Release of Escrow Property. a. Promptly after the General Fund Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (x) 80% of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims. b. Promptly after the Intellectual Property Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (x) 5% of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Section 6.1(d) of the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Section 6.1(d) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims. c. Promptly after the Tax Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders all of the Escrow Property then held in the Escrow Account. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims. d. Any distribution of all or a portion of the Escrow Property to the Indemnifying Stockholders shall be made in accordance with the percentages set forth opposite such holders' respective names on Attachment A attached hereto; provided, however, that the Escrow Agent shall withhold the distribution of the portion of the Escrow Property otherwise distributable to Indemnifying Stockholders who have not, according to written notice provided by the Buyer to the Escrow Agent, prior to such distribution, surrendered their respective Certificates pursuant to the terms and conditions of the Merger Agreement. Any such withheld shares shall be delivered to the Buyer promptly after the Tax Termination Date, and shall be delivered by the Buyer to the Indemnifying Stockholders to whom such shares would have otherwise been distributed upon surrender of their respective Certificates. Distributions to the Indemnifying Stockholders shall be made by mailing stock certificates or other property to such holders at their respective addresses shown on Attachment A (or such other address as may be provided in writing to the Escrow Agent by any such holder). No fractional Escrow Shares shall be distributed to Indemnifying Stockholders pursuant to this Agreement. Instead, the number of shares that each Indemnifying Stockholder shall receive shall be rounded up or down to the nearest whole number (provided that the Indemnification Representatives shall have the authority to effect such rounding in such a manner that the total number of whole Escrow Shares to be distributed equals the number of Escrow Shares then held in the Escrow Account).
Appears in 1 contract
Sources: Escrow Agreement (Shepro Robert C)
Release of Escrow Property. a. (a) Promptly after the General Fund Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (x) 80% of the initial Escrow Property (plus any Buyer Common Stock then held in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreementescrow. Notwithstanding the foregoing, if an Indemnified Person has previously given a any Claim Notice pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement which has Notices that have not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable)4, the Escrow Agent shall retain in the Escrow Account after the Termination Date an amount of Escrow Property having a Fair Market Value equal to the aggregate Claimed Amount covered by any all such Claim Notice which has Notices that have not then been resolved (subject to the limitations set forth in Section 4(c))resolved. Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
b. Promptly after the Intellectual Property Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (xb) 5% of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Section 6.1(d) of the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Section 6.1(d) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
c. Promptly after the Tax Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders all of the Escrow Property then held in the Escrow Account. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
d. Any distribution of all or a portion of the Escrow Property to the Indemnifying Stockholders shall be made in accordance with the percentages set forth opposite such holders' respective names on Attachment A attached hereto; ------------ provided, however, that the Escrow Agent shall withhold the distribution of the -------- ------- portion of the Escrow Property otherwise distributable to Indemnifying Stockholders who have not, according to written notice provided by the Buyer to the Escrow Agent, prior to such distribution, surrendered their respective Certificates pursuant to the terms and conditions of the Merger Agreement. Any such withheld shares Escrow Property shall be delivered to the Buyer promptly after the Tax Termination Date, and shall be delivered by the Buyer to the Indemnifying Stockholders to whom such shares Escrow Property would have otherwise been distributed upon surrender of their respective Certificates. Distributions to the Indemnifying Stockholders shall be made by submitting the appropriate Escrow Shares for transfer and/or mailing stock certificates or other property checks to such holders at their respective addresses shown on Attachment A (or such other address as may be provided in ------------ writing to the Escrow Agent by any such holder). No fractional Escrow Shares shall be distributed to Indemnifying Stockholders pursuant to this Agreement. Instead, the number of shares that each Indemnifying Stockholder shall receive shall be rounded up or down to the nearest whole number (provided that the Indemnification Representatives Representative shall have the authority to effect such rounding in such a manner that the total number of whole Escrow Shares to be distributed equals the number of Escrow Shares then held in the Escrow Account).
Appears in 1 contract
Sources: Escrow Agreement (Idx Systems Corp)
Release of Escrow Property. a. Promptly (a) Subject to the provisions of paragraph (b) below, within 15 days after the General Fund Termination first anniversary of the Closing Date (such date, the "Release Date"), the Escrow Agent shall distribute deliver to the Indemnifying Company Stockholders the difference between (x) 80% of the initial Escrow Property then held in escrow, apportioned in accordance with Section 6(c) below.
