Common use of Release of Escrow Amount Clause in Contracts

Release of Escrow Amount. If the Escrow Agent receives a certificate (or any number of counterparts thereof) signed by both an officer of Parent and Executives’ Representative directing the Escrow Agent as to distribution of all or any part of the Escrow Amount, the Escrow Agent shall immediately distribute such part from the Escrow Amount (including any interest thereon) as directed in such certificate. (a) On the twentieth business day after receipt by the Escrow Agent of a certificate signed by an officer of Parent (an “Officer’s Certificate”) (i) stating that Escrow Agent is obligated to make a payment to Parent or Executives (“Payment”) and (ii) specifying the amount of such Payment, the Escrow Agent shall, subject to the provisions of Section 5 hereof, distribute to Parent or Executives (with respect to each Executive, as directed in the Officer’s Certificate) from the funds then held in the Escrow Account an amount (and interest thereon) equal to the Payment as stated in such Officer’s Certificate. (b) If the Escrow Agent does not receive an Officer’s Certificate on or before the 30th day after the Determination Date with respect to any Threshold Test, the Escrow Agent shall distribute from the funds then held in the Escrow Account an amount (and interest thereon) equal to the Threshold Amount corresponding to such Threshold Test to the Executives pro rata based on contributions to the Escrow Fund with respect to such executive for such Threshold Test as set forth on Exhibit F to the Merger Agreement. (c) If any funds remain on deposit with the Escrow Agent hereunder on [insert date 9 months from the Appointment Time] the Escrow Agent shall deliver such Funds to Parent; provided, however, that if a dispute between the parties hereto with respect to any portion of the Escrow Amount is pending, such funds shall remain on deposit with the Escrow Agent hereunder until such dispute is resolved in accordance with the provisions of Section 5 hereof.

Release of Escrow Amount. If The Escrow Agent shall hold and release the Escrow Amount only in accordance with the terms and conditions of this Agreement. The Escrow Agent receives a certificate (or any number of counterparts thereof) signed by both an officer of Parent shall distribute and Executives’ Representative directing release the Escrow Agent Amount as to distribution follows: (a) Following 60 days from the date of all or any part of the Escrow Amountthis Agreement, the Escrow Agent shall immediately distribute such part from deliver the Escrow Amount (including to the Seller in accordance with the instructions on Exhibit B, unless the Buyer provides the Seller and the Escrow Agent that claims have been made or are being made with respect to an alleged breach of the Seller’s representations and warranties or a failure by the Seller to comply with any interest thereon) as directed in such certificatecovenants under the SPA. (ab) On The Escrow Agent shall be entitled to rely upon written instructions jointly executed by the twentieth business day after Buyer and the Seller confirming evidence of delivery. (c) All funds to be delivered to the Seller be shall be delivered pursuant to the wire instructions to be provided in writing by the Seller to the Escrow Agent. The Escrow Agent shall rely upon the telephone number provided in this Agreement in seeking to orally confirm the wire transfer instructions. (d) Notwithstanding any other provision in this Agreement to the contrary, upon receipt by the Escrow Agent of a certificate signed by an officer final and non-appealable judgment, order, decree or award of Parent a court of competent jurisdiction (an a “Officer’s CertificateCourt Order”) (i) stating that Escrow Agent is obligated to make a payment to Parent or Executives (“Payment”) and (ii) specifying the amount of such Payment, the Escrow Agent shall, subject to the provisions of Section 5 hereof, distribute to Parent or Executives (with respect to each Executive, as directed in the Officer’s Certificate) from the funds then held in the Escrow Account an amount (and interest thereon) equal to the Payment as stated in such Officer’s Certificate. (b) If the Escrow Agent does not receive an Officer’s Certificate on or before the 30th day after the Determination Date with respect to any Threshold Test), the Escrow Agent shall distribute from the funds then held in deliver the Escrow Account an amount Amount (or any portion thereof) in accordance with the Court Order. (e) The Buyer and interest thereon) equal to the Threshold Amount corresponding to such Threshold Test to Seller acknowledge that the Executives pro rata based on contributions to only terms and conditions upon which the Escrow Fund Amount is to be released are set forth in Section 2 of this Agreement. The Buyer and the Seller reaffirm their agreement to abide by the terms and conditions of this Agreement with respect to such executive for such Threshold Test as set forth on Exhibit F to the Merger Agreement. (c) If any funds remain on deposit with release of the Escrow Agent hereunder on [insert date 9 months from the Appointment Time] the Escrow Agent shall deliver such Funds to Parent; provided, however, that if a Amount. Any dispute between the parties hereto with respect to any portion the release of the Escrow Amount is pending, such funds shall remain on deposit with the Escrow Agent hereunder until such dispute is be resolved in accordance with the provisions of pursuant to Section 5 hereofor by written agreement between the Buyer, the Seller and the Broker.

