Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b). (b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability. (c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority. (d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution. (e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account. (f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation. (g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Vangent, Inc.)
Escrow Arrangement. On or before the date of the Third Supplemental Indenture, the Company shall (ai) The Significant Shareholder hereby covenants enter into an escrow agreement (“Hedging Monies Escrow Agreement”) with the Trustee and agrees that the amount of $3,000,000 DB International Trustee (Singapore) Limited, as escrow agent (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Hedging Monies Escrow Agent”), established pursuant to which the terms Hedging Monies Escrow Agent shall establish a United States dollar-denominated escrow account in the name of the Escrow Agreement, among Company as a sub-account to the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L existing Debt Service Reserve Account (the “Hedging Monies Escrow AgreementAccount”)) and the Company shall, on or prior to the date hereof, deposit therein US$2,562,500 by transfer of such funds from the existing Debt Service Reserve Account to the Hedging Monies Escrow Account and (ii) perform all of the obligations in the Account Charge to perfect a first priority security interest created thereunder over the funds in the Hedging Monies Escrow Account in favor of the Collateral Agent acting on behalf of the Holders. The Purchaser Trustee shall pay all Taxes owed in respect thereafter within a reasonable time period serve a written notice of any net income or gain realized by the Escrow Account on a current basisdeposit of such amount to the Holders. The On the last day of each Fiscal Quarter (beginning with the Fiscal Quarter ended June 30, 2009), the Hedging Monies Escrow Agent shall distribute cash notify the Trustee of the then outstanding balance in the Hedging Monies Escrow Account. If, on the last day of any Fiscal Quarter after the execution of the Hedging Monies Escrow Agreement (beginning with the Fiscal Quarter ended June 30, 2009), the balance in the Hedging Monies Escrow Account is less than 125% of the Prevailing Hedge Price (determined with respect to the Purchaser Quotes received by the Trustee during the most recent Applicable Quote Period), the Trustee shall notify the Company, the Holders of the Notes and the Hedging Monies Escrow Agent in writing of such shortfall and the amount thereof. Whether or not the Company receives any notice from the Trustee of such shortfall, upon the occurrence of such shortfall and within ten (10) Business Days after the beginning of such next succeeding Fiscal Quarter, the Company shall deposit, or cause to be deposited on the Company’s behalf, an amount equal to such shortfall into the income Tax liability Hedging Monies Escrow Account. If, on the last day of Purchaser on such income or gainany Fiscal Quarter after the execution of the Hedging Monies Escrow Agreement, using the tax rate balance in the Hedging Monies Escrow Account is more than 125% of the Prevailing Hedge Price (determined with respect to which such income or gain was subject as determined the Quotes received by the Purchaser Trustee during the most recent Applicable Quote Period), the Company shall have the right to withdraw such surplus amount from the Hedging Monies Escrow Account pursuant to the following terms and conditions:
(with an appropriate reduction i) Upon the satisfaction of the terms and conditions set forth in such tax rate attributable clause (ii) below and subject to imputed interest expense deductions reasonably expected the terms and conditions set forth therein, the Company shall execute and deliver to be realized the Trustee a Disbursement Request pursuant to Section 2.3(b) of the Hedging Monies Escrow Agreement. Upon the receipt by the Purchaser Trustee of the Disbursement Request, the Trustee shall execute a Release Instruction (as defined in respect the Hedging Monies Escrow Agreement) pursuant to Section 2.3(a) of current the Hedging Monies Escrow Agreement on the second Business Day following the day of receipt of a completed Disbursement Request and future payments deliver the signed Release Instruction to the Significant Shareholder of any Hedging Monies Escrow Funds) (and Agent, provided such receipt shall take place before 11:00 a.m. Hong Kong time on a Business Day. If a Disbursement Request is received after 11:00 a.m. Hong Kong time, then it shall be deemed to have been received on the Purchaser and next following Business Day. If a Disbursement Request is received on a day which is not a Business Day, it shall be deemed to have been received on the Holders’ Agent next following Business Day. The Release Instruction shall give instructions to direct the Hedging Monies Escrow Agent to such effect). Subject release the amounts specified in the Release Instruction from the Hedging Monies Escrow Account to the preceding sentence, account specified in the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b)Release Instruction.
(bii) Subject The obligation of the Trustee to execute a Release Instruction is expressly subject to the satisfaction of, and compliance with, the following terms and conditions:
(A) the Trustee’s receipt of three (3) Quotes during the most recent Applicable Quote Period pursuant to this Section 4.08(b);
(B) a balance in the Hedging Monies Escrow Account on the last day of a Fiscal Quarter of more than 125% of the Prevailing Hedge Price; and
(C) the Trustee’s receipt of a Disbursement Request pursuant to Section 2.17(e)2.3(b) of the Hedging Monies Escrow Agreement which shall specify the amount which the Company seeks to withdraw from the Hedging Monies Escrow Account, (i) which amount shall not exceed the positive difference between the balance in the Hedging Monies Escrow Account on the fifth Business Day following each occurrence last day of a Tax Resolution, the Purchaser Applicable Fiscal Quarter and 125% of the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), Prevailing Hedge Price. Upon any release of such surplus amount from the balance of the Escrow Funds in the Hedging Monies Escrow Account, the lien on the released amount required to be paid pursuant to the Tax Resolution up to the remaining balance in favor of the Escrow Funds, and (ii) the Purchaser and the Holders’ Collateral Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions acting on behalf of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account Holders shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreementimmediately released.
