Common use of Release of Escrow Amount Clause in Contracts

Release of Escrow Amount. The Escrow Amount in the then available amount shall be released to the respective Sellers in accordance with the provisions of the Escrow Agreement by the following amounts as follows: (i) an amount of USD 12,500,000 (in words twelve million five hundred thousand U.S. Dollars) shall be released on the date that is six months after the Closing Date (“Escrow Period I”), except for (i) any amounts being under negotiation or dispute pursuant to the procedure set forth below and (ii) any amounts already released to the Sellers or the Purchaser based on a mutual settlement or final and binding (rechtskräftig) decision of the competent court: Purchaser may provide Sellers’ Agent with a Purchaser Claim Notice or a Tax Claim Notice within the Escrow Period I in accordance with the provisions of Section 8.1 and Section 8.7. In this case the relevant Parties shall first attempt to negotiate a settlement of such claim. To the extent such settlement is not reached within 30 days after receipt of such notification by Sellers’ Agent, Purchaser shall have 60 additional days following the expiration of the foregoing 30-day period to file an action (Klageerhebung) against the relevant or all of the Seller(s). The action can be served on the Process Agent. For the avoidance of doubt it is clarified that Section 167 German Civil Procedure Code (Zivilprozessordnung, ZPO) shall apply. An amount equal to the amount in dispute (Streitwert) in such legal proceeding or, if such action is aimed at a declaratory judgement (Feststellungsklage), an amount equal to a reasonable estimate of Purchaser regarding the volume of the claim shall not be released until the legal proceeding has been decided, settled or dismissed in a final and binding manner (rechtskräftig), unless otherwise agreed between Sellers and Purchaser in writing. If Purchaser has not filed an action within the aforementioned 60-day period and the Escrow Period I has lapsed, the Sellers’ Agent and Purchaser shall instruct the Escrow Agent to release immediately to the Sellers the full USD 12,500,000 except for any amounts which have already been released or as otherwise agreed between the Parties; (ii) any remaining amount shall be released on December 31, 2008 (the period from the end of the Escrow Period I until December 31, 2008: “Escrow Period II”) except for (x) any amounts being under negotiation or dispute pursuant to the procedure set forth in lit. (i) above or this lit. (ii) below and (y) any amounts already released to the Sellers or the Purchaser based on a mutual settlement or final and binding (rechtskräftig) decision of the competent court: Purchaser may provide Sellers’ Agent with a Purchaser Claim Notice or a Tax Claim Notice within the Escrow Period II in accordance with the provisions of Section 8.1 and Section 8.7. In this case the relevant Parties shall first attempt to negotiate a settlement of such claim. To the extent such settlement is not reached within 30 days after receipt of such notification by Sellers’ Agent, Purchaser shall have 60 additional days following the expiration of the foregoing 30-day period to file an action (Klageerhebung) against the relevant Sellers. The action can be served on the Process Agent. For the avoidance of doubt it is clarified that Section 167 German Civil Procedure Code (Zivilprozessordnung, ZPO) shall apply. An amount equal to the amount in dispute (Streitwert) in such legal proceeding or, if such action is aimed at a declaratory judgement (Feststellungsklage), an amount equal to a reasonable estimate of Purchaser regarding the volume of the claim shall not be released until the legal proceeding has been decided, settled or dismissed in a final and binding manner (rechtskräftig) unless otherwise agreed between Sellers and Purchaser in writing. If Purchaser has not filed an action within the aforementioned 60-day period and the Escrow Period II has lapsed, the Sellers’ Agent and Purchaser shall instruct the Escrow Agent to release immediately to the Sellers the full residual amount of the Escrow Amount for which no suspension is permitted. (iii) In the event that Purchaser has filed a declaratory action (Feststellungklage) and Purchaser’s reasonable estimate regarding the volume of the claim turns out to be incorrect by more than 20 %, Purchaser shall be obliged to pay interest (over and above any interest accruing on such Escrow Amount in the Escrow account) at a rate of 5 % per annum on any amount by which the actual damage claims finally awarded to Purchaser are less than Purchaser’s estimate for the period from the date when the relevant amount would otherwise have been released from the Escrow Account until to the date when Sellers are entitled to request release of such amount under the Escrow Agreement.

