Escrow Fund. In addition to the initial deposits with respect to Taxes and Insurance Premiums made by Borrower to Lender on the date hereof to be held by Lender in escrow, Borrower shall pay to Lender on the first day of each calendar month (a) one-twelfth of an amount which would be sufficient to pay the Taxes payable, or estimated by Lender to be payable, during the next ensuing twelve (12) months and (b) one-twelfth of an amount which would be sufficient to pay the Insurance Premiums due for the renewal of the coverage afforded by the Policies upon the expiration thereof (the amounts in (a) and (b) above shall be called the "Escrow Fund"). Borrower agrees to notify Lender immediately of any changes to the amounts, schedules and instructions for payment of any Taxes and Insurance Premiums of which it has or obtains knowledge and authorizes Lender or its agent to obtain the bills for Taxes directly from the appropriate taxing authority. The Escrow Fund and the payments of interest or principal or both, payable pursuant to the Note shall be added together and shall be paid as an aggregate sum by Borrower to Lender. Provided there are sufficient amounts in the Escrow Fund and no Event of Default exists, Lender shall be obligated to pay the Taxes and Insurance Premiums as they become due on their respective due dates on behalf of Borrower by applying the Escrow Fund to the payments of such Taxes and Insurance Premiums required to be made by Borrower pursuant to Sections 3.3 and 3.4 hereof. If the amount of the Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Sections 3.3 and 3.4 hereof, Lender shall, in its discretion, return any excess to Borrower or credit such excess against future payments to be made to the Escrow Fund. In allocating such excess, Lender may deal with the person shown on the records of Lender to be the owner of the Property. If the Escrow Fund is not sufficient to pay the items set forth in (a) and (b) above, Borrower shall promptly pay to Lender, upon demand, an amount which Lender shall reasonably estimate as sufficient to make up the deficiency. The Escrow Fund shall not constitute a trust fund and may be commingled with other monies held by Lender. Unless otherwise required by Applicable Laws (defined in Section 3.11), no earnings or interest on the Escrow Fund shall be payable to Borrower. Notwithstanding the foregoing, so long as (i) no Event of Default has occurred and is continuing, (ii) PETsMART or an Acce...
Escrow Fund. To provide a fund against which an Acquiror Indemnified Party may assert claims of indemnification under this Article VIII (an “Acquiror Indemnification Claim”), the Escrow Amount shall be deposited into escrow pursuant to the Escrow Agreement in accordance with Section 2.9. The Escrow Fund shall be held and distributed in accordance with this Article VIII and the Escrow Agreement. Each Acquiror Indemnification Claim shall be made only in accordance with this Article VIII and the Escrow Agreement. An Acquiror Indemnified Party shall seek monetary recourse for Acquiror Indemnification Claims solely by offset against the Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, none of the limitations set forth in this Article VIII shall apply to any action for specific performance, injunctive relief or other equitable remedy. Acquiror, Sub and the Company agree for all tax purposes: (i) the optionholders’ portion of the Escrow Fund shall be treated as compensation paid by the Company to the optionholders if and to the extent any portion of the optionholders’ portion of the Escrow Fund is actually distributed to the optionholders, (ii) the right of the stockholders to the stockholders’ portion of the Escrow Fund shall be eligible to be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provision of foreign, state or local law, as appropriate; (iii) Acquiror shall be treated as the owner of the Escrow Fund solely for tax purposes, and all interest and earnings earned from the investment and reinvestment of the Escrow Amount, or any portion thereof, shall be allocable to the Acquiror pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation Section 1.468B-8; (iv) if and to the extent any amount of the stockholders’ portion of the Escrow Fund is actually distributed to the stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; and (v) in no event shall the total amount of the Escrow Fund paid to the stockholders and optionholders under this Agreement exceed an amount to be designated by the Stockholder Representatives prior to the Closing. Clause (v) of the preceding sentence is intended to ensure that the right of the stockholders to the stockholders’ portion of the Escrow Fund is not treated as a contingent payment without a stated maximum selling price under Section 453 of the Code and t...