Appears in 1 contract
Sources: Third Supplemental Indenture (7 Days Group Holdings LTD)
Escrow Arrangement. (a) At any time prior to the obtaining of the NJBPU Approval and/or the FPSC Approval, the Borrower shall have an option to request, and the Administrative Agent and each Lender hereby agrees, subject to satisfaction of the conditions of Sections 6.1 and 6.2 hereof (other than (x) the obtaining of the NJBPU Approval and the FPSC Approval, (y) the effectiveness of Section 2 of Amendment No. 3 to the Existing Credit Agreement and Section 2 of Amendment No. 3 to the NUI Corporation Credit Agreement and (z) the extension of the Termination Date under each of the NUI Corporation Credit Agreement and the Existing Credit Agreement), and receipt by the Administrative Agent of at least three Business Days prior written notice thereof, that each Lender shall make Loans pursuant to Section 2.1; provided that (i) the proceeds of the Loans and the Arrangement Fee (as such term is defined in the Fee Letter) and all other fees then due and payable pursuant to the Fee Letter shall be funded into an escrow account maintained by the Administrative Agent at The Significant Shareholder hereby covenants and agrees that the amount Bank of $3,000,000 New York (the “Initial "Escrow Amount”Account") and (ii) all invoiced reimbursable expenses of the Administrative Agent and the Collateral Agent incurred on or prior to the date of such funding (including without limitation the reasonable fees and disbursements of the Administrative Agent's special counsel, Dewey Ballantine LLP) shall be automatically netted out paid by the Borrower prior to or su▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇emporaneously with funding the proceeds of the portion Loans into the Escrow Account. All of such funds shall be automatically released on the Closing Merger Consideration payable date when the Administrative Agent receives the evidence satisfactory to the Significant Shareholder pursuant Administrative Agent that the NJBPU Approval and the FPSC Approval have been obtained, in each case, in form and substance reasonably satisfactory to this the Administrative Agent and Section 2 of Amendment No. 3 to the Existing Credit Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant Section 2 of Amendment No. 3 to the terms NUI Corporation Credit Agreement shall have become effective (regardless of whether the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, other conditions set forth in Sections 6.1 and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash 6.2 hereof could be met at such time) to the Purchaser in respective payees as follows: (x) CSFB shall receive, for its own account, an amount equal to the income Tax liability Arrangement Fee and all other fees and expenses then due and payable pursuant hereto or the Fee Letter and (y) the Borrower shall receive the remainder of Purchaser the funds in the Escrow Account. For the avoidance of doubt, (i) the interest on such income or gain, using the tax rate Loans shall start to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to accrue and shall be realized by the Purchaser in respect of current and future payments payable to the Significant Shareholder Lenders from the date of any funding of the proceeds of the Loans into the Escrow FundsAccount, and (ii) (funds in the Escrow Account shall bear interest from such date and the Purchaser and the Holders’ Agent such interest shall give instructions be paid to the Escrow Agent to Borrower on the date when such effect). Subject to funds are released or returned, as the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b)case may be.
(b) Subject to Section 2.17(e)Notwithstanding the foregoing, (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released if funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining held in the Escrow Account in excess of any Escrow Funds required are not released on or prior to September 30, 2004 (due to the failure to obtain such Tax Resolution.
the NJBPU Approval or the FPSC Approval), then (ei) If Tax Resolutions with respect the Borrower shall then owe a fee (the "Release Fee") to all Covered Tax Matters the Lenders in an aggregate amount equal to the amount of interest which would have not been obtained by accrued on the Loans from the date which is 24 months from the Closing Dateescrowed through September 30, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release2004, in accordance with Section 2.17(c(ii) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances funds held in the Escrow Account shall be made net distributed on September 30, 2004 as follows:
(A) the Administrative Agent shall receive for the account of any losses on investments on balances each Lender an aggregate amount equal to the proceeds of the Loans and the Release Fee, and (B) the Borrower shall receive the remainder of the funds, if any, in the Escrow Account, pursuant ; provided that in the event that the funds held in the Escrow Account are not sufficient to make the distribution set forth in clause (ii)(A) above the Borrower shall pay to the applicable Administrative Agent for the account of each Lender the amount of such deficiency, and (iii) the compensation, reimbursement and indemnification provisions of contained in the Escrow AgreementCommitment Letter and in the Fee Letter shall be reinstated and in full force and effect on and from the date thereof.
Appears in 1 contract
Sources: Credit Agreement (Nui Corp /Nj/)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at At the Closing, Buyer and the Seller shall enter into a separate, interest-bearing escrow account (the “an Escrow Account”) Agreement with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially Agent in the form attached hereto as Exhibit L D, pursuant to which, among other things, Buyer shall deposit an amount in cash equal to the Escrow Amount in order to (i) provide Buyer with a source of funds for satisfaction of any amounts owing to Buyer resulting from any adjustment to the amount of the Purchase Price in connection with the Excess Amount, (ii) provide Buyer with a source of funds for satisfaction of any amounts owing from the Seller to the Buyer resulting from Damages required to be indemnified by the Seller under Section 6 of this Agreement (the “Escrow AgreementAccount”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), All parties hereto agree for all Tax purposes that: (i) on Buyer shall be treated as the fifth Business Day following each occurrence owner of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, and all interest and earnings earned from the amount required to be paid pursuant to the Tax Resolution up to the remaining balance investment and reinvestment of the Escrow FundsAmount, if any, or any portion thereof, shall be allocable for income Tax purposes to Buyer pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8, (ii) if and to the extent any amount in the Escrow Account is actually distributed to or on behalf of the Seller (or deemed distributed to or on behalf of the Seller under applicable Law), interest may be imputed on such amount payable (or deemed payable) to the Seller, as required by Section 483 or 1274 of the Code, and (iiiii) in no event shall the Purchaser and aggregate payments under the Holders’ Agent shall deliver joint written instructions Escrow Agreement to the Seller from the Escrow Account exceed the sum of the Escrow Amount. Clause (iii) of the preceding sentence is intended to ensure that the right of the Seller to the Escrow Agent to releaseAmount and any interest and earnings earned thereon is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. No party hereto shall take any action or filing position inconsistent with the foregoing, in accordance with Section 2.17(c), any amounts requested except as required by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liabilityLaw.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions Distributions from the Escrow Account of dividendsto the Seller or Buyer, interestas applicable, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances as provided in the Escrow Account, pursuant to the applicable provisions of this Agreement and the Escrow Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Cleanspark, Inc.)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants Simultaneously with the execution and agrees that the delivery of this Agreement by a Purchaser, such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing such Purchaser’s Purchase Price, to be paid to a non-interest bearing escrow account of $3,000,000 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (the “Initial Lead Purchaser Counsel”) (the aggregate amounts received being held in escrow by Lead Purchaser Counsel are referred to herein as the “Escrow Amount”) ). Lead Purchaser Counsel shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of hold the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially Amount in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed escrow in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b10.1(b).
