Common use of Retention Amount Clause in Contracts

Retention Amount. FIRST RELEASE DATE 2.1. Subject to paragraphs 2.2 and 2.3 (inclusive), on the First Release Date the Seller and the Purchaser shall instruct the Escrow Agents to release to the Seller an amount equal to the First Retention Release Amount. 2.2. The First Retention Release Amount shall have deducted from it an amount equal to: 2.2.1. any Agreed Claim Amount(s) in respect of any Substantiated Claim(s) to the extent not already paid to the Purchaser; 2.2.2. any Agreed Estimate Amount(s) in respect of Relevant Claims that have not become Substantiated Claims; and 2.2.3. any Purchaser’s Estimate Amount(s) in respect of Relevant Claims that have not yet been dealt with under paragraph 7 of this Schedule 7 or in respect of which there is no Agreed Estimate Amount. 2.3. Any amounts deducted from the First Retention Release Amount shall be retained in the Escrow Account until they are determined or paid to the Purchaser or the Seller in accordance with the provisions of this Schedule 7. 2.4. If, subsequent to the First Release Date, any amounts deducted from the First Retention Release Amount pursuant to paragraphs 2.2.2 or 2.2.3 above are in excess respectively of the Agreed Claim Amount or Agreed Estimate Amount applicable to that Relevant Claim, the Seller and the Purchaser shall instruct the Escrow Agents to release to the Seller an amount equal to the amount of such excess provided that, at such time, there are no other Agreed Claim Amounts or Agreed Estimate Amounts or unresolved Purchaser’s Estimate Amounts referable to outstanding Relevant Claims commenced before the First Release Date which exceed the amount deducted from the First Retention Release Amount to the extent that it continues to be held in the Escrow Account. As and when such Relevant Claims are resolved or lapse the calculation referred to in the previous sentence shall be repeated to determine whether sums may at that point be released to the Seller. 2.5. If, subsequent to the First Release Date, any amounts deducted from the First Retention Release Amount pursuant to paragraphs 2.2.2 or 2.2.3 above relate to Relevant Claims which lapse, the Seller and the Purchaser shall instruct the Escrow Agents to release to the Seller an amount equal to the amount deducted provided that, at such time, there are no other Agreed Claim Amounts or Agreed Estimate Amounts or unresolved Purchaser’s Estimate Amounts referable to outstanding Relevant Claims commenced before the First Release Date which exceed the amount deducted from the First Retention Release Amount to the extent that it continues to be held in the Escrow Account. As and when such Relevant Claims are resolved or lapse the calculation referred to in the previous sentence shall be repeated to determine whether sums may at that point be released to the Seller.

Retention Amount. FIRST FINAL RELEASE DATE 2.15.1. Subject to paragraphs 2.2 and 2.3 5.2 to 5.6 (inclusive), on the First Final Release Date the Seller and the Purchaser shall instruct the Escrow Agents to release to the Seller the amount remaining in the Escrow Account. 5.2. If, on the Final Release Date, there are any Agreed Estimate Amounts in respect of Relevant Claims which have not become Substantiated Claims, an amount equal to the First Retention Release Amount. 2.2. The First Retention Release Amount shall have deducted from it an lesser of the aggregate of the Agreed Estimate Amounts and the amount equal to: 2.2.1. any Agreed Claim Amount(s) in respect of any Substantiated Claim(s) standing to the extent not already paid to credit of the Purchaser; 2.2.2. any Agreed Estimate Amount(s) in respect of Relevant Claims that have not become Substantiated Claims; and 2.2.3. any Purchaser’s Estimate Amount(s) in respect of Relevant Claims that have not yet been dealt with under paragraph 7 of this Schedule 7 or in respect of which there is no Agreed Estimate Amount. 2.3. Any amounts deducted from the First Retention Release Amount Escrow Account shall be retained in the Escrow Account until they are determined or paid to the Purchaser or the Seller in accordance with the provisions of this Schedule 7. 2.4. If, subsequent to the First Release Date, any amounts deducted from the First Retention Release Amount pursuant to paragraphs 2.2.2 or 2.2.3 above are in excess respectively of the Agreed Claim Amount or Agreed Estimate Amount applicable to that Relevant Claim, and the Seller and the Purchaser shall instruct the Escrow Agents to release to the Seller the remaining balance in the Escrow Account. 