Release of Escrow Amount. If on the date of closing of the Offerings (as more fully described in the Registration Statement) the Escrow Agent receives has received from the Company and Centennial a certificate stating that the Company has received subscriptions or purchase orders for at least 680,000 Shares and that the Offerings have closed, then the Escrow Agent: (or any number of counterparts thereofa) signed is authorized and instructed to pay to the Company the Escrow Amount held by both an officer of Parent and Executives’ Representative directing the Escrow Agent as in the Escrow Account, less those amounts specified in subsections (b) through (e) below; (b) shall, upon receipt of the written confirmation from Centennial or the Company set forth in, and otherwise in accordance with, Section VII, distribute to distribution of all or any part purchasers in the Subscription Offering and the Community Offering out of the Escrow AmountAmount deposited amounts with respect to stock orders which the 3 Company has rejected in accordance with Section IV, or to subscribers in the Escrow Agent event of an oversubscription in the Subscription Offering in accordance with instructions provided by the Company and Centennial; (c) shall immediately distribute such part be entitled to retain amounts from the Escrow Amount (including any interest thereon) as directed in such certificate.owing to it pursuant to Section XI; (ad) On the twentieth business day after shall, subject to receipt by the Escrow Agent of a certificate written confirmation signed by an officer both Centennial and the Company as to the agreed amount due, pay to Centennial out of Parent (an “Officer’s Certificate”) (i) stating that Escrow Agent is obligated to make a payment to Parent or Executives (“Payment”) and (ii) specifying the amount of such Payment, the Escrow Amount an amount equal to Centennial's fees as the Sales Agent for the offering as described in the Registration Statement and a Sales Agent Agreement between Centennial and the Company; and (e) shall, subject to receipt by the provisions Escrow Agent of a written confirmation signed by both Centennial and the Company as to the agreed amount due, pay to Centennial's counsel such amounts as agreed as the fees due to be paid to Centennial's counsel pursuant to the Sales Agent Agreement. The Escrow Agent shall not be required to interpret the Sales Agent Agreement, the Registration Statement or any other agreement as to the proper amounts due to be paid under (d) and (e) above, but shall rely solely upon the written confirmations described therein. The Escrow Agents obligation to make distributions under this Section 5 hereof, distribute is limited to Parent or Executives (with respect to each Executive, as directed in the Officer’s Certificate) from the funds then held actual amounts on deposit in the Escrow Account an amount (and interest thereon) equal to the Payment as stated in such Officer’s CertificateAccount. (b) If the Escrow Agent does not receive an Officer’s Certificate on or before the 30th day after the Determination Date with respect to any Threshold Test, the Escrow Agent shall distribute from the funds then held in the Escrow Account an amount (and interest thereon) equal to the Threshold Amount corresponding to such Threshold Test to the Executives pro rata based on contributions to the Escrow Fund with respect to such executive for such Threshold Test as set forth on Exhibit F to the Merger Agreement. (c) If any funds remain on deposit with the Escrow Agent hereunder on [insert date 9 months from the Appointment Time] the Escrow Agent shall deliver such Funds to Parent; provided, however, that if a dispute between the parties hereto with respect to any portion of the Escrow Amount is pending, such funds shall remain on deposit with the Escrow Agent hereunder until such dispute is resolved in accordance with the provisions of Section 5 hereof.