(b) Subject Lead Purchaser Counsel shall continue to Section 2.17(e)hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(i) on the fifth Business Day following each occurrence date this Agreement is terminated pursuant to Section 8, in which case, if Lead Purchaser Counsel then holds any portion of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent Amount, then: (A) Lead Purchaser Counsel shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to releaseeach such Purchaser, in accordance with Section 2.17(c)written wire transfer instructions received from such Purchaser; and (B) if Lead Purchaser Counsel has not received written wire transfer instructions from any Purchaser before such termination date, from the balance then Lead Purchaser Counsel may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Funds in the Escrow Account, the amount required Amount to be paid pursuant returned to the Tax Resolution up such Purchaser in a court of competent jurisdiction on written notice to the remaining balance such Purchaser, and Lead Purchaser Counsel shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Funds, and Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(ii) in the Purchaser case of the Closing, receipt of written instructions from both the Company and the Holders’ Agent Lead Purchaser that the Closing shall deliver joint written instructions to have been consummated, in which case, Lead Purchaser Counsel shall release the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, Amount as per the joint written payment instructions of received from the Purchaser Company and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing AuthorityLead Purchaser.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cord Blood America, Inc.)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants Issuer has established the Escrow Account with the Escrow Agent pursuant to the Escrow Agreement. The Issuer has deposited 7,443,782 VIP Shares and agrees 6,426,600 Preferred VIP Shares in the Escrow Account. Neither the Issuer nor the Guarantor nor any affiliates thereof own any shares of capital stock of VIP, except for the shares deposited into the Collateral Account and the Escrow Account. The Issuer shall not terminate (except in accordance with Section 14 of the Collateral Agreement) or breach the Escrow Agreement or otherwise, directly or indirectly, sell, pledge, loan or otherwise transfer title to or economics in the VIP Shares and the Preferred VIP Shares held in the Escrow Account, without obtaining the prior written consent of Holders of a majority of the aggregate principal amount of the Securities then outstanding, except that the amount Issuer shall be allowed to pledge the VIP Shares held in the Escrow Account for the benefit of $3,000,000 a third party (together with any collateral agent for, and any other Person acting on behalf of, such third party, the “Initial Escrow AmountThird Party Pledgee”) shall be automatically netted out if each of the portion following conditions shall have been satisfied (any such transaction, a “Permitted Financing Transaction”): (a) the Third Party Pledgee shall have agreed (i) not to foreclose upon or otherwise dispose of any VIP Shares so pledged to such Third Party Pledgee, except for (1) delivery of the Closing Merger Consideration payable VIP Shares so pledged to Telenor in settlement of the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established Telenor Liquidity Transaction pursuant to the terms of the Escrow AgreementTelenor Liquidity Transaction or (2) only in the case of an early termination of the Telenor Liquidity Transaction as a result of a Telenor-related credit event, among (x) sale of the Escrow Agent, VIP Shares so pledged to one of the Holders’ AgentPre-agreed Strategic Buyers so long as such a sale is settled not earlier than ten Business Days following such an early termination and the Pre-agreed Strategic Buyer has entered into an agreement with the Third Party Pledgee for the benefit of the Trustee on the terms described in Section 3.10(c) below, and Purchaser, substantially (y) sale of the VIP Shares so pledged to any person so long as such a sale is initiated not earlier than 30 days after such an early termination event; provided that the VIP Shares may not be (1) delivered to Telenor in settlement of the Telenor Liquidity Transaction or (2) only in the form attached hereto case of an early termination of the Telenor Liquidity Transaction, (x) sold to one of the Pre-arranged Strategic Buyers or (y) sold otherwise, in each case for so long as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed Collateral Agent is prevented from being able to exercise its remedies under Section 8 of the Collateral Agreement as a result of a legal action being brought in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current jurisdiction and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds each relevant period shall be held, invested and distributed in accordance with tolled for as long as the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject Collateral Agent is prevented from being able to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Fundsexercise such remedies, and (ii) not to convert the Purchaser VIP Shares so pledged into VIP ADRs, in each case, until the earlier of (x) the time when all amounts owing under the Securities, this Indenture and the Holders’ Agent Collateral Agreement shall deliver joint written instructions to have been paid in full or (y) the Escrow Agent to release, in accordance with Section 2.17(c), later of (1) the 31st day after an initial sale of any amounts requested Collateral by the Holders’ Collateral Agent or (2) if the Collateral Agent is prevented from being able to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to exercise its remedies under Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions 8 of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e)Collateral Agreement as a result of legal proceedings having been brought in any jurisdiction, then on the tenth 11th Business Day following after the date day as of which the Collateral Agent is no longer so prevented from being able to exercise its remedies under Section 8 of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Collateral Agreement, distributions from and (b) the Escrow Account of dividends, interest, and other income on balances in the Escrow Account Trustee shall be made net a party, for the benefit of any losses on investments on balances in the Escrow AccountSecurityholders, pursuant to the applicable provisions arrangements with the Third Party Pledgee creating the security interest on such VIP Shares for the sole reason of enforcement of restrictions related to the VIP Shares and Preferred VIP Shares as contemplated in this Section 3.10 and the Holders of a majority of the Escrow Agreement.aggregate principal amount of the Securities then outstanding shall have
Appears in 1 contract
Sources: Indenture (Eco Telecom LTD)
Escrow Arrangement. (a) For the purpose of securing satisfaction by the Warrantors of certain conditions subsequent set forth in Section 1.06(c) (the "CONDITIONS SUBSEQUENT"), the Warrantors and the Investors (other than the Advance Payment Investors) shall enter into a mutually satisfactory escrow agreement (the "ESCROW AGREEMENT") with an escrow agent (the "ESCROW AGENT") selected by the Warrantors and reasonably satisfactory to the Investors. The Significant Shareholder hereby covenants Warrantors and agrees the Investors agree that the amount of $3,000,000 (Escrow Amount and the “Initial Escrow Amount”) Share Certificates shall be automatically netted out held, free and clear of any and all Liens other than subject to the portion Escrow Agreement, as of the Closing Merger Consideration payable Date, in an escrow account established pursuant to the Significant Shareholder pursuant Escrow Agreement. For the avoidance of doubt, the Shares issued to the Advance Payment Investors shall not be subject to the provisions of this Agreement Section 1.06.