(plus any Buyer Common Stock in respect thereof or in exchange thereforb) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement. Notwithstanding the foregoing, the release of the Escrow Property shall be subject to the following limitations:
(i) if on the Release Date the Escrow Agent has not received an Indemnified Person Adjustment Notice or a Dispute Notice and has previously given received a Claim Notice pursuant notice from the Buyer indicating that adjustment matters relating to Sections 6.1(aSection 1.8 of the Purchase Agreement remain unresolved (an "Adjustment Delay"), 6.1(ball Escrow Property shall be retained by the Escrow Agent after the Release Date;
(ii) and/or 6.1(c) if on the Release Date the Escrow Agent has not received an Adjustment Notice but has received a Dispute Notice, and such dispute has not as of the Merger Agreement which has not then Release Date been resolved in accordance with Section 4 hereof or Section 6.2 1.8(c) of the Merger Agreement (as applicable)Purchase Agreement, the Escrow Agent shall retain in the Escrow Account after the Release Date an amount of the Escrow Property having a Fair Market Value equal to the Net Book Value Adjustment asserted by the Buyer in connection with such dispute (the "Contested Purchase Price Amount") and release the balance of the Escrow Property, if any, to the Company Stockholders, subject to Section 6(b)(iii); and
(iii) if on the Release Date an Indemnified Person has previously given any Claim Notices that have not then been resolved in accordance with Section 5 above, the Escrow Agent shall retain in the Escrow Account after the Release Date an amount of Escrow Property having a Fair Market Value equal to the aggregate Claimed Amount covered by any all such Claim Notice which has Notices that have not then been resolved (subject to the limitations set forth provided that Section 6(b)(i) does not otherwise apply, in which case Section 4(c)6(b)(i) shall govern). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
b. Promptly after the Intellectual Property Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (xc) 5% of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Section 6.1(d) of the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Section 6.1(d) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
c. Promptly after the Tax Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders all of the Escrow Property then held in the Escrow Account. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
d. Any distribution of all or a portion of the Escrow Property to the Indemnifying Company Stockholders shall be made in accordance with the percentages set forth opposite such holders' respective names on Attachment A attached hereto; provided, ---------- - however, that the Escrow Agent shall withhold the distribution of the deduct from any portion of the Escrow Property otherwise distributable to Indemnifying Stockholders who have notbe distributed to any Company Stockholder, according to written notice provided by the Buyer and shall distribute to the Escrow Agentother Company Stockholders, prior to such distribution, surrendered their respective Certificates pursuant to the terms and conditions other Company Stockholders' pro rata portion of the Merger Agreement. Any such withheld shares shall be delivered any amounts previously disbursed to the Buyer promptly after hereunder as the Tax Termination Date, result of the satisfaction of any liability for which such Company Stockholder was severally and shall be delivered by the Buyer not jointly liable to the Indemnifying Stockholders to whom such shares would have otherwise been distributed upon surrender of their respective CertificatesBuyer. Distributions to the Indemnifying Company Stockholders shall be made by mailing stock certificates or other property a check to such holders at their respective addresses shown on Attachment A (or such other address as may be provided in writing to ---------- - the Escrow Agent by any such holder). No fractional Escrow Shares shall be distributed to Indemnifying Stockholders pursuant to this Agreement. Instead, the number of shares that each Indemnifying Stockholder shall receive shall be rounded up or down to the nearest whole number (provided that the Indemnification Representatives shall have the authority to effect such rounding in such a manner that the total number of whole Escrow Shares to be distributed equals the number of Escrow Shares then held in the Escrow Account).
Appears in 1 contract
Sources: Stock Purchase Agreement (Renaissance Solutions Inc)
Release of Escrow Property. a. (a) Promptly after January 5, 1996, the Escrow Agent shall distribute to the Indemnifying Stockholders Escrow Property having a Fair Market Value equal to the difference between (i) 80% of the Escrow Property initially deposited with the Escrow Agent and (ii) any amounts previously distributed from the Escrow Fund in payment of any indemnification obligation to the Buyer under Article VI of the Merger Agreement (the "Initial Distribution"). Notwithstanding the foregoing, if the Buyer has previously given a Claim Notice which has not then been resolved in accordance with Section 4 or the terms of the Merger Agreement (as applicable), the Escrow Agent shall only distribute under this subsection 5(a) Escrow Property having a Fair Market Value equal to the difference between (x) the Fair Market Value of the Initial Distribution, and (y) the Claimed Amount.