Release of Escrow Amount. If the Escrow Agent receives a certificate (or any number of counterparts thereofa) signed by both an officer of Parent and Executives’ Representative directing the Escrow Agent as to distribution of all or any part Any portion of the Escrow AmountAmount not previously released to, the Escrow Agent or permitted to be retained by, Acquiror as a result of an indemnification claim by Acquiror shall immediately distribute such part from the Escrow Amount (including any interest thereon) as directed in such certificate. (a) On the twentieth business day after receipt by the Escrow Agent of a certificate signed by an officer of Parent (an “Officer’s Certificate”) (i) stating that Escrow Agent is obligated to make a payment to Parent or Executives (“Payment”) and (ii) specifying the amount of such Payment, the Escrow Agent shall, subject be released to the provisions of Section 5 hereof, distribute to Parent or Executives (with respect to each Executive, as directed in Series D Holders and Target Retention Bonus Plan Participants on the Officer’s Certificate) from the funds then held in the Escrow Account an amount (and interest thereon) equal to the Payment as stated in such Officer’s Certificate. (b) If the Escrow Agent does not receive an Officer’s Certificate on or before the 30th day after the Determination Release Date with respect to any Threshold Test, the Escrow Agent shall distribute from the funds then held in the Escrow Account an amount (and interest thereon) equal to the Threshold Amount corresponding to such Threshold Test to the Executives pro rata based on contributions pursuant to the Escrow Fund with respect to such executive for such Threshold Test as set forth on Exhibit F to the Merger Agreement. (c) If any funds remain on deposit with the Escrow Agent hereunder on [insert date 9 months from the Appointment Time] the Escrow Agent shall deliver such Funds to Parent; provided, however, that if a dispute between portion of the parties hereto Indemnity Escrow Amount, which is reasonably necessary (as determined in accordance with Section 9.3) to satisfy any unsatisfied claims specified in any Officer’s Certificate (as defined in Section 9.3) theretofore delivered to the Stockholders’ Agent prior to the Escrow Termination Date with respect to facts and circumstances existing on or prior to the Escrow Termination Date, shall remain in the Indemnity Escrow Fund until such claims have been resolved. (b) On the Release Date, pursuant to the Escrow Agreement, the Escrow Agent shall release; (i) to the Series D Holders (through the Payment Agent) their Pro Rata Portion of ninety percent (90%) of the relevant Escrow Amount, less with respect to each such Series D Holder a portion of the Indemnity Escrow Amount with a value (as determined pursuant to Section 9.3) equal to the sum of (1) such Series D Holder’s Pro Rata Portion of ninety percent (90%) the relevant Escrow Amount previously released to Acquiror in accordance with Section 9.3; and (2) in the case of the Indemnity Escrow Amount, such Stockholder’s Pro Rata Portion of ninety percent (90%) of the Indemnity Escrow Amount that shall remain in the Indemnity Escrow Fund in accordance with the foregoing Subsection (a) of this Section 9.1 with respect to any pending but unresolved indemnification claims of Acquiror. (ii) to the Target Retention Bonus Plan Participants (through the Payment Agent) their Pro Rata Portion of ten percent (10%) of the relevant Escrow Amount, less with respect to each such Target Retention Bonus Plan Participant a portion of the Indemnity Escrow Amount with a value (as determined pursuant to Section 9.3) equal to the sum of (1) such Target Retention Bonus Plan Participant’s Pro Rata Portion of ten percent (10%) the Escrow Amount previously released to Acquiror in accordance with Section 9.3; and (2) in the case of the Indemnity Escrow Amount, such Target Retention Bonus Plan Participant’s Pro Rata Portion of ten percent (10%) of the Indemnity Escrow Amount that shall remain in the Indemnity Escrow Fund in accordance with the foregoing Subsection (a) of this Section 9.1 with respect to any pending but unresolved indemnification claims of Acquiror. Any portion of the Escrow Amount is pendingheld as a result of clauses (i)(2) or (ii)(2) shall be released to the Series D Holders and the Target Retention Bonus Plan Participants, such funds shall remain on deposit with the Escrow Agent hereunder until such dispute is resolved in accordance with one hand, or released to Acquiror, on the provisions other hand (as appropriate) promptly upon resolution of Section 5 hereofeach specific indemnification claim involved.