Release of Escrow Amount. The Escrow Amount in the then available amount Agent shall be released to the respective Sellers in accordance with the provisions of hold the Escrow Agreement by Amount until it delivers the following amounts Escrow Amount as provided in this Section 4, as follows: (ia) an amount The Escrow Agent, upon receipt of USD 12,500,000 (in words twelve million five hundred thousand U.S. Dollars) shall be released on written instructions signed by both Seller and Buyer regarding the date that is six months after the Closing Date (“Escrow Period I”), except for (i) any amounts being under negotiation or dispute pursuant to the procedure set forth below and (ii) any amounts already released to the Sellers or the Purchaser based on a mutual settlement or final and binding (rechtskräftig) decision disbursement of the competent court: Purchaser may provide Sellers’ Agent with a Purchaser Claim Notice Escrow Amount, shall disburse the Escrow Amount, or a Tax Claim Notice within the Escrow Period I portion thereof, in accordance with the provisions of Section 8.1 and Section 8.7. In this case the relevant Parties shall first attempt to negotiate a settlement of such claim. To the extent such settlement is not reached within 30 days after receipt of such notification by Sellers’ Agent, Purchaser shall have 60 additional days following the expiration of the foregoing 30-day period to file an action written instructions. (Klageerhebungb) against the relevant or all of the Seller(s). The action can be served on the Process Agent. For the avoidance of doubt it is clarified that Section 167 German Civil Procedure Code (Zivilprozessordnung, ZPO) shall apply. An amount equal to the amount in dispute (Streitwert) in such legal proceeding or, if such action is aimed at a declaratory judgement (Feststellungsklage), an amount equal to a reasonable estimate of Purchaser regarding the volume of the claim shall not be released until the legal proceeding has been decided, settled or dismissed in a final and binding manner (rechtskräftig), unless otherwise agreed between Sellers and Purchaser in writing. If Purchaser has not filed an action within the aforementioned 60-day period and the Escrow Period I has lapsed, the Sellers’ Agent and Purchaser shall instruct the Escrow Agent to release immediately receives written notice signed by the Buyer stating that the Buyer is entitled to the Sellers the full USD 12,500,000 except for Escrow Amount or a portion thereof, (or that Seller is not otherwise entitled to any amounts which have already been released or as otherwise agreed between the Parties; (ii) any remaining amount shall be released on December 31, 2008 (the period from the end portion of the Escrow Period I until December 31, 2008: “Escrow Period II”Amount) except for (x) any amounts being under negotiation or dispute pursuant to the procedure set forth in lit. (i) above or this lit. (ii) below and (y) any amounts already released to the Sellers or the Purchaser based on a mutual settlement or final and binding (rechtskräftig) decision of the competent court: Purchaser may provide Sellers’ Agent with a Purchaser Claim Notice or a Tax Claim Notice within the Escrow Period II in accordance with the provisions of Section 8.1 and Section 8.7. In this case the relevant Parties shall first attempt to negotiate a settlement of such claim. To the extent such settlement is not reached within 30 days after receipt of such notification by Sellers’ Agent, Purchaser shall have 60 additional days following the expiration of the foregoing 30-day period to file an action (Klageerhebung) against the relevant Sellers. The action can be served on the Process Agent. For the avoidance of doubt it is clarified that Section 167 German Civil Procedure Code (Zivilprozessordnung, ZPO) shall apply. An amount equal to the amount in dispute (Streitwert) in such legal proceeding or, if such action is aimed at a declaratory judgement (Feststellungsklage), an amount equal to a reasonable estimate of Purchaser regarding the volume of the claim shall not be released until the legal proceeding has been decided, settled or dismissed in a final and binding manner (rechtskräftig) unless otherwise agreed between Sellers and Purchaser in writing. If Purchaser has not filed an action within the aforementioned 60-day period and the Escrow Period II has lapsed, the Sellers’ Agent and Purchaser shall instruct the Escrow Agent to release immediately shall deliver or mail a copy thereof to the Sellers Seller and, unless the full residual Escrow Agent has received a written notice of objection from the Seller specifying the amount to which Seller claims entitlement within fifteen (15) business days after such