(b) Promptly after the General first anniversary of the Effective Time, the Escrow Agent shall distribute to the Indemnifying Stockholders Escrow Property having a Fair Market Value equal to the difference between (i) 10% of the Escrow Property initially deposited with the Escrow Agent, and (ii) any amounts previously distributed from the Escrow Fund in payment of any indemnification obligation to the Buyer under Article VI of the Merger Agreement, except to the extent such amounts had previously reduced the Initial Distribution (the "Second Distribution"). Notwithstanding the foregoing, if the Buyer has previously given a Claim Notice which has not then been resolved in accordance with Section 4 or the Terms of the Merger Agreement (as applicable) or otherwise fully reserved for in connection with a distribution under subsection 5(a) above, the Escrow Agent shall only distribute under this subsection 5(b) Escrow Property having a Fair Market value equal to the difference between (x) 10% of the Fair Market Value of the Escrow Property initially deposited with the Escrow Agent, and (y) the Claimed Amount (or such portion thereof as has not been fully reserved for in connection with a distribution under subsection 5(a) above).
(c) Promptly after the Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (x) 80% all of the initial Escrow Property (plus any Buyer Common Stock then held in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreementescrow. Notwithstanding the foregoing, if an Indemnified Person the Buyer has previously given a Claim Notice pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 the terms of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account after the Termination Date an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c))resolved. Any Escrow Property funds so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
b. Promptly after the Intellectual Property Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (xd) 5% of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Section 6.1(d) of the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Section 6.1(d) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
c. Promptly after the Tax Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders all of the Escrow Property then held in the Escrow Account. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
d. Any distribution of all or a portion of the Escrow Property to the Indemnifying Stockholders shall be made in accordance with the percentages percentage interests set forth opposite such holders' respective names on Attachment A Schedule I attached hereto; provided, however, (i) that the Escrow Agent shall withhold the distribution of the portion of the Escrow Property otherwise distributable to Indemnifying Stockholders who have not, according to written notice provided by the Buyer to the Escrow Agent, prior to such distribution, surrendered their respective Certificates pursuant to the terms and conditions of the Merger Agreement; (ii) that such Schedule I shall be appropriately revised in the event the Buyer deposits additional Escrow Property with the Escrow Agent pursuant to the Merger Agreement or Optionee Consent Agreements following the date of this Agreement; (iii) that Escrow Units shall only be distributed to those Indemnifying Stockholders listed in Schedule I as entitled to receive Escrow Units (the "Unit Stockholders"); (iv) that, with respect to the Initial Distribution, the Indemnification Representatives shall direct the Escrow Agent in writing the relative amount of the Escrow Cash and whole Escrow Units to distribute to the Unit Stockholders (consistent with the provisions of subsection 5(a) hereof); and (v) that Unit Stockholders shall thereafter receive Escrow Cash and Escrow Units in proportion to the relative Fair Market Value of Escrow Cash and Escrow Units held on their behalf in escrow hereunder immediately after the Initial Distribution (with any fractional Escrow Units rounded down to the next whole Escrow Unit). Any such property withheld shares pursuant to clause (i) above shall be delivered to the Buyer promptly after the Tax Termination Date, and shall be delivered by the Buyer to the Indemnifying Stockholders to whom such shares property would have otherwise been distributed upon surrender of their respective Certificates. Distributions to the Indemnifying Stockholders shall be made by mailing stock certificates or other property and Buyer Warrants and/or cash to such holders at their respective addresses shown on Attachment A Schedule I (or such other address as may be provided in writing to the Escrow Agent by any such holder). No fractional Escrow Shares Units shall be distributed to Indemnifying Stockholders pursuant to this Agreement. Instead, the number of shares that each Indemnifying Stockholder Buyer shall receive redeem such Escrow Units for an amount equal to their Fair Market Value and the Escrow Agent shall be rounded up or down to distribute cash in lieu thereof. The Buyer will cooperate with the nearest whole number (provided that the Indemnification Representatives shall have the authority to effect such rounding Escrow Agent and will make available certificates for Buyer Common Stock and Buyer Warrants in such a manner that the total number of whole Escrow Shares denominations and in such names as may be required to be distributed equals the number of Escrow Shares then held in the Escrow Account)effectuate any distributions hereunder.
Appears in 1 contract
Release of Escrow Property. a. Subject to Section 2(a)(ii), the Escrow Agent is directed to hold and distribute the Escrow Property in the following manner:
(a) Except as otherwise provided in Sections 6(e) and 9(o) hereof, the Escrow Agent will only release the Escrow Property in the cases specifically provided for in this Section 3.