Release of Escrow Amount. If (a) On each occasion on which Parent determines that any Indemnified Person may be entitled to indemnification for any amount pursuant to Article VII of the Merger Agreement (whether or not the Basket has been exceeded), Parent shall deliver to the Representative and the Escrow Agent receives a certificate notice specifying in reasonable detail the nature and dollar amount of any claim that any Indemnified Person may have under Article VII of the Merger Agreement (or any number a "Claim Certificate") for the payment of counterparts thereofsuch amount. (b) signed Within thirty (30) days after receipt by both an officer the Representative of a Claim Certificate, the Representative may deliver to Parent and Executives’ Representative directing the Escrow Agent as a written objection to distribution of all or any part of the Claim Certificate (an "Objection"). The Objection shall set forth in reasonable detail the basis of the Representative's objection to the Claim Certificate and the amount in dispute. (c) If the Representative fails to deliver an Objection to Parent and the Escrow AmountAgent by 5:00 p.m. Eastern Time on the thirtieth (30th) day following the receipt by the Representative of a Claim Certificate, the Escrow Agent shall immediately distribute such part from pay to the Indemnified Persons out of the Escrow Amount an amount equal to the amount requested in the Claim Certificate (including up to a maximum of the Escrow Amount). Any such payment shall be made on or before the second (2nd) Business Day following the expiration of such thirty (30) day period. The Escrow Agent shall continue to hold any interest thereon) as directed amounts remaining in such certificatethe Escrow Account following the payment of any Claim Certificate in accordance with the terms of this Agreement. (ad) On If the twentieth business day after Representative delivers a timely Objection with respect to all or any portion of a Claim Certificate, the Escrow Agent shall not disburse, and shall continue to hold in the Escrow Account, the amount requested in the Claim Certificate or the disputed portion thereof, as the case may be, pending receipt of either (i) payment instructions signed by Parent and the Representative, specifying the agreement of the parties as to the action to be taken by the Escrow Agent in respect of such Claim Certificate ("Joint Payment Instructions") or (ii) a notice from either Parent or the Representative stating that either such Claim Certificate has been submitted to a court of competent jurisdiction for judgment and that a judgment with respect to such matters has been rendered or such Claim Certificate has been submitted to a panel of arbitrators with proper jurisdiction and that a final non-appealable award with respect to such arbitration has been rendered (in each case, a "Judgment Notice") which is accompanied by a copy of a final, nonappealable order of such court or such arbitration panel, as the case may be (each an "Order"), pursuant to which such court has determined whether and to what extent the Indemnified Persons are entitled to the amount requested in the Claim Certificate. Upon receipt of Joint Payment Instructions or a Judgment Notice, as applicable, the Escrow Agent shall thereafter act in accordance with Section 3(e) or 3(f) below, as applicable. A copy of the Judgment Notice or Order shall be delivered to each party at the same time as it is delivered to the Escrow Agent. (e) Upon receipt by the Escrow Agent of Joint Payment Instructions, if such Joint Payment Instructions indicate that any Indemnified Persons are entitled to payment in respect of all or any portion of the Claim Certificate, then the Escrow Agent shall release from the Escrow Account and pay to the Indemnified Persons the amount indicated in such Joint Payment Instructions (up to a certificate signed maximum of the Escrow Amount). Such payment shall be made on or before the second (2nd) Business Day following the date on which such Joint Payment Instructions are received by the Escrow Agent. If such Joint Payment Instructions indicate that the Indemnified Persons are not entitled to all or any portion of the amount claimed in such Claim Certificate (a "Discharge Notice"), then the Escrow Agent shall continue to hold such amount in the Escrow Account in accordance with the terms of this Agreement until such amounts are to be disbursed (A) to the Former Stockholders pursuant to Sections 3(h), 3(i) or 3(j) or 3(k), (B) to any Indemnified Persons in respect of another Claim Certificate pursuant to Sections 3(c), 3(e) or 3(f) or (C) to any Person pursuant to Section 3(k). (f) If the Escrow Agent has received a Judgment Notice and an officer Order with respect to any Claim Certificate, then the Escrow