Escrow Fund. At the Closing the Shareholders receiving NEON Common Stock will be deemed to have received and consented to the deposit with the Escrow Agent (as defined below) of the Escrow Shares (plus any additional shares as may be issued upon any stock split, stock dividend or recapitalization effected by NEON after the Closing) pursuant to the Escrow Agreement attached hereto as Exhibit B hereto, without any act required on the part of any Shareholder. As soon as practicable after the Closing, the Escrow Shares, without any act required on the part of any Shareholder, will be deposited with an escrow agent acceptable to NEON and the Shareholder Representative (as defined in Section 7.2(h)(i) below) as Escrow Agent (the "Escrow Agent"), such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein and at NEON's cost and expense. The portion of the Escrow Fund contributed on behalf of each Shareholder shall be as set forth in Schedule 1.1. The Escrow Fund shall be comprised entirely of the Escrow Shares. The Escrow Fund shall be available to compensate NEON and its affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (hereinafter individually a "Loss" and collectively "Losses") incurred by NEON, its officers, directors, or affiliates as a result of any inaccuracy or breach of a representation or warranty of the Company or the Shareholders, contained in Articles II and III herein (as modified by the Company Disclosure Schedule), or any failure by the Company or the Shareholders to perform or comply with any covenant contained herein; provided that NEON shall not receive any shares from the Escrow Fund with respect to any individual Loss not exceeding $5,000 and shall not receive any shares from the Escrow Fund unless such Losses exceed $500,000 in the aggregate, at which time NEON shall receive shares from the Escrow Fund for such first $500,000 in Losses and to the extent of such excess. NEON and the Company each acknowledge that such Losses, if any, would relate to unasserted contingent liabilities existing at the Closing, which if resolved at the Closing would have led to a reduction in the aggregate Purchase Price. The foregoing limitations shall not apply to the obligations of the Shareholders to pay the income taxes described in Section 5.6.
Escrow Fund. Concurrently herewith, Parent, the Stockholder Representative and the Escrow Agent shall have executed and delivered an escrow agreement in form satisfactory to both Parent and Company (the "Escrow Agreement") under which Computershare Trust Company of Canada or another Person mutually satisfactory to Parent and the Company shall act as escrow agent (the "Escrow Agent") with respect to an escrow fund (the "Escrow Fund") for the purposes of securing the payment of the indemnification obligations of the Company Stockholders pursuant to Article VI. Parent shall deposit into such Escrow Fund promptly following the Closing the Aggregate Escrow Amount. The Merger Consideration payable to the Company Stockholders at the Closing but for this Section 2.3(d) shall be reduced by an amount equal to each Stockholder's Pro Rata Portion as set forth opposite each Stockholder's name on Schedule 2.3(d) hereto. Upon the termination of the Escrow Fund in accordance with the Escrow Agreement, each Company Stockholder shall receive such Stockholder's Pro Rata Portion previously withheld from the Merger Consideration otherwise payable to such Company Stockholder less a pro rata amount of any indemnification obligations, if any, pursuant to Article VI, paid from the Escrow Fund. The adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, by the stockholders of Company shall constitute approval of the Escrow Agreement and all arrangements related thereto, including the depositing of the Aggregate Escrow Amount into the Escrow Fund.
Escrow Fund. (a) At the Effective Time, Acquirer shall withhold the Cash Escrow Amount from the Merger Consideration payable pursuant to Section 1.3(a) and shall deposit the Cash Escrow Amount with Xxxxx Fargo Bank, N.A. (or another institution selected by Acquirer and reasonably satisfactory to the Company) as escrow agent (the “Escrow Agent”) (the aggregate amount of cash so held by the Escrow Agent from time to time, the “Escrow Fund”), which Escrow Fund shall be governed by this Agreement and the escrow agreement (the “Escrow Agreement”) in the form attached hereto as Exhibit M with such changes as Acquirer and the Stockholders’ Agent may agree in writing. The Escrow Fund shall constitute security for the benefit of Acquirer (on behalf of itself or any other Indemnified Person) with respect to any Indemnifiable Damages pursuant to the indemnification obligations of the Converting Holders under this Article VIII. The Escrow Agent shall hold the Escrow Fund until 11:59 p.m. Pacific time on the date that is 12 months after the Effective Time (the “Escrow Release Date”). The Converting Holders shall not receive interest or other earnings on the cash in the Escrow Fund. The parties further agree that all income received with respect to the Cash Escrow Amount will be reported as allocated to Acquirer until the distribution of the Cash Escrow Amount (or portions thereof) is determined and thereafter to Acquirer and the Converting Holders in accordance with their respective interests in the Cash Escrow Amount. Any portion of any payments or distributions to the Converting Holders that is treated as interest under Section 483 of Code or otherwise shall be treated as portfolio interest under Section 871(h) of the Code. The parties further agree that immediately following the Effective Time, the Cash Consideration deposited in the Escrow Fund will initially be Unvested Cash to the maximum extent possible, provided, however, that the Unvested Cash deposited in the Escrow Fund shall vest prior to vesting of any Unvested Cash that is not deposited in the Escrow Fund. Neither the Escrow Fund (including any portion thereof) nor any beneficial interest therein may be pledged, subjected to any Encumbrance, sold, assigned or transferred by any Converting Holder or be taken or reached by any legal or equitable process in satisfaction of any debt or other Liability of any Converting Holder, in each case prior to the distribution of the Escrow Fund to any Converting Holder in accordance...