(b) Upon the satisfaction or waiver (in accordance with Section 9.02 of the Credit Agreement) of the conditions set forth in Section 4.02 of the Credit Agreement (other than conditions that will be satisfied substantially concurrently with the release of the Escrow Property), the Borrower will promptly deliver a Borrower Release Request to each of the Agents and the Escrow Agent, confirming that all of such conditions have been satisfied or will be satisfied substantially concurrently with the release of the Escrow Property (the date that all of such conditions have been or will be so satisfied, the “Acquisition Effective Date”).
(c) Promptly upon receipt of (1) the Borrower Release Request and (2) confirmation by the Agents of their receipt of the same signed by an Authorized Representative, the Escrow Agent will liquidate all investments and release the Escrow Property as follows:
(i) first, an amount in cash equal to any Interest Deposit that has not been paid to the Administrative Agent, to the Administrative Agent, by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth in Section 3(j) hereof; and
(ii) second, any and all remaining Escrow Property, together with interest or other income with respect to such remaining Escrow Property that became part of the Escrow Property pursuant to Section 2(a)(ii) hereof, to the Borrower, by wire transfer of immediately available funds in accordance with the wire instructions provided to the Escrow Agent as set forth in Section 3(j) hereof.
(iii) For the avoidance of doubt, any amounts required to be released above shall be stated on the Borrower Release Request.
(d) If the conditions contained in clause (b) have not been satisfied by the Acquisition Outside Date, upon the receipt of a Collateral Agent Notice, the Escrow Agent will, promptly following the Acquisition Outside Date, liquidate all investments of Escrow Property then held by it and release all of the Escrow Property as follows:
(i) first, to the Agents, an amount of Escrow Property in cash equal to amounts owing to the Agents in respect of fees and expenses of the Agents under the Credit Agreement by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth in Section 3(j) hereof;
(ii) second, to the Administrative Agent, an amount of Escrow Property in cash equal to the outstanding principal amount of the Term B Loans plus accrued and unpaid interest on the Term B Loans through the date of such prepayment for payment to the Lenders in accordance with the prepayment provisions contained in Section 2.07(b)(v) of the Credit Agreement; such release of Escrow Property to the Administrative Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 3(j) hereof;
(iii) third, to the Borrower, any Escrow Property remaining after distributions in clauses (d)(i) and (ii) above, by wire transfer of immediately available funds in accordance with the wire instructions provided to the Escrow Agent as set forth in Section 3(j) hereof.
(iv) for the avoidance of doubt, any amounts required to be released above shall be stated on the Collateral Agent Notice.
(e) The Borrower may determine, in its sole discretion, that the conditions contained in clause (b) of this Section 3 will not be satisfied by the Acquisition Outside Date and may elect to optionally repay the Term B Loans in accordance with the Credit Agreement. Upon written notice and instruction from an Authorized Representative of the Collateral Agent to the Escrow Agent (which will only be given after the General Fund Termination DateBorrower has given the corresponding written notice to the Agents) that the Borrower has elected to exercise its right to optionally prepay the Term B Loans in accordance with the provisions of the Credit Agreement, the Escrow Agent will, on or before the Business Day immediately prior to the date fixed for such optional prepayment, liquidate all investments of Escrow Property then held by it and release all of the Escrow Property as follows:
(i) first, to the Agents, an amount of Escrow Property in cash equal to amounts owing to the Agents in respect of fees and expenses of the Agents under the Credit Agreement by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth in Section 3(j) hereof;
(ii) second, to the Administrative Agent, an amount of Escrow Property in cash equal to the outstanding principal amount of the Term B Loans plus accrued and unpaid interest on the Term B Loans through the date of such prepayment to the Lenders in accordance with the prepayment provisions contained in Section 2.07(a) of the Credit Agreement; such release of Escrow Property to the Administrative Agent will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 3(j) hereof;
(iii) third, to the Borrower, any Escrow Property remaining after the distributions in clauses (e)(i) and (ii) above, by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 3(j) hereof.
(iv) For the avoidance of doubt, any amounts required to be released above shall be stated on the above Borrower notice.