mailing, the Escrow Agent shall deliver the Escrow Amount or the requested portion thereof, as the case may be, to the Buyer. If the Escrow Agent so receives a written notice of objection from the Seller, as provided above, a controversy shall be deemed to have occurred with respect to such contested amount for purposes of Section 4(d) hereof. (c) If the Escrow Agent receives written notice signed by the Seller stating that the Seller is entitled to the Escrow Amount or a portion thereof, the Escrow Agent shall deliver or mail a copy thereof to the Buyer and, unless the Escrow Agent has received a written notice of objection from the Buyer specifying the portion of the Escrow Amount to which Buyer claims entitlement, within fifteen (15) business days after such mailing, the Escrow Agent shall deliver the Escrow Amount or the requested portion thereof, as the case may be, to the Seller. If the Escrow Agent so receives a written notice of objection from the Buyer, as provided above, a controversy shall be deemed to have occurred with respect to such contested amount for which no suspension is permittedpurposes of Section 4(d) hereof. (iiid) In the event that Purchaser has filed If a declaratory action (Feststellungklage) and Purchaser’s reasonable estimate regarding the volume controversy arises between one or more of the claim turns parties hereto, or between any of the parties hereto and any person not a party hereto, as to whether or not or to whom the Escrow Agent shall deliver the Escrow Amount or as to any other matter arising out of or relating to the Escrow Amount or this Agreement, the Escrow Agent shall not be incorrect required to determine the same and shall not make any delivery of any disputed portion of the Escrow Amount but shall retain it until the Escrow Agent shall have received either (i) written instructions signed by more than 20 %both Buyer and Seller or (ii) a final, Purchaser non-appealable judgment of a court of competent jurisdiction declaring the respective rights of the Buyer and Seller with respect to the Escrow Amount, in which case the Escrow Agent shall be obliged to pay interest (over and above any interest accruing on such disburse the Escrow Amount in accordance with such instructions or judgment. The Escrow Agent shall be entitled to assume that no such controversy has arisen unless it has received a written notice that such a controversy has arisen which refers specifically to this Agreement; provided, however, that the Escrow account) at a rate of 5 % per annum on Agent shall not be bound by any amount by which the actual damage claims finally awarded to Purchaser are less than Purchaser’s estimate for the period from the date when the relevant amount would otherwise have been released from such notice unless it is received before the Escrow Account until to the date when Sellers are entitled to request release of such amount under Agent delivers the Escrow AgreementAmount, or any portion thereof. If a controversy of the type referred to in this paragraph arises, the Escrow Agent may, in its sole discretion (but shall not be obligated to), commence interpleader or similar actions or proceedings for determination of the controversy.

Release of Escrow Amount. The Escrow Agent shall hold the Escrow ------------------------ Amount until it delivers the Escrow Amount in the then available amount shall be released to the respective Sellers in accordance with the provisions of the Escrow Agreement by the following amounts as follows: (ia) an amount If the Escrow Agent receives a written notice from Buyer stating that the Anniversary, as defined by the Purchase Agreement, is about to take place and such notice provides the date of USD 12,500,000 (in words twelve million five hundred thousand U.S. Dollars) Anniversary, Escrow Agent shall be released deliver on the date that is six months after of the Closing Date (“Anniversary the Escrow Period I”)Deposit, except for (i) any amounts being under negotiation by certified or dispute pursuant bank cashier's check or by electronic transfer of funds, to the procedure set forth below Seller, and (ii) any amounts already released Escrow Agent shall deliver on the date of the Anniversary the Interest, by certified or bank cashier's check or by electronic transfer of funds, to the Sellers Buyer. (b) If Escrow Agent receives a written notice other than as specified in (a) above from Seller or the Purchaser based on a mutual settlement Buyer ("Noticing Party") stating that Noticing Party or final and binding (rechtskräftig) decision of the competent court: Purchaser may provide Sellers’ Agent with a Purchaser Claim Notice or a Tax Claim Notice within some other entity designated by Noticing Party is entitled