(b) The Escrow Amount and deposited the Escrow Share Certificates shall be held in an escrow by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant Agent subject to the terms of the Escrow AgreementAgreement until the satisfaction or waiver of the Conditions Subsequent, among upon which the Escrow Amount (together with any accrued interest paid by the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser ) shall pay all Taxes owed in respect of any net income or gain realized be immediately released by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, Company as otherwise provided in Section 1.03 and the Escrow Funds Share Certificates shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to immediately released by the Escrow Agent to releasethe Investors as otherwise provided in Section 1.04; provided that, in accordance with the event that this Agreement is terminated by the Lead Series B Investor pursuant to Section 2.17(c)8.01(b) hereof, from the balance of the Escrow Funds in Amount (together with any accrued interest paid by the Escrow Account, the amount required to Agent) shall be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to returned by the Escrow Agent to releasethe Investors, in accordance with Section 2.17(c), any amounts requested by and the Holders’ Agent to Escrow Share Certificates shall be paid returned to the applicable Taxing Authority Company, each pursuant to reduce Section 8.02(b). For the outstanding liability for avoidance of doubt, upon the return of the Escrow Share Certificates, the Investors shall not be entitled to any Covered Tax Matter, provided that right to or interest in the Escrow Shares evidenced by such request is supported by written documentation substantiating that the amounts so requested will reduce such liabilityEscrow Share Certificates.
(c) If Unless otherwise waived by the amount Lead Series B Shareholder, the Conditions Subsequent shall be deemed to be released pursuant to Section 2.17(bsatisfied when the Company shall have (i) is less than or equal entered into (x) an amendment to the liability for joint venture contract between the Covered Tax Matter Company and Baoding Tianwei Baobian Electrics Co., Ltd (the "JV CONTRACT AMENDMENT") and (y) an amendment to which such released funds relatethe articles of association of Tianwei Yingli (the "JV ARTICLE AMENDMENT"), in each case to the reasonable satisfaction of the Lead Series B Shareholder; (ii) delivered a legal opinion to the reasonable satisfaction of the Investors from the PRC counsel of the Company that the Company has filed with, and obtained requisite Licenses, approvals and consents from the relevant Governmental or Regulatory Authorities (including, without limitation, the joint written payment instructions governmental approvals and filings as set forth in Section 2.07 of the Purchaser Disclosure Schedule) and any other third parties to effect the JV Contract Amendment, the JV Article Amendment and the Holders’ Agent Capital Increase; and (iii) the Shareholder Loan shall direct have been funded by the Escrow Agent Company to pay the released Escrow Funds directly Tianwei Yingli prior to the Company for remittance to Capital Increase and duly registered with the applicable Taxing AuthorityBaoding Branch of the State Administration of Foreign Exchange.
(d) Subject to Section 2.17(e), on Each Investor (other than an Advance Payment Investor) hereby appoints the tenth Business Day following the date of the occurrence of a Tax Resolution Lead Series B Shareholder as its representative with respect to the last unresolved Covered Tax Matternegotiation, the Purchaser execution and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all performance of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from and the Lead Series B Shareholder accepts such appointment. The Lead Series B Shareholder, acting in accordance with this Agreement, shall have the authority and power to act on behalf of other Investors (other than the Advance Payment Investors) with respect to the Escrow Account of dividends, interest, Agreement or other rights or obligations arising from and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, taken pursuant to the applicable provisions Escrow Agreement, provided that such actions do not increase or disproportionately affect an Investor's obligations hereunder in regards to the obligations of all Investors hereunder. Each Investor (other than an Advance Payment Investor) shall be bound by all actions taken by the Lead Series B Shareholder in accordance with this Agreement, in connection with the Escrow Agreement. Each of the Investors (other than the Lead Series B Shareholder and the Advanced Payment Investors) agrees, severally and not jointly, to indemnify, defend and hold harmless the other Lead Series B Shareholder to the fullest extent permitted by law from and against any and all Losses of the Lead Series B Shareholder resulting from or arising out of the Lead Series B Shareholder's action on behalf of other Investors with respect to the Escrow Agreement or other rights or obligations arising from and taken pursuant to the Escrow Agreement in the absence of willful misconduct or bad faith on the part of the Lead Series B Shareholder, provided, further that, such Losses shall be borne pro rata by each of the Investors (including the Lead Series B Shareholder) in proportion to such Investor's applicable Escrow Amount.