(f) If the Escrow Agent receives a written notice and instruction from an Authorized Representative of the Collateral Agent that the principal amount of and accrued and unpaid interest on the Term B Loans has become immediately due and payable pursuant to Article VII of the Credit Agreement (a “Collateral Agent Acceleration Notice”), then the Escrow Agent will, within one Business Day after receipt of such written notice and instruction from the Collateral Agent, liquidate all Escrow Property then held by it and release all of the Escrow Property as follows:
(i) first, to the Agents, an amount of Escrow Property in cash equal to amounts owing to the Agents in respect of fees and expenses of the Agents under the Credit Agreement by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth in Section 3(j) hereof;
(ii) second, to the Administrative Agent for payment to the Lenders, an amount of Escrow Property in cash equal to the amount of such accelerated principal amount and interest, if any, on the Term B Loans; such release of Escrow Property to the Administrative Agent under the Credit Agreement will be made by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 3(j) hereof; and
(iii) third, to the Borrower, any Escrow Property remaining after distributions in clauses (f)(i) and (ii) above, by wire transfer of immediately available funds in accordance with the wire instructions set forth in Section 3(j) hereof.
(iv) For the avoidance of doubt, any amounts required to be released above shall be stated on a Collateral Agent Acceleration Notice.
(g) On the last day of each Interest Period, the Escrow Agent shall distribute as promptly as practicable thereafter transfer to the Indemnifying Stockholders the difference between (x) 80% of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed Administrative Agent, to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations account set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
b. Promptly after the Intellectual Property Termination Date3(j) hereof, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (x) 5% of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Section 6.1(d) of the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Section 6.1(d) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value funds that is equal to (i) in the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms case of the resolution Initial Interest Period, the Initial Interest Deposit and (ii) in the case of each subsequent Interest Period, the Additional Interest Deposit for such claimsInterest Period as instructed in the Additional Interest Deposit and Interest Payment Notice.
c. Promptly after (h) The Collateral Agent agrees to promptly execute and deliver or cause to be executed and delivered any instruments, documents and agreements and to promptly take all additional steps reasonably requested by the Tax Termination Date, Borrower to evidence and/or confirm the Escrow Agent shall distribute to the Indemnifying Stockholders all of the Escrow Property then held in the Escrow Account. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
d. Any distribution release of all or a any portion of the Escrow Property to the Indemnifying Stockholders Borrower in accordance with this Section 3, including authorizing filing of one or more UCC amendments or termination statements in such jurisdictions and filing offices as are reasonably necessary or advisable (as reasonably determined by the Borrower) in order to terminate or discharge the applicable security interest granted herein. In connection with any release pursuant to this Section 3(h), the Borrower shall be made permitted to take any action in connection therewith consistent with such release including, without limitation, the filing of UCC amendments or termination statements.
(i) Notwithstanding anything to the contrary set forth in Section 9, any Borrower Release Request, Collateral Agent Notice, Collateral Agent Acceleration Notice or other notice related to the transfer or distribution of the Escrow Property, must be in writing executed by the appropriate Party or Parties as evidenced by the signatures of the person or persons signing this Agreement or one of their designated persons as set forth on the Designation of Authorized Representatives attached hereto as Schedule I-1 and Schedule I-2, as applicable (each an “Authorized Representative”), and delivered to the Escrow Agent only by confirmed facsimile or as a Portable Document Format (“PDF”) attached to an email on a Business Day only at the fax number or email address set forth in Section 8 below. Each designation of Authorized Representatives shall be signed by the Secretary, any Assistant Secretary or other duly authorized officer of the named Party. The Escrow Agent shall not be liable to any Party or other person for refraining from acting upon any instruction for or related to the transfer or distribution of the Escrow Property if delivered to any other fax number or email address, including but not limited to a valid email address of any employee of the Escrow Agent.
(j) The Parties each acknowledge that the Escrow Agent is authorized to use the funds transfer instructions below to disburse any funds due to each Agent and/or Borrower, respectively, without a verifying call-back as set forth in Section 3(k) below:
(i) All cash (including the cash proceeds from liquidation of any Escrow Property) distributed from the Escrow Account to the Borrower will be transferred by wire transfer of immediately available funds in accordance with the percentages wire transfer instructions indicated in the Borrower Release Request or otherwise provided by the Borrower to the Escrow Agent (which will require a call-back as set forth opposite such holders' respective names on Attachment A attached hereto; providedin Section 3(k) below).