5.3. If, on the Final Release Date, an amount has been retained in the Escrow Account in respect of an Agreed Estimate Amount or Agreed Estimate Amounts in respect of a Relevant Claim or Relevant Claims and that Relevant Claim or any of those Relevant Claims becomes a Substantiated Claim or Substantiated Claims: Schedule 7 – Retention Amount and Escrow Account 5.3.1. if an Agreed Claim Amount in respect of such Substantiated Claim is less than the Agreed Estimate Amount referable to such Substantiated Claim, the Purchaser and the Seller shall: (a) instruct the Escrow Agents to release from the Escrow Account to the Purchaser an amount equal to the amount of such excess Agreed Claim Amount; and (b) instruct the Escrow Agents to release from the Escrow Account to the Seller the difference between the Agreed Claim Amount and the Agreed Estimate Amount provided that, at such time, that there are no other unpaid Agreed Claim Amounts or Agreed Estimate Amounts or unresolved Purchaser’s Estimate Amounts referable to outstanding Relevant Claims commenced before the First Release Date which in total exceed the amount deducted from the First Retention Release Amount to the extent that it continues to be held in the Escrow Account; 5.3.2. As and when if an Agreed Claim Amount in respect of such Relevant Claims are resolved or lapse the calculation referred to in the previous sentence shall be repeated to determine whether sums may at that point be released Substantiated Claim is equal to the Seller. 2.5. If, subsequent Agreed Estimated Amount referable to the First Release Date, any amounts deducted from the First Retention Release Amount pursuant to paragraphs 2.2.2 or 2.2.3 above relate to Relevant Claims which lapsesuch Substantiated Claim, the Seller Purchaser and the Purchaser Seller shall instruct the Escrow Agents to release from the Escrow Account an amount equal to the Agreed Claim Amount to the Purchaser; 5.3.3. if an Agreed Claim Amount in respect of such Substantiated Claim is more than the Agreed Estimate Amount referable to such Substantiated Claim and the Agreed Claim Amount is equal to or more than the amount standing to the credit of the Escrow Account, the Purchaser and the Seller shall instruct the Escrow Agents to release the remaining funds in the Escrow Account to the Purchaser; or 5.3.4. if an Agreed Claim Amount in respect of such Substantiated Claim is more than the Agreed Estimate Amount referable to such Substantiated Claim and the amount standing to the credit of the Escrow Account is more than the Agreed Claim Amount, the Purchaser and the Seller shall instruct the Escrow Agent to release to the Purchaser an amount equal to the Agreed Estimate Amount. 5.4. If the Purchaser has not commenced proceedings against the Seller (by proper issue and valid service) within six months of the giving of a Relevant Claim Notice, such Relevant Claim shall be deemed to have lapsed. 5.5. Following the last Relevant Claim in respect of which an Agreed Estimate Amount was retained in the Escrow Account on the Final Release Day becoming a Substantiated Claim and payment under paragraph 5.3 having been made, the Purchaser and the Seller shall instruct the Escrow Agent to release to the Seller any remaining amounts standing to the credit of the Escrow Account. 5.6. If, after an amount has been released to the Purchaser from the Escrow Account, the Purchaser or a member of the Purchaser’s Group subsequently recovers from a third party (including a Tax Authority) (whether by payment, discount, credit, relief or otherwise) a cash sum which is referable to that amount then the Purchaser shall be obliged to pay such cash sum (less any reasonable costs incurred in making the recovery) to the Seller, save that if the Purchaser has received the recovery prior to the Final Release Date, unless such amount is referable to a reduction in the First Release Retention Amount or the Second Release Retention Amount, the Purchaser shall be obliged to pay such amount into the Escrow Account and the provisions of this Schedule 7 shall apply. 5.7. For the avoidance of doubt, if, on the Final Release Date or at any time after the Final Release Date, there are sums in the Escrow Account which are no longer referable to a Relevant Claim (whether because the Relevant Claim has been withdrawn, lapsed or otherwise) or a Substantiated Claim, including without limitation any sums paid into the Escrow Account pursuant to paragraph 5.6, the Purchaser and the Seller shall instruct the Escrow Agent to release to the Seller an amount equal to the amount deducted provided that, at any such time, there are no other Agreed Claim Amounts or Agreed Estimate Amounts or unresolved Purchaser’s Estimate Amounts referable to outstanding Relevant Claims commenced before the First Release Date which exceed the amount deducted from the First Retention Release Amount to the extent that it continues to be held in the Escrow Account. As and when such Relevant Claims are resolved or lapse the calculation referred to in the previous sentence shall be repeated to determine whether sums may at that point be released to the Sellersum.