Appears in 1 contract
Sources: Series B Preferred Share Purchase Agreement (Yingli Green Energy Holding Co LTD)
Escrow Arrangement. (a) At any time prior to the obtaining of the NJBPU Approval and/or the FPSC Approval, the Borrower shall have an option to request, and the Agent and each Lender hereby agrees, subject to satisfaction of the conditions of Sections 2.6 and 6.1 of the Credit Agreement (determined as if Section 2 hereof had been given effect)(other than (x) the obtaining of the NJBPU Approval and the FPSC Approval, and (y) the extension of the Termination Date under the Credit Agreement), and receipt by the Agent of at least three Business Days prior written notice thereof, that each Lender shall make Delayed Draw Term Loans pursuant to Section 2.1; provided that (i) (A) the proceeds of the Delayed Draw Term Loans, (B) the fee payable in connection with borrowing of the Delayed Draw Term Loans pursuant to Section 2.4b(b) of the Credit Agreement, (C) the Extension Fee under the Credit Agreement and (D) the Amendment Fee hereunder (but not the costs and expenses under Section 4(a)(iii) hereof) to be funded into an escrow account maintained by the Agent at The Significant Shareholder hereby covenants and agrees that the amount Bank of $3,000,000 New York (the “Initial "Escrow Amount”Account") and (ii) all invoiced reimbursable expenses of the Agent incurred on or prior to the date of such funding (including without limitation the reasonable fees and disbursements of the Agent's special counsel, Dewey Balla▇▇▇▇▇ ▇▇▇) ▇▇▇▇▇ be paid by the Borrower prior to or substantially contemporaneously with funding the proceeds of the Delayed Draw Term Loans into the Escrow Account. All of such funds shall be automatically netted out released on the date when the Agent receives the evidence satisfactory to the Agent that the NJBPU Approval and the FPSC Approval have been obtained, in each case, in form and substance reasonably satisfactory to the Agent and Section 2 hereof and Section 2 of Amendment No. 3 to the NUI Corporation Credit Agreement, dated as of August 20, 2004 among NUI Corporation, the Agent thereunder on behalf of the portion of Required Lenders thereunder, the Closing Merger Consideration payable Guarantors party thereto and the Lenders listed on Schedule 2.1A thereto shall have become effective to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at respective payees as follows: (x) the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to receive, for the Purchaser in account of each Lender, an aggregate amount equal to the income Tax liability sum of Purchaser the fees specified in clauses (B), (C) and (D) above and all other fees and expenses then due and payable pursuant hereto and (y) the Borrower shall receive the remainder of the funds in the Escrow Account. For the avoidance of doubt, (i) the interest on such income or gain, using the tax rate Delayed Draw Term Loans shall start to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to accrue and shall be realized by the Purchaser in respect of current and future payments payable to the Significant Shareholder Lenders from the date of any funding of the proceeds of the Delayed Draw Term Loans into the Escrow FundsAccount, and (ii) (funds in the Escrow Account shall bear interest from such date and the Purchaser and the Holders’ Agent such interest shall give instructions be paid to the Escrow Agent to Borrower on the date when such effect). Subject to funds are released or returned, as the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b)case may be.
(b) Subject Notwithstanding the foregoing, if funds held in the Escrow Account are not released on or prior to Section 2.17(eSeptember 30, 2004 (due to the failure to obtain the NJBPU Approval or the FPSC Approval), then (i) on the fifth Business Day following each occurrence provisions of a Tax ResolutionSection 2 hereof shall be null and void, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and Borrower shall then owe a fee (the Holders’ Agent shall deliver joint written instructions "Release Fee") to the Escrow Agent to release, Lenders in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the an aggregate amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to amount of interest which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), would have accrued on the tenth Business Day following Delayed Draw Term Loans from the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matterescrowed through September 30, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder 2004, (iii) all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances funds held in the Escrow Account shall be made net distributed on September 30, 2004 as follows:
(A) the Agent shall receive for the account of any losses on investments on balances each Lender an aggregate amount equal to the proceeds of the Delayed Draw Term Loans and the Release Fee, and (B) the Borrower shall receive the remainder of the funds, if any, in the Escrow Account, pursuant ; provided that in the event that the funds held in the Escrow Account are not sufficient to make the distribution set forth in clause (iii)(A) above the Borrower shall pay to the applicable provisions Agent for the account of each Lender the Escrow Agreementamount of such deficiency.
Appears in 1 contract
Sources: Credit Agreement (Nui Corp /Nj/)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that At the Closing, the Purchaser shall pay or cause to be paid to the Escrow Agent, in immediately available funds by wire transfer, cash in U.S. Dollars in an amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable equal to the Significant Shareholder (a) Closing Purchase Price, reduced for any amount deducted or withheld pursuant to this Agreement and deposited by PurchaserSection 2.05(b), at without duplication, plus (b) the ClosingEscrow Agent Fees, into a separate, interest-bearing escrow to hold in an account (the “Escrow Account”) in accordance with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L an escrow agreement (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected ) to be realized executed at the Closing by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Seller. The Escrow Agreement (i) shall provide that the Escrow Agent shall give instructions release and disburse the Escrow Amount (less the Escrow Agent Fees) to the Seller upon the grant of the China Filing Approval as evidenced by either (A) the joint written instruction of the Seller and the Purchaser or (B) the final, non-appealable order of a Governmental Authority of competent jurisdiction and (ii) otherwise shall be in form and substance customary for transactions similar to those contemplated herein and reasonably acceptable to the Purchaser and the Seller. Upon the earlier of (x) 2 business days prior to the end of the applicable tax year for any party, Purchaser Entity, Selling Entity or Transferred Entity and (y) the 30th day after the Required China Filing has been submitted if, by such date, the China Filing Approval has not been granted, the parties (1) shall jointly instruct the Escrow Agent to such effect). Subject return the Escrow Amount (less the Escrow Agent Fees) to the preceding sentencePurchaser and use reasonable best efforts to promptly cancel or reverse all actions taken to date in respect of the China Filing Approval pursuant to Section 7.01(g), and the Escrow Funds Closing shall be helddeemed to have not yet occurred; provided for the avoidance of doubt this Agreement shall otherwise continue in full force and effect in accordance with its terms and conditions, invested including Section 7.01(g), and distributed the parties shall continue to use their reasonable best efforts to consummate the Transactions in accordance with the terms and conditions hereof and (2) agree to cooperate to mitigate any Tax consequences of the Closing, including any deemed transfer of the Transferred Entities for Tax purposes and the return of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
Amount (b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to less the Escrow Agent Fees) to releasethe Purchaser, including by taking the actions described in accordance with Section 2.17(c)clause (1) of this sentence, from before the balance end of all relevant tax years and treating the Escrow Funds in the Escrow Accounttransaction as having been rescinded for Tax purposes where permitted under applicable Law. Prior to Closing, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, Seller and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the in good faith, acting reasonably, select an Escrow Agent to release, in accordance of national reputation and standing and negotiate a form of Escrow Agreement consistent with this Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability2.06.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Altra Industrial Motion Corp.)
