Common use of Payment into Escrow Clause in Contracts

Payment into Escrow. (a) Buyer shall have the right to deliver all or a portion of any Earnout Payment then due and payable to the Sellers (other than Pentland) to the Escrow Agent, to be held under the Seller Escrow Agreement, in the following circumstances: (i) the amount delivered does not exceed the amount of bona fide claims made by the Buyer Indemnified Persons against the Sellers (other than Pentland) under Article X of the Purchase Agreement for which there are then insufficient funds held under the Seller Escrow Agreement, (ii) the indemnification claims as to which a portion of the Earnout Payment is being delivered to the Escrow Agent are of a kind that may be paid from funds held under the Seller Escrow Agreement in accordance with its terms and (iii) the portion of the Earnout Payment delivered to the Escrow Agent in respect of a Seller (other than Pentland) relates to indemnification claims for which that Seller may then be liable under the terms of the Purchase Agreement. Any additional funds delivered to the Escrow Agent in accordance with Section 10.1(f) of the Purchase Agreement and this Section 3.2 shall be accompanied by a notice containing an allocation of such funds among the Sellers (other than Pentland), and upon delivery to the Escrow Agent shall be and become part of each named Seller’s Allocated Amount (as defined in the Seller Escrow Agreement) in the amount(s) specified in such notice. (b) Buyer shall have the right to deliver all or a portion of any Earnout Payment then due and payable to Pentland to the Escrow Agent, to be held under the Pentland Escrow Agreement, in the following circumstances: (i) the amount delivered does not exceed the amount of bona fide claims made by the Buyer Indemnified Persons against Pentland under Article X of the Purchase Agreement for which there are then insufficient funds held under the Pentland Escrow Agreement, (ii) the indemnification claims as to which a portion of the Earnout Payment is being delivered to the Escrow Agent are of a kind that may be paid from funds held under the Pentland Escrow Agreement in accordance with its terms and (iii) the portion of the Earnout Payment delivered to the Escrow Agent relates to indemnification claims for which Pentland may then be liable under the terms of the Purchase Agreement. Except as set forth in this Section, Buyer shall have no right of set off against any Earnout Payment.

Payment into Escrow. In the event that the Buyer or Global has made a claim for indemnification under this Section 8 as an Indemnified Party that has not been finally resolved, then, to the extent that any payments under the Buyer Notes or the Global Guaranty are outstanding and payable, the Buyer or Global may, at its option, rather than making such payments under the Buyer Notes or the Global Guaranty, pay any amounts so payable, up to the maximum amount of the Buyer’s or Global’s good faith claim for Damages it or they would be entitled to as a result of such claim for indemnification hereunder (athe “Maximum Holdback Amount”), to US Bank or another escrow agent reasonably mutually acceptable to Global and Timeline (the “Indemnification Escrow Agent”) to hold such amounts in escrow pending resolution of the claim for indemnification hereunder. Timeline and Global and/or the Buyer, as applicable, shall enter into a reasonable escrow agreement with the Indemnification Escrow Agent providing for such escrow on terms otherwise outlined herein and such other reasonable and customary terms as the Indemnification Escrow Agent may include in its form of escrow agreement, including reasonable fees and broad indemnification by the parties thereto of the Indemnification Escrow Agent. If the claim for indemnification is resolved in favor of the Indemnified Party to any extent, then such Indemnified Party shall send a written notice to the Escrow Agent, with a copy to Timeline, instructing the Escrow Agent to pay, out of the funds then held in escrow, the amount of Damages (and other fees or expenses awarded to the Indemnified Party in the resolution of the claim for indemnification) (the “Awarded Damages”). If Timeline does not object to such written notice by written notice to the Indemnification Escrow Agent with a copy to the Indemnified Party within ten (10) business days (a “Dispute Notice”), then the Indemnification Escrow Agent shall release the funds in escrow, up to the amount of the Awarded Damages, to the Indemnified Party. If the amount of the Awarded Damages is less than the amounts in escrow, then the Indemnification Escrow Agent shall pay any escrowed funds remaining after payment of the Awarded Damages to Timeline. If the amount of the Awarded Damages is greater than the amounts in escrow, then the Buyer or Global shall have the right to deliver all set off such deficiency against any payments then owing or owing at any time in the future under the Buyer Notes or the Global Guaranty. If the claim for indemnification is not resolved to any extent in favor of the Indemnified Party hereunder, then Timeline may send a portion of any Earnout Payment then due and payable written notice to the Sellers (other than Pentland) to the Indemnification Escrow Agent, with a copy to be held under Global, instructing the Seller Indemnification Escrow Agreement, Agent to release the funds then in the following circumstances: (i) the amount delivered escrow to Timeline. If Global does not exceed the amount of bona fide claims made object to such written notice by the Buyer Indemnified Persons against the Sellers (other than Pentland) under Article X of the Purchase Agreement for which there are then insufficient funds held under the Seller Escrow Agreement, (ii) the indemnification claims as to which a portion of the Earnout Payment is being delivered written notice to the Escrow Indemnification Agent are of (with a kind that may be paid from funds held under the Seller Escrow Agreement in accordance with its terms and copy to Timeline) within ten (iii10) the portion of the Earnout Payment delivered to the Escrow Agent in respect of business days (also, a Seller (other than Pentland) relates to indemnification claims for which that Seller may then be liable under the terms of the Purchase Agreement. Any additional funds delivered to the Escrow Agent in accordance with Section 10.1(f) of the Purchase Agreement and this Section 3.2 shall be accompanied by a notice containing an allocation of such funds among the Sellers (other than Pentland“Dispute Notice”), and upon delivery to then the Indemnification Escrow Agent shall be release all funds then in escrow to Timeline. In the event that either Timeline or Global delivers a Dispute Notice, then the Indemnification Escrow Agent shall continue to hold the funds in escrow and become part of each named Seller’s Allocated Amount (as defined in Timeline and the Seller Escrow Agreement) in Indemnified Party seeking indemnification hereunder shall promptly seek to have the amount(s) specified in such notice. (b) Buyer shall have disagreement regarding the right to deliver all the funds in escrow determined in the manner by which other disputes under this Agreement are to be determined or in a portion manner otherwise reasonably acceptable to both Timeline and Global. Unless settled by mutual agreement thereafter, the prevailing party in such subsequent litigation, arbitration or other dispute resolution mechanism shall be entitled to reasonable costs and fees incurred in connection with such subsequent litigation, arbitration or other dispute resolution, including without limitation attorneys’ fees, witness or expert fees, costs of any Earnout Payment then due production and, if reasonably necessary, reasonable travel costs. Upon determination of such dispute, the party prevailing in such dispute shall notify the Indemnification Escrow Agent as provided above and payable to Pentland such notification shall again be subject to the Escrow Agent, provisions outlined above. Any interest accruing on funds held in escrow shall be distributed to the parties entitled to receive funds distributed from escrow in the same proportion as the escrowed funds are to be held under the Pentland Escrow Agreement, in the following circumstances: (i) the amount delivered does not exceed the amount of bona fide claims made by the Buyer Indemnified Persons against Pentland under Article X of the Purchase Agreement for which there are then insufficient funds held under the Pentland Escrow Agreement, (ii) the indemnification claims as to which a portion of the Earnout Payment is being delivered to the Escrow Agent are of a kind that may be paid from funds held under the Pentland Escrow Agreement in accordance with its terms and (iii) the portion of the Earnout Payment delivered to the Escrow Agent relates to indemnification claims for which Pentland may then be liable under the terms of the Purchase Agreement. Except as set forth in this Section, Buyer shall have no right of set off against any Earnout Paymentso distributed.