(ii) If, howeverupon termination of this Agreement and after any required liquidation or distribution of Escrow Property for the benefit of any person other than the Borrower pursuant to this Section 3, that any Escrow Property consists of assets other than cash and is to be released to the Borrower, the Escrow Agent shall withhold liquidate such Escrow Property into cash and distribute it to the distribution Borrower pursuant to this Section 3(j) unless the Borrower has provided a prior written request to the Escrow Agent not to liquidate such Escrow Property and to deliver such non-cash Escrow Property in kind to the Borrower at such account(s) or location(s) specified by the Borrower in such written request. If the Escrow Agent receives such a request, it shall deliver such non-cash Escrow Property to the Borrower as promptly as practicable. No request by the Borrower pursuant to this paragraph shall constitute an “Entitlement Order” or instruction with respect to the Escrow Property prior to the termination of this Agreement.
B. All cash distributed from the Escrow Account to the Administrative Agent for payment on the Term B Loans will be transferred by wire transfer of immediately available funds in accordance with the following wire transfer instructions: Bank: Barclays Bank PLC Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ABA No.: 026 002 574 Account Name: Clad Control Account Account No.: 050-019104 Attention: Staples Inc. Attn: May ▇▇▇▇ / ▇▇▇ ▇▇▇▇▇▇▇
C. All cash distributed from the Escrow Account to the Collateral Agent or Administrative Agent for fees and expenses of the portion Agents will be transferred by wire transfer of immediately available funds in accordance with the following wire transfer instructions: Bank: Barclays Bank PLC Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ABA No.: 026 002 574 Account Name: Clad Control Account Account No.: 050-019104 Attention: Staples Inc. Attn: May ▇▇▇▇ / ▇▇▇ ▇▇▇▇▇▇▇
(k) In the event any other funds transfer instructions are set forth in a permitted instruction from a Party or the Parties in accordance with Section 3, the Escrow Agent is authorized to seek confirmation of such funds transfer instructions by a single telephone call-back to one of the Authorized Representatives, and the Escrow Agent may rely upon the confirmation of anyone purporting to be that Authorized Representative. The persons designated as Authorized Representatives and telephone numbers for same may be changed only in a writing executed by an Authorized Representative or other duly authorized officer of the applicable Party setting forth such changes and actually received by the Escrow Agent via facsimile or as a PDF attached to an email. Except as set forth in Section 3(j) above, no funds will be disbursed until an Authorized Representative is able to confirm such instructions by telephone callback. The Escrow Agent, any intermediary bank and the beneficiary’s bank in any funds transfer may rely upon the identifying number of the beneficiary’s bank or any intermediary bank included in a funds transfer instruction provided by a Party or the Parties and confirmed by an Authorized Representative. Further the beneficiary’s bank in the funds transfer instruction may make payment on the basis of the account number provided in such Party’s or the Parties’ instruction and confirmed by an Authorized Representative even though it identifies a person different from the named beneficiary.
(l) The Parties acknowledge that there are certain security, corruption, transmission error and access availability risks associated with using open networks such as the internet and the Parties hereby expressly assume such risks.
(m) As used in this Section 3, “Business Day” shall mean any day other than a Saturday, Sunday or any other day on which the Escrow Agent located at the notice address set forth below is authorized or required by law or executive order to remain closed. The Parties acknowledge that the security procedures set forth in this Section 3 are commercially reasonable. Upon delivery of the Escrow Property otherwise distributable to Indemnifying Stockholders who have not, according to written notice provided in full by the Buyer to the Escrow Agent, prior to such distributionthis Agreement shall terminate and the related account(s) shall be closed, surrendered their respective Certificates pursuant subject to the terms and conditions provisions of the Merger Agreement. Any such withheld shares shall be delivered to the Buyer promptly after the Tax Termination Date, and shall be delivered by the Buyer to the Indemnifying Stockholders to whom such shares would have otherwise been distributed upon surrender of their respective Certificates. Distributions to the Indemnifying Stockholders shall be made by mailing stock certificates or other property to such holders at their respective addresses shown on Attachment A (or such other address as may be provided in writing to the Escrow Agent by any such holder). No fractional Escrow Shares shall be distributed to Indemnifying Stockholders pursuant to this Agreement. Instead, the number of shares that each Indemnifying Stockholder shall receive shall be rounded up or down to the nearest whole number (provided that the Indemnification Representatives shall have the authority to effect such rounding in such a manner that the total number of whole Escrow Shares to be distributed equals the number of Escrow Shares then held in the Escrow AccountSection 2(b).