Escrow Arrangement. (a) At any time prior to the obtaining of the NJBPU Approval and/or the FPSC Approval, the Borrower shall have an option to request, and the Agent and each Lender hereby agrees, subject to satisfaction of the conditions of Section 5(a) of this Agreement and Sections 2.6 and 6.3 of the Credit Agreement (determined as if Section 2 hereof had been given effect)(other than (x) the obtaining of the NJBPU Approval and the FPSC Approval, (y) the effectiveness of Section 2 hereof and Section 2 of Amendment No. 3 to the NUI Utilities Credit Agreement and (z) the extension of the Termination Date under each of the Credit Agreement and the NUI Utilities Credit Agreement), and receipt by the Agent of at least three Business Days prior written notice thereof, that each Lender shall make Additional Term Loans pursuant to Section 2.1; provided that (i) (A) the proceeds of the Additional Term Loans, (B) the funds to be deposited into the Interest Reserve Account pursuant to Section 2.6 and Section 6.3(v) of the Credit Agreement (determined as if Section 2 hereof had been given effect), (C) the Extension Fee under the Credit Agreement, (D) the Amendment Fee hereunder (but not the costs and expenses under Section 5(a)(iii) hereof), and (E) the Arrangement Fee (as such term is defined in the New Facilities Fee Letter) and all other fees then due and payable on the Additional Term Loans Closing Date pursuant to the New Facilities Fee Letter to be funded into an escrow account maintained by the Agent at The Significant Shareholder hereby covenants and agrees that the amount Bank of $3,000,000 New York (the “Initial "Escrow Amount”Account") and (ii) all invoiced reimbursable expenses of the Agent incurred on or prior to the date of such funding (including without limitation the reasonable fees and disbursements of the Agent's special counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP) shall be automatically netted out paid by the Borrower prior to or substantially contemporaneously with funding the proceeds of the portion Additional Term Loans into the Escrow Account. All of such funds shall be automatically released on the date when the Agent receives the evidence satisfactory to the Agent that the NJBPU Approval and the FPSC Approval have been obtained, in each case, in form and substance reasonably satisfactory to the Agent and Section 2 of Amendment No. 3 and Section 2 of Amendment No. 3 to the NUI Utilities Credit Agreement shall have become effective (regardless of whether the other conditions set forth in Sections 6.1 and 6.3 of the Closing Merger Consideration payable Credit Agreement could be met at such time) to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at respective payees as follows: (x) the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to receive, for the Purchaser in account of each Lender, an amount equal to the income Tax liability sum of Purchaser on such income or gainthe fees specified in clauses (C) and (D) above, using the tax rate to which such income or gain was subject as determined by the Purchaser (with y) CSFB shall receive, for its own account, an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments aggregate amount equal to the Significant Shareholder Arrangement Fee and all other fees and expenses then due and payable pursuant hereto or the New Facilities Fee Letter, and (z) the Borrower shall receive the remainder of any the funds in the Escrow FundsAccount. For the avoidance of doubt, (i) (the interest on the Additional Term Loans shall start to accrue and the Purchaser and the Holders’ Agent shall give instructions be payable to the Lenders from the date of funding of the proceeds of the Additional Term Loans into the Escrow Agent to Account, and (ii) funds in the Escrow Account shall bear interest from such effect). Subject date and such interest shall be paid to the preceding sentenceBorrower on the date when such funds are released or returned, as the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b)case may be.
(b) Subject Notwithstanding the foregoing, if funds held in the Escrow Account are not released on or prior to Section 2.17(eSeptember 30, 2004 (due to the failure to obtain the NJBPU Approval or the FPSC Approval), then (i) on the fifth Business Day following each occurrence provisions of a Tax ResolutionSection 2 hereof shall be null and void, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and Borrower shall then owe a fee (the Holders’ Agent shall deliver joint written instructions "Release Fee") to the Escrow Agent to release, Lenders in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the an aggregate amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to amount of interest which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), would have accrued on the tenth Business Day following Additional Term Loans from the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matterescrowed through September 30, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder 2004, (iii) all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances funds held in the Escrow Account shall be made net distributed on September 30, 2004 as follows:
(A) the Agent shall receive for the account of any losses on investments on balances each Lender an aggregate amount equal to the proceeds of the Additional Term Loans and the Release Fee, and (B) the Borrower shall receive the remainder of the funds, if any, in the Escrow Account, pursuant ; provided that in the event that the funds held in the Escrow Account are not sufficient to make the distribution set forth in clause (iii)(A) above the Borrower shall pay to the applicable Agent for the account of each Lender the amount of such deficiency, and (iv) the compensation, reimbursement and indemnification provisions contained in the Commitment Letter dated as of July 14, 2004, among the Escrow AgreementBorrower, NUI Utilities and CSFB and in the New Facilities Fee Letter shall be reinstated and in full force and effect on and from the date thereof.
Appears in 1 contract
Sources: Credit Agreement (Nui Corp /Nj/)
Escrow Arrangement. (a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at At the Closing, Buyer and the Seller shall enter into a separate, interest-bearing escrow account (the “an Escrow Account”) Agreement with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially Agent in the form attached hereto as Exhibit L C, pursuant to which, among other things, Buyer shall deposit an amount in cash equal to the Escrow Amount in order to (i) provide Buyer with a source of funds for satisfaction of any amounts owing to Buyer resulting from any adjustment to the amount of the Purchase Price in connection with the Excess Amount, (ii) provide Buyer with a source of funds for satisfaction of any amounts owing from the Seller to the Buyer resulting from Damages required to be indemnified by the Seller under Section 6 of this Agreement (the “Escrow AgreementAccount”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), All parties hereto agree for all Tax purposes that: (i) on Buyer shall be treated as the fifth Business Day following each occurrence owner of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, and all interest and earnings earned from the amount required to be paid pursuant to the Tax Resolution up to the remaining balance investment and reinvestment of the Escrow FundsAmount, if any, or any portion thereof, shall be allocable for income Tax purposes to Buyer pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8, (ii) if and to the extent any amount in the Escrow Account is actually distributed to or on behalf of the Seller (or deemed distributed to or on behalf of the Seller under applicable Law), interest may be imputed on such amount payable (or deemed payable) to the Seller, as required by Section 483 or 1274 of the Code, and (iiiii) in no event shall the Purchaser and aggregate payments under the Holders’ Agent shall deliver joint written instructions Escrow Agreement to the Seller from the Escrow Account exceed the sum of the Escrow Amount. Clause (iii) of the preceding sentence is intended to ensure that the right of the Seller to the Escrow Agent to releaseAmount and any interest and earnings earned thereon is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and the Treasury Regulations promulgated thereunder. No party hereto shall take any action or filing position inconsistent with the foregoing, in accordance with Section 2.17(c), any amounts requested except as required by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liabilityLaw.
