery of demand for arbitration. Any such arbitration shall be heard and conducted in Florida. Notwithstanding the rules of the AAA, the arbitration panel in any such arbitration shall consist of three persons who must be disinterested current or retired officers of insurance companies other than the parties to this Agreement or their Affiliates. Within twenty days of delivery of any demand for arbitration hereunder, the Seller's Representation and the Purchaser shall each appoint one arbitrator, and the two arbitrators so selected shall appoint the third arbitrator within twenty days of their appointment. In the event the two selected arbitrators are unable to agree upon the selection of a third arbitrator after reasonable efforts, a panel of seven qualified persons shall be requested from the AAA. The parties shall alternately strike one person with the last remaining person being the third designated arbitrator. Each party shall pay the fees of its own attorneys, expenses of witnesses and all other expenses connected with the presentation of such party's case. One-half of any remaining costs of any arbitration, including the cost of the record or transcripts thereof, if any, administrative fees, and all other fees involved, shall be paid by the Purchaser, and the remaining one-half shall be paid by the Sellers. The arbitrators shall decide by a majority vote of the arbitrators. All conclusions of law reached by the arbitrators shall be made in accordance with the internal substantive laws of the State of New York without regard to conflict of laws principles. Any award rendered by the arbitrators shall be accompanied by a written opinion setting forth the findings of fact and conclusions of law relied upon in reaching their decision. There shall be no appeal from their written decision. Judgment may be entered on the decision of the arbitrators by any court having jurisdiction. The parties agree that the existence, conduct and content of any arbitration shall be kept confidential and no party shall disclose to any person any information about such arbitration, except as may be required for financial reporting purposes in each party's financial statements. (iii) Upon the second anniversary of the Closing Date (as defined in the Purchase Agreement) or, if on such date the Purchaser has an unsatisfied claim for indemnification or reasonably expect in good faith to have a claim for indemnification pursuant to the Indemnification, the date on which such claim is resolved to the reasonable satisfaction of the Purchaser (the "Expiration Date"), the Purchaser shall notify the Escrow Agent and the Sellers in writing that the Expiration Date has occurred and, upon receipt of such notice, the Escrow Agent shall pay to the Sellers an amount equal to the undistributed portion of the Deposit Amount; and (iv) Notwithstanding anything contained in this Agreement to the contrary, the Escrow Agent shall pay to such persons such amounts from the undistributed portion of the Escrow Fund as may be designated in written instructions executed by the Purchaser and the Seller and delivered to the Escrow Agent from time to time. (b) All distributions made by the Escrow Agent pursuant to this Section 4 shall be made by wire transfer to an account designated in writing by the Sellers (if made pursuant to Section 4(a)(i) and 4(a)(iii)), by the Purchaser (if made pursuant to Section 4(a)(ii)) or by the Sellers and the Purchaser (if made pursuant to Section 4(a)(iv)).