Escrow Fund. “Escrow Fund” shall mean the escrow fund established pursuant to the Escrow Agreement.
Escrow Fund. 11 Section 3.6
Escrow Fund. 16 5.2 Indemnification..............................................................................16 5.3
Escrow Fund. At the Effective Time the shareholders of the ----------- Company will be deemed to have received and deposited with the Escrow Agent (as defined below) the Escrow Amount without any act of any shareholder. As soon as practicable after the Effective Time, the Escrow Amount, without any act of any shareholder, will be deposited with Chase Trust Company of California, (or other institution acceptable to Parent and the Shareholder Representative (as defined in Section 7.2(g) below)) as Escrow Agent (the "Escrow Agent"), such deposit to ------------ constitute an escrow fund (the "Escrow Fund") to be governed by the terms set ----------- forth herein and at Parent's cost and expense. The portion of the Escrow Amount contributed on behalf of each shareholder of the Company shall be in proportion to the aggregate portion of the Merger Consideration to which such holder would otherwise be entitled under Section 1.6(a). The Escrow Fund shall be available to compensate Parent, Sub, and its affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses, and expenses of investigation and defense (hereinafter individually a "Loss" and collectively "Losses") incurred by Parent, Sub, its ---- ------ officers, directors, or affiliates (including the Surviving Corporation) directly or indirectly as a result of (i) any inaccuracy or breach of a representation or warranty of the Company contained in Article II herein (as modified by the Company Disclosure Schedule), or (ii) any failure by the Company to perform or comply with any covenant contained herein or (iii) any breach of any Shareholder Certificate. Parent, Sub, and the Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the aggregate Merger Consideration. Subject to Section 8.3 below, nothing herein shall limit the liability of the Company for any breach of any representation, warranty or covenant if the Merger does not close. Parent may not receive any shares from the Escrow Fund unless and until Officer's Certificates (as defined in paragraph (d) below) identifying Losses in excess of $25,000 have been delivered to the Escrow Agent as provided in paragraph (d); provided, however, that with respect to Losses with respect to failure to comply with Section 5.12 or with respect to breaches of Sectio...
Escrow Fund. All Cash Investments received by the Issuer or Broker in connection with the sale of the Shares shall be deposited with the Escrow Agent. The Escrow Agent shall hold, maintain and secure the Escrow Funds in a non-interest bearing account subject to the terms, conditions and restrictions herein described. The Escrow Agent shall have no duty to invest Escrow Funds and Escrow Funds shall remain uninvested. Escrow Agent shall release Escrow Funds only in accordance with the instructions as set forth in Exhibit A, or as otherwise expressly set forth in this Agreement. The Issuer and Broker understand and agree that all funds received by Escrow Agent are subject to collection requirements of presentment and final payment, and that the funds represented thereby cannot be drawn upon or disbursed until such time as final payment has been made and is no longer subject to dishonor. Upon receipt of funds, Escrow Agent shall process each check, ACH or wire transfer for collection and the proceeds thereof shall be held as part of the Escrow Funds until disbursed in accordance with Exhibit A hereof. If upon presentment for payment, any check, ACH or wire transfer is dishonored, Escrow Agent’s sole obligation shall be to notify the Issuer and Broker of such dishonor and to return such payment to Issuer or Broker, whichever the case may be. Notwithstanding the foregoing, if for any reason any Cash Investment Instrument is uncollectible after payment or disbursement of the funds represented thereby has been made by Escrow Agent, Issuer shall immediately reimburse Escrow Agent upon receipt from Escrow Agent of written notice thereof. The Escrow Agent shall have no duty to invest Escrow Funds and Escrow Funds shall remain uninvested.