to the Escrow Period I Amount, Escrow Agent shall deliver a copy thereof to the party who is not the Noticing Party ("Other Party") and, unless Escrow Agent has received a written notice of objection from Other Party within ten (10) business days after such delivery, Escrow Agent shall deliver the Escrow Amount as instructed by the Noticing Party. If Escrow Agent so receives a written notice of objection from Other Party, a controversy shall be deemed to have occurred for purposes of Section 4(b) hereof. (c) Escrow Agent shall, in addition, disburse the Escrow Amount in accordance with any joint written instructions received by Escrow Agent from the Seller and Buyer, which joint instructions shall be deemed to superseded the above provisions of this Section 8.1 and Section 8.7. In this case the relevant Parties shall first attempt to negotiate a settlement of such claim. To the extent such settlement is not reached within 30 days after receipt of such notification by Sellers’ Agent, Purchaser shall have 60 additional days following the expiration of the foregoing 30-day period to file an action (Klageerhebung) against the relevant or all of the Seller(s). The action can be served on the Process Agent. For the avoidance of doubt it is clarified that Section 167 German Civil Procedure Code (Zivilprozessordnung, ZPO) shall apply. An amount equal to the amount in dispute (Streitwert) in such legal proceeding or, if such action is aimed at a declaratory judgement (Feststellungsklage), an amount equal to a reasonable estimate of Purchaser regarding the volume of the claim shall not be released until the legal proceeding has been decided, settled or dismissed in a final and binding manner (rechtskräftig), unless otherwise agreed between Sellers and Purchaser in writing. If Purchaser has not filed an action within the aforementioned 60-day period and the Escrow Period I has lapsed, the Sellers’ Agent and Purchaser shall instruct the Escrow Agent to release immediately to the Sellers the full USD 12,500,000 except for any amounts which have already been released or as otherwise agreed between the Parties; (ii) any remaining amount shall be released on December 31, 2008 (the period from the end of the Escrow Period I until December 31, 2008: “Escrow Period II”) except for (x) any amounts being under negotiation or dispute pursuant to the procedure set forth in lit. (i) above or this lit. (ii) below and (y) any amounts already released to the Sellers or the Purchaser based on a mutual settlement or final and binding (rechtskräftig) decision of the competent court: Purchaser may provide Sellers’ Agent with a Purchaser Claim Notice or a Tax Claim Notice within the Escrow Period II in accordance with the provisions of Section 8.1 and Section 8.7. In this case the relevant Parties shall first attempt to negotiate a settlement of such claim. To the extent such settlement is not reached within 30 days after receipt of such notification by Sellers’ Agent, Purchaser shall have 60 additional days following the expiration of the foregoing 30-day period to file an action (Klageerhebung) against the relevant Sellers. The action can be served on the Process Agent. For the avoidance of doubt it is clarified that Section 167 German Civil Procedure Code (Zivilprozessordnung, ZPO) shall apply. An amount equal to the amount in dispute (Streitwert) in such legal proceeding or, if such action is aimed at a declaratory judgement (Feststellungsklage), an amount equal to a reasonable estimate of Purchaser regarding the volume of the claim shall not be released until the legal proceeding has been decided, settled or dismissed in a final and binding manner (rechtskräftig) unless otherwise agreed between Sellers and Purchaser in writing. If Purchaser has not filed an action within the aforementioned 60-day period and the Escrow Period II has lapsed, the Sellers’ Agent and Purchaser shall instruct the Escrow Agent to release immediately to the Sellers the full residual amount of the Escrow Amount for which no suspension is permitted3. (iii) In the event that Purchaser has filed a declaratory action (Feststellungklage) and Purchaser’s reasonable estimate regarding the volume of the claim turns out to be incorrect by more than 20 %, Purchaser shall be obliged to pay interest (over and above any interest accruing on such Escrow Amount in the Escrow account) at a rate of 5 % per annum on any amount by which the actual damage claims finally awarded to Purchaser are less than Purchaser’s estimate for the period from the date when the relevant amount would otherwise have been released from the Escrow Account until to the date when Sellers are entitled to request release of such amount under the Escrow Agreement.