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Sources: Escrow Agreement (Staples Inc)
Release of Escrow Property. a. Promptly 7.1 Immediately after the General Fund Termination Anniversary Date, the Escrow Agent shall hold and distribute the Escrow Shares and all other property then held in the Escrow Account in accordance with the following:
(a) If there is on that date neither any claim asserted by the Buyer which has not yet been resolved pursuant to Section 4 hereof (a "pending claim"), nor any claim of Buyer resolved but not paid, the Escrow Agent shall distribute to the Indemnifying Stockholders Shareholder, the difference between (x) 80% of Escrow Shares and any other property in the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant Account subject to Section 4 hereof in respect of claims made pursuant to Sections 6.1(a)6(b) above.
(b) If there is on that date any pending claim, 6.1(b) and/or 6.1(c) of the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement which has or any claim resolved but not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable)paid, the Escrow Agent shall retain in the Escrow Account for the purpose of satisfying any such pending or resolved but unpaid claims an amount of cash or cash equivalents equal to the amount of all pending claims and resolved but not paid claims. If the cash and cash equivalents in the Escrow Account on the Anniversary Date are not sufficient to cover all pending claims and claims resolved but not paid, the Escrow Agent shall retain an amount of Escrow Property Shares and/or other property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has difference between (i) the amount of cash in the Escrow Account on the Anniversary Date and (ii) the total amount of all pending claims and resolved but not then been resolved (subject paid claims. In addition to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
b. Promptly after the Intellectual Property Termination Dateforegoing, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (x) 5% of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) Shareholder any Escrow Property (or Buyer Common Stock Shares and other property which is not retained in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons Escrow Account pursuant to this Section 4 hereof in respect 7.1(b). Upon the written request of claims made pursuant to Section 6.1(d) of either Buyer or the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Section 6.1(d) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable)Shareholder, the Escrow Agent shall retain sell any Escrow Shares retained in the Escrow Account pursuant to this Section 7.1(b) (the "Retained Shares") and retain the proceeds of such sales in the Escrow Account; provided, however, that, unless Buyer otherwise consents in writing, the Escrow Agent shall not sell more than ten percent (10%) of the aggregate number of Retained Shares per week.
7.2 Following the expiration of the term of this Escrow Agreement, as each pending claim is paid or denied for which an amount of Escrow Property having a Fair Market Value equal was reserved according to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
c. Promptly after the Tax Termination Date7.1(b) hereof, the Escrow Agent shall distribute to the Indemnifying Stockholders all Shareholder the balance of the cash and cash equivalents (and, to the extent Escrow Property then held Shares have not been liquidated pursuant to Section 7.1(b) above, Escrow Shares), if any, in the Escrow Account. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
d. Any distribution of all or a portion of the Escrow Property to the Indemnifying Stockholders shall be made in accordance with the percentages set forth opposite such holders' respective names on Attachment A attached hereto6(b) above; provided, however, that if at that time there remain other pending claims or resolved but not paid claims, the Escrow Agent shall withhold the distribution of the portion of the Escrow Property otherwise distributable continue to Indemnifying Stockholders who have not, according to written notice provided by the Buyer hold cash and cash equivalents in an amount equal to the lesser of (i) the value of all cash and cash equivalents (and, to the extent Escrow Agent, prior to such distribution, surrendered their respective Certificates Shares have not been liquidated pursuant to the terms and conditions of the Merger Agreement. Any such withheld shares shall be delivered to the Buyer promptly after the Tax Termination DateSection 7.1(b) above, and shall be delivered by the Buyer to the Indemnifying Stockholders to whom such shares would have otherwise been distributed upon surrender of their respective Certificates. Distributions to the Indemnifying Stockholders shall be made by mailing stock certificates or other property to such holders at their respective addresses shown on Attachment A (or such other address as may be provided in writing to the Escrow Agent by any such holder). No fractional Escrow Shares shall be distributed to Indemnifying Stockholders pursuant to this Agreement. Instead, the number of shares that each Indemnifying Stockholder shall receive shall be rounded up or down to the nearest whole number (provided that the Indemnification Representatives shall have the authority to effect such rounding in such a manner that the total number of whole Escrow Shares to be distributed equals the number of Escrow Shares then held Shares) in the Escrow Account), or (ii) the total amount of all pending claims or resolved but not paid claims. When no pending claims or resolved but not paid claims remain, the Escrow Agent shall distribute to the Shareholder the balance, if any, of the cash and cash equivalents (and, to the extent Escrow Shares have not been liquidated pursuant to Section 7.1(b) above, Escrow Shares) in the Escrow Account subject to Section 6(b) above.