Retention Amount. FIRST RELEASE DATE11.1 The Retention Amount shall be held by the Seller in the Retention Account in its name from Completion and such amount shall not be distributed or otherwise paid out of that account by the Seller to any other person other than in accordance with this Clause 11. 2.1. Subject 11.2 On the Three Months Date, the Seller shall be entitled to paragraphs 2.2 have released from the Retention Account the sum of €1,500,000 less: (a) the amounts of all claims under the Warranties or the Tax Covenant in respect of which payment has been made to the Buyers; and (b) the amount of all claims under the Warranties or the Tax Covenant then outstanding and 2.3 (inclusive)in respect of which notifications have been delivered to the Seller on or prior to the Three Months Date in accordance with this Agreement. 11.3 On the Expiry Date, the Seller shall be entitled to have released from the Retention Account the amount standing to the credit of the Retention Account less the amount of all claims under the Warranties or the Tax Covenant then outstanding and in respect of which notifications have been delivered to the Seller on or prior to the Expiry Date in accordance with this Agreement 11.4 Without prejudice to Clause 8.17, any sum standing to the balance of the Retention Account in respect of a claim under the Warranties or the Tax Covenant which is based upon a liability which is contingent only, shall be released to the Seller on the First Release earlier of (i) such claim being determined, settled or withdrawn and (ii) the date falling the second anniversary of the Expiry Date if such contingent liability has not become an actual liability and has not become due and payable by that date, in which case the Seller shall have no ongoing liability for such claim and such claim shall be deemed irrevocably withdrawn. 11.5 After the Expiry Date, the remaining sums standing to the balance of the Retention Account shall be released, less any amounts paid or payable to the Buyers pursuant to Clause 11.6, to the Seller on the date on which every claim under the Warranties or the Tax Covenant made by the Buyers prior to Expiry Date has been determined, settled or withdrawn and the Buyers agree to procure the release of the Retention Charge to permit such release of the Retention Amount to the Seller. 11.6 If a claim or claims under the Warranties or the Tax Covenant has been made by the Buyers prior to the Expiry Date, the Seller may not distribute, release or pay any part of the amounts standing to the credit of the Retention Account to any person if such distribution, release or payment would result in the amounts standing to the credit of the Retention Account being less than the amounts of the claim or claims under the Warranties or the Tax Covenant, other than to the Buyers. If an amount payable to the Buyers in respect of a claim under the Warranties or the Tax Covenant is agreed between the Seller and the Purchaser shall instruct the Escrow Agents Buyers or is finally determined by a Court of competent jurisdiction to release be payable to the Seller an amount equal to Buyers, the First Retention Release Amount. 2.2. The First Retention Release Amount shall have deducted from it an amount equal to: 2.2.1. any Agreed Claim Amount(s) be used to discharge (in whole or, in respect of any Substantiated Claim(sa claim under the Title Warranties, if such amount is greater than the Retention Amount, in part) the payment of such amount to the extent not already paid Buyers. 11.7 If the Seller disputes the merits of a claim made by any of the Buyers under the Warranties or the Tax Covenant, it shall notify the Buyers thereof in writing. If such dispute is unresolved between the Buyers and the Seller within 15 Business Days of the date of receipt by the Buyers of such notification, the Seller may refer the dispute to the PurchaserIndependent Counsel. The Independent Counsel shall act in resolving any dispute on the following basis: (a) the Independent Counsel shall act as an expert and not as an arbitrator and the provisions of the Arbitration Acts 1954 to 1998 shall not apply to it or its determination; 2.2.2. (b) The Independent Counsel shall be requested to give his opinion on whether ,on the balance of probabilities, a motion to dismiss any Agreed Estimate Amount(sproceedings relating to such claim on the grounds that the claim is either frivolous, vexatious or that no reasonable cause of action is disclosed would succeed and notify the Buyers and the Seller of his decision within 30 Business Days of the reference (or by such later date as may be agreed by such Independent Counsel with each of the Buyers and the Seller); (c) in respect the Seller and Buyers shall be entitled to make one written submission each to the Independent Counsel within ten days of Relevant Claims that have not become Substantiated Claimshis appointment and shall respectively provide all the information relating to the Group Companies which the Independent Accountant reasonably requires; and 2.2.3. any Purchaser’s Estimate Amount(s(d) in respect the fees and disbursements of Relevant Claims that have not yet been dealt with under paragraph 7 of this Schedule 7 or in respect of which there is no Agreed Estimate Amount. 2.3. Any amounts deducted from the First Retention Release Amount Independent Counsel shall be retained in the Escrow Account until they are determined or paid to the Purchaser or by the Seller in accordance with if the provisions Independent Counsel determines that , on the balance of this Schedule 7. 2.4probabilities, a motion to dismiss any proceedings relating to such claim on the grounds that such claim is either frivolous, vexatious or that no reasonable cause of action is disclosed would not succeed and shall be paid by the Buyers if the Independent Counsel determines that , on the balance of probabilities, a motion to dismiss any proceedings relating to such claim on the grounds that the claim is either frivolous, vexatious or that no reasonable cause of action is disclosed would succeed. If, subsequent to the First Release Date, any amounts deducted from the First Retention Release Amount pursuant to paragraphs 2.2.2 or 2.2.3 above are in excess respectively Other than such fees and disbursements of the Agreed Claim Amount or Agreed Estimate Amount applicable to that Relevant ClaimIndependent Counsel, the Seller and the Purchaser Buyers shall instruct each be responsible for their own costs and expenses incurred in connection with any actions taken pursuant to this Clause 5. (e) If the Escrow Agents Independent Counsel determines that, on the balance of probabilities, a motion to dismiss any proceedings relating to a Claim on the grounds that the Claim is frivolous, vexatious or that no reasonable cause of action is disclosed would succeed, such Claim shall be deemed