Agent shall release from the Escrow Account and pay to the Indemnified Persons an amount equal to the amount due the Indemnified Persons. Such payment shall be made on or before the second (2nd) Business Day following the date on which the Escrow Agent received such Order. If such Order indicates that the Indemnified Persons were not entitled to all or any portion of the amount claimed in the Claim Certificate (a "Determination Discharge"), then the Escrow Agent shall continue to hold such amount to which the Indemnified Persons were determined not to be entitled in accordance with the terms of this Agreement until such amounts are to be disbursed (A) to the Former Stockholders pursuant to Sections 3(h), 3(i), 3(j) or 3(k), (B) to any Indemnified Persons in respect of another Claim Certificate pursuant to Sections 3(c), 3(e) or 3(f) or (C) to any Person pursuant to Section 3(k). (g) As promptly as practicable following the disbursement of any funds from the Escrow Account, the Escrow Agent shall send a written statement to the Representative and Parent stating the amount of the disbursement and the amounts remaining in the Escrow Account. (an “Officer’s Certificate”h) January 31, 2007 is referred to herein as the "Initial Reduction Date". On the Initial Reduction Date, the Escrow Amount shall automatically be reduced by the excess of the Escrow Amount on hand on the Initial Reduction Date over the sum of (i) stating that Escrow Agent is obligated to make a payment to Parent or Executives (“Payment”) and $7,950,000 plus (ii) specifying the Pending and Paid Claims Amount (as defined below) (the amount of such Paymentdistribution, together with any share of interest and other earnings on the Escrow Amount as provided below, being referred to as the "Initial Escrow Disbursement"). On or before the third (3rd) Business Day following the receipt of Joint Written Instructions by the Escrow Agent shallnotifying the Escrow Agent of the Initial Reduction Date, subject to the provisions of Section 5 hereof, distribute to Parent or Executives (with respect to each Executive, as directed in the Officer’s Certificate) from the funds then held in the Escrow Account an amount (and interest thereon) equal to the Payment as stated in such Officer’s Certificate. (b) If the Escrow Agent does not receive an Officer’s Certificate on or before the 30th day after the Determination Date with respect to any Threshold Testfollowing sentence, the Escrow Agent shall distribute from pay to the funds then Former Stockholders the Initial Escrow Disbursement. For purposes of this Section 3(h), the "Pending and Paid Claims Amount" shall equal the sum of (x) the amounts theretofore paid to Parent, plus (y) the amount of claims evidenced by Claim Certificates submitted prior to the Initial Reduction Date and which have not been paid in accordance with Section 3(c) as of the Initial Reduction Date and as to which, as of the Initial Reduction Date, the Escrow Agent has not received and fully acted upon Joint Payment Instructions or an Order, nor received a Discharge Notice or a Determination Discharge (any such Claim Certificate(s) being referred to as an "Initial Outstanding Claim(s)"). The Initial Escrow Disbursement shall also include a share of the earnings and interest earned on the Escrow Amount through the Initial Reduction Date, and after deducting any expenses of the Escrow Agent hereunder, determined by multiplying such amount by a fraction, the numerator of which is the amount of the Initial Escrow Disbursement and the denominator of which is $19,875,000. The balance of the Escrow Amount shall be held in the Escrow Account an amount (and interest thereon) equal escrow to the Threshold Amount corresponding fund claims for indemnification by any Indemnified Person pursuant to such Threshold Test to the Executives pro rata based on contributions to the Escrow Fund with respect to such executive for such Threshold Test as set forth on Exhibit F to Article VII of the Merger Agreement. (ci) If April 30, 2007 is referred to herein as the "Second Reduction Date". On the Second Reduction Date, the Escrow Amount shall automatically be reduced by the excess of the Escrow Amount on hand on the Second Reduction Date over the sum of (i) $3,975,000, plus (ii) the Pending and Paid Claims Amount (as defined below) (the amount of such distribution, together with any funds remain share of interest and other earnings on deposit with the Escrow Amount as provided below, being referred to as the "Second Escrow Disbursement"). On or before the third (3rd) Business Day following the receipt of Joint Written Instructions by the Escrow Agent hereunder on [insert date 9 months from notifying the Appointment Time] Escrow Agent of the Second Reduction Date, the Escrow Agent