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Release of Escrow Property. a. Promptly after (i) If (1) the General Fund Termination Date, Depositor has not obtained NASD Approval (as defined in the Depositor's Certificate of Designations of its Series F Preferred Stock ("Certificate of Designations") or Shareholder Approval (as defined in the Certificate of Designations) and (2) a Buyer has elected to redeem up to that amount of Debentures held by such holder of which the Outstanding Principal Amount (as defined in the Debentures) is equal to (i) the Original Escrow Agent shall distribute to the Indemnifying Stockholders the difference between Amount multiplied by (ii) a fraction (x) 80% the numerator of which is the aggregate Outstanding Principal Amount of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) Debentures held by such holder and (y) any the denominator of which is equal to the aggregate Outstanding Principal Amount of all of the Debentures (the "Redemption") pursuant to Section 11(g) of the Debentures, the Buyer electing such Redemption will deliver to the Escrow Property Agent a written notice in the form of Exhibit B signed by the Buyer (or a "Buyer Common Stock in respect thereof or in exchange thereforDistribution Notice") previously setting forth the amount to be distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of Buyer determined as provided above and directing the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
b. Promptly after the Intellectual Property Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders the difference between (x) 5% of the initial Escrow Property (plus any Buyer Common Stock in respect thereof or in exchange therefor) and (y) any Escrow Property (or Buyer Common Stock in respect thereof or in exchange therefor) previously distributed to the Indemnified Persons pursuant to Section 4 hereof in respect of claims made pursuant to Section 6.1(d) of the Merger Agreement. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice pursuant to Section 6.1(d) of the Merger Agreement which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
c. Promptly after the Tax Termination Date, the Escrow Agent shall distribute to the Indemnifying Stockholders all of the Escrow Property then held in the Escrow Account. Notwithstanding the foregoing, if an Indemnified Person has previously given a Claim Notice which has not then been resolved in accordance with Section 4 hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow Agent shall retain in the Escrow Account an amount of Escrow Property having a Fair Market Value equal to the Claimed Amount covered by any Claim Notice which has not then been resolved (subject to the limitations set forth in Section 4(c)). Any Escrow Property so retained in escrow shall be disbursed in accordance with the terms of the resolution of such claims.
d. Any distribution of all or a portion of the Escrow Property to the Indemnifying Stockholders shall be made in accordance its Pro-Rata Allocation together with the percentages set forth opposite such holders' respective names on Attachment A attached hereto; providedall interest or fees earned thereon. Within five Business Days after receipt of a Buyer Distribution Notice, however, that the Escrow Agent shall withhold pay to the distribution of Buyer requesting such distribution, the portion amount of the Escrow Property otherwise distributable to Indemnifying Stockholders who have notspecified in such Buyer Distribution Notice. The Escrow Agent shall, according to written notice provided by the Buyer to the Escrow Agent, prior to such distribution, surrendered their respective Certificates pursuant to extent the terms and conditions of the Merger Agreement. Any such withheld shares shall be delivered to the Buyer promptly after the Tax Termination Date, and shall be delivered by the Buyer to the Indemnifying Stockholders to whom such shares would have otherwise been distributed upon surrender of their respective Certificates. Distributions to the Indemnifying Stockholders shall be made by mailing stock certificates or other property to such holders at their respective addresses shown on Attachment A (or such other address as may be provided in writing Depositor has not certified to the Escrow Agent by any such holder). No fractional Escrow Shares shall be distributed and Buyers that it has otherwise satisfied its obligation to Indemnifying Stockholders pay accrued interest (or, in the case of Crescent, accrued fees) on the Debentures in accordance with their terms (the interest or, in the case of Crescent, fees, earned pursuant to this Agreement. Insteadthe Debentures is collectively referred to herein as the "Debenture Escrow Interest"), also distribute to such Buyer the number Buyer's Pro-Rata Allocation of shares that each Indemnifying Stockholder shall receive shall be rounded up such interest or down to the nearest whole number fees in partial satisfaction of accrued interest (provided that the Indemnification Representatives shall have the authority to effect such rounding in such a manner that the total number of whole Escrow Shares to be distributed equals the number of Escrow Shares then held or, in the Escrow Account)case of Crescent, accrued fees) owed under the Debentures.
(ii) If the Depositor has obtained NASD Approval or Shareholder
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