(c) If In addition, Buyer shall deliver to Escrow Agent a stock certificate evidencing the amount Stock Holdback Amount which shall constitute additional consideration to be released pursuant to Section 2.17(bearned by the Seller, in accordance with the future performance milestones (the “Holdback Milestones”) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.set forth in Schedule B.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions Distributions from the Escrow Account of dividendsto the Seller or Buyer, interestas applicable, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances as provided in the Escrow Account, pursuant to the applicable provisions of this Agreement and the Escrow Agreement.
Appears in 1 contract
Escrow Arrangement. The Parties shall enter into an Escrow Agreement which shall, inter alia, set out the following provisions:
a) mechanism to deposit all Toll Revenues (on the succeeding working day of such collection) and the mechanism for distribution of respective share of such revenues to the Concessionaire and the Authority;
b) right for the Authority and the Concessionaire to set-off and make direct deductions of any amounts in case any amount contractually payable by the Concessionaire or the Authority which have not been paid by the same including payments for the Independent Engineer and Independent Auditor;
c) Authority’s ability (with the confirmation of the Independent Auditor) to determine the amounts of Insurance proceeds (to the extent they are deposited in the Escrow Account) and other compensations received by the Concessionaire and to make adjustments in the amounts of Termination Payments payable by the Authority, provided however, the Authority’s rights in relation to Insurance proceeds shall be subordinated to Financiers;
d) the mechanism for the disbursement of funds from the Escrow Account to fund the Major Maintenance Payment Account; and
e) any other rights and matters contemplated by the Authority (in consultation with the Independent Engineer and the Independent Auditor) which it believes are reasonable and necessary for the transactions of this nature and deductions as determined with the Independent Engineer and the Independent Auditor. [Escrow Account may have a lien over it in favour of Financiers, if the same is required. Conditions relating to the same shall be incorporated in the Concession Direct Agreement].
18. DEFECTS & DEFICIENCIES, NOTICE OF REMEDY, SUSPENSION 18.1 REMEDYING DEFECTS & DEFICIENCIES
18.1.1 The Concessionaire warrants that the:
(a) The Significant Shareholder hereby covenants and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”) Project Works shall be automatically netted out of the portion of the Closing Merger Consideration payable to the Significant Shareholder pursuant to this Agreement and deposited by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant to the terms of the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially performed in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed good workmen like manner in accordance with the terms of the Escrow Agreement Applicable Standards and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).shall be free from all Defects & Deficiencies; and
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax ResolutionConcession Assets shall comply with the Applicable Standards.
18.1.2 In order that the Project Works and the Concession Assets comply with the foregoing warranties and that the same are in the condition required by this Agreement, the Purchaser Concessionaire shall execute all works and services relating to amendment, reconstruction and remedying of Defects & Deficiencies (including the Holders’ Agent removal, replacement and reinstallation of materials and equipment, remedying of Defects & Deficiencies and retesting of repaired or replaced portions of the Project Works (if appropriate in accordance with Good Industry Practices) at its own cost, risk and expense; provided, however the amendment, reconstruction and remedying of such Defects & Deficiencies shall deliver joint written instructions be at the cost, risk and expense of the Authority in the event the same is caused by a Permitted Events (except a Non Political Event).
18.1.3 If the remedying of any Defect & Deficiency or damage is such that it may significantly affect the performance of the Project Works and/or the Concession Assets, the Independent Engineer and/or the Authority may require that certain Construction Tests, O&M Tests and/or the Completion Tests (as the case may be) to be repeated to the Escrow Agent to release, extent necessary. The requirement shall be made by written Notice after the Defect & Deficiency or damage is remedied. Such tests shall be carried out by the Concessionaire in accordance with the Applicable Standards and all costs and expenses of any nature associated with re- performance of such tests shall be allocated in accordance with Section 2.17(c), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability18.1.2.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreement.
Appears in 1 contract
Sources: Concession Agreement
Escrow Arrangement. To the extent the conditions to the obligations of the Parties to effect the Closing (aother than conditions with respect to actions the respective Parties will take at the Closing itself) The Significant are not reasonably expected to be satisfied or waived by the time of the First Shareholder hereby covenants Loan Disbursement (other than as a result of any failure on the part of any of the ITI Parties to fully comply with its obligations under this Agreement), then ITI, N-Vision and agrees that SBS shall promptly enter into an escrow arrangement mutually acceptable to ITI and SBS pursuant to which the amount of $3,000,000 Parties shall appoint a first-class financial institution with an office in London, England to act as escrow agent for N-Vision (the “Initial "Escrow Amount”Agent") and ITI shall be automatically netted out of the portion of the Closing Merger Consideration payable cause N-Vision to the Significant Shareholder pursuant (i) irrevocably instruct TVN to this Agreement and deposited by Purchaser, at the Closing, into a separate, promptly pay to an interest-bearing escrow account maintained at the Escrow Agent (the “"Escrow Account”") with JPMorgan Chase Bank, N.A. the first US $11,000,000 of TVN Affiliate Debt (the “"Escrow Agent”), established pursuant to the terms Funds") by wire transfer of the Escrow Agreement, among immediately available US Dollar funds and (ii) irrevocably instruct the Escrow Agent, upon receipt of written confirmation from SBS (or its legal counsel) that SBS is ready to cause Seller to execute and deliver the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions to the Escrow Agent to such effect). Subject to the preceding sentence, the Escrow Funds shall be held, invested and distributed in accordance with the terms of the Escrow Share Transfer Agreement and in accordance with this Article II, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e), (i) on the fifth Business Day following each occurrence of a Tax Resolution, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c)2.5(i) above, from the balance to promptly release, transfer and deliver (by wire transfer of immediately available US Dollar funds) the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to account designated in writing by SBS, together with any and all interest accrued thereon through and including the remaining balance of the Escrow FundsClosing Date; provided that, and (ii) the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent shall be permitted to release, release the Escrow Funds to N-Vision if this Agreement is terminated in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions 7.1 of the Purchaser this Agreement. The costs and the Holders’ Agent shall direct expenses of the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully set forth in the Escrow Agreement, distributions from the Escrow Account of dividends, interest, and other income on balances in the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of the Escrow Agreementborne by ITI.
Appears in 1 contract
Escrow Arrangement. 3.3.1 The Escrow Amount is intended for the settling of Claims. If the Purchaser presents a Claim to the Sellers during the Holdback Period, the Purchaser shall also inform the Escrow Agent of the amount of the Claim (the “Claim Amount”).
3.3.2 At the expiration of the Holdback Period, the Escrow Agent shall automatically pay the Escrow Amount less (a) The Significant Shareholder hereby covenants any Claim Amounts previously paid to Indemnified Parties and agrees that the amount of $3,000,000 (the “Initial Escrow Amount”b) shall be automatically netted out of the portion of the Closing Merger Consideration payable any accrued and outstanding Claim Amount(s) as at such date to the Significant Shareholder pursuant to this Agreement and deposited Sellers by Purchaser, at the Closing, into a separate, interest-bearing escrow account (the “Escrow Account”) with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), established pursuant payment to the terms client funds account of Counsel specified in the Escrow Agreement, among the Escrow Agent, the Holders’ Agent, and Purchaser, substantially in the form attached hereto as Exhibit L (the “Escrow Agreement”). The Purchaser shall pay all Taxes owed in respect of any net income or gain realized by the Escrow Account on a current basis. The Escrow Agent shall distribute cash to the Purchaser in an amount equal to the income Tax liability of Purchaser on such income or gain, using the tax rate to which such income or gain was subject as determined by the Purchaser (with an appropriate reduction in such tax rate attributable to imputed interest expense deductions reasonably expected to be realized by the Purchaser in respect of current and future payments to the Significant Shareholder of any Escrow Funds) (and the Purchaser and the Holders’ Agent shall give instructions Agreement unless some other account has been notified to the Escrow Agent to such effect). Subject by Investor Seller and the Sellers’ Representative prior to the preceding sentence, eighteen (18) month anniversary of the Escrow Funds shall be held, invested and distributed Closing Date.
3.3.3 If the Purchaser does not initiate arbitration proceedings with respect to the Claim(s) referred to in Section 3.3.2 in accordance with the terms arbitration provisions of Section 10.12.2 within 180 calendar days after the end of the Escrow Agreement and in accordance with this Article IIHoldback Period, Section 6.5(g) and Section 9.6(b).
(b) Subject to Section 2.17(e)or if the amount of the Loss that is at issue is not reasonably ascertainable at the end of the Holdback Period, within 180 calendar days after such amount is ascertained or reasonably ascertainable, then (i) on as regards any Claims for breach of the fifth Business Day following each occurrence of a Tax ResolutionNormal Warranties, the Purchaser and the Holders’ Agent Sellers shall deliver joint written instructions to the Escrow Agent to release, in accordance have no further liability with Section 2.17(crespect such Claim(s), from the balance of the Escrow Funds in the Escrow Account, the amount required to be paid pursuant to the Tax Resolution up to the remaining balance of the Escrow Funds, ; and (ii) as regards any other Claims, the Purchaser’s right to be compensated for such Claim(s) from the Escrow Amount shall be deemed to have been irrevocably withdrawn, however, without limiting any other rights the Purchaser and may have under this Agreement.
3.3.4 At any time after the Holders’ Agent shall deliver joint written instructions expiry of the Holdback Period, upon resolution by the arbitral tribunal of all issues referred to it for resolution or agreement between the Parties, the Escrow Agent to releaseshall, in accordance with Section 2.17(c), any amounts requested by the Holders’ Agent to be paid to the applicable Taxing Authority to reduce the outstanding liability for any Covered Tax Matter, provided that such request is supported by written documentation substantiating that the amounts so requested will reduce such liability.
(c) If the amount to be released pursuant to Section 2.17(b) is less than or equal to the liability for the Covered Tax Matter to which such released funds relate, the joint written payment instructions of the Purchaser and the Holders’ Agent shall direct the Escrow Agent to pay the released Escrow Funds directly to the Company for remittance to the applicable Taxing Authority.
(d) Subject to Section 2.17(e), on the tenth Business Day following the date of the occurrence of a Tax Resolution with respect to the last unresolved Covered Tax Matter, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release to the Significant Shareholder all of the Escrow Funds then remaining in the Escrow Account in excess of any Escrow Funds required to obtain such Tax Resolution.
(e) If Tax Resolutions with respect to all Covered Tax Matters have not been obtained by the date which is 24 months from the Closing Date, the Purchaser and the Holders’ Agent shall deliver joint written instructions to the Escrow Agent to release, in accordance with Section 2.17(c) and, if the application of Section 2.17(c) would result in a Tax Resolution of all Covered Tax Matters, Section 2.17(d), all of the Escrow Funds then remaining in the Escrow Account.
(f) At least five (5) Business Days prior to any correspondence, drafts, applications or any other written documents (collectively, “correspondence”) being submitted by any holder of Company Common Stock to a Taxing Authority with respect to a Covered Tax Matter, the Significant Shareholder shall provide a draft of any such correspondence to the Purchaser for its review and consent, such consent not to be unreasonably withheld, delayed or conditioned. The Significant Shareholder shall provide to the Purchaser a copy of all correspondence or any other documentation received from a Taxing Authority with respect to a Covered Tax Matter promptly upon receipt of such correspondence or other documentation.
(g) As more fully as set forth in the Escrow Agreement, distributions pay (i) to the Purchaser from the Escrow Account of dividendsthe amount, interestif any, that the arbitral tribunal has determined the Purchaser to be entitled to or that the Parties have agreed upon, and other income on balances (ii) pay to the Sellers (in accordance with Section 3.3.2) the remaining Escrow Amount, if any, and the Parties shall instruct the Escrow Agent accordingly.
3.3.5 The Parties undertake promptly to execute all necessary documents that the Escrow Agent requires to be executed in order to release the Escrow Amount (or part thereof) from the Escrow Account shall be made net of any losses on investments on balances in the Escrow Account, pursuant to the applicable provisions of accordance with this Agreement and the Escrow Agreement.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Silicon Laboratories Inc)