shall deliver pay to the Former Stockholders the Second Escrow Disbursement. For purposes of this Section 3(i), the Pending and Paid Claims Amount shall equal the sum of (x) the amounts theretofore paid to the Parent, plus (y) the amount of claims evidenced by Claim Certificates submitted prior to the Second Reduction Date and which have not been paid in accordance with Section 3(c) as of the Second Reduction Date and as to which, as of the Second Reduction Date, the Escrow Agent has not received and fully acted upon Joint Payment Instructions or an Order, nor received a Discharge Notice or a Determination Discharge (any such Funds Claim Certificate(s) being referred to Parent; providedas an "Second Outstanding Claim(s)"). The Second Escrow Disbursement shall also include a share of the earnings and interest earned on the Escrow Amount through the Second Reduction Date, howeverand after deducting any expenses of the Escrow Agent hereunder, that if determined by multiplying such amount by a dispute between fraction, the parties hereto numerator of which is the amount of the Second Escrow Disbursement and the denominator of which is $19,875,000. The balance of the Escrow Amount shall be held in escrow to fund claims for indemnification by any Indemnified Person pursuant to Article VII of the Merger Agreement. (j) July 31, 2007 is referred to herein as the "Final Reduction Date". On or before the third (3rd) Business Day following the receipt of Joint Written Instructions by the Escrow Agent notifying the Escrow Agent of the Final Reduction Date, the Escrow Agent shall pay to the Former Stockholders an amount equal to the then remaining balance of the Escrow Amount, including any interest or other earnings, reduced by the Pending Claims Amount (as defined below). For purposes of this Section 3(j), the Pending Claims Amount shall equal the amount of claims evidenced by Claim Certificates submitted prior to the Final Reduction Date and which have not been paid in accordance with respect Section 3(c) as of the Final Reduction Date and as to which, as of the Final Reduction Date, the Escrow Agent has not received and fully acted upon Joint Payment Instructions or an Order, nor received a Discharge Notice or a Determination Discharge (any such Claim Certificate(s) being referred to as "Final Outstanding Claim(s)"). The Escrow Agent shall retain and continue to hold in accordance with the terms hereof an amount equal to the amount requested in all such Final Outstanding Claims (all such amounts, together with any portion of the Escrow Retained Amount is pendingnot previously disbursed as provided in Section 3(i), such funds shall remain on deposit with the "Final Retained Amount"); and thereafter the Escrow Agent hereunder until shall release from the Escrow Account to Parent and/or Former Stockholders, as applicable, all or portions of the Final Retained Amount as and when it receives Joint Payment Instructions, Orders, Discharge Notices or Determination Discharges, as applicable, related to the Final Outstanding Claims. Following the Final Reduction Date, in the event that the Final Retained Amount at any time exceeds the amount of all Final Outstanding Claims which have not been paid to the Indemnified Parties or which are not subject to a Discharge Notice or Determination Discharge, the Escrow Agent shall pay to the Former Stockholders within three (3) Business Days of the Representative's written request for such dispute is resolved payment, an amount equal to such excess. (k) Notwithstanding the foregoing, if at any time the Escrow Agent shall receive Joint Written Instructions to release all or a portion of the Escrow Amount, then within three (3) Business Days after receipt of such Joint Written Instructions, the Escrow Agent shall release the Escrow Amount in accordance with such Joint Written Instructions. The parties will cooperate in good faith in executing such Joint Written Instructions whenever reasonably necessary to ensure distributions of escrowed funds to the provisions party entitled thereto under the terms of Section 5 hereofthe Merger Agreement. The date on which the entire Escrow Amount has been disbursed from the Escrow Account shall be referred to herein as the "Termination Date. (l) Any and all payments to be made to the Former Stockholders pursuant to this Agreement shall be allocated among the Former Stockholders in the percentages set forth next to the names of the Former Stockholders as set forth on Schedule 2. All payments to Former Stockholders shall be made by check made payable to the Former Stockholders in the name and mailed to the address of such Former Stockholders set forth on Schedule 2, or such updated or corrected address as may be provided by a Former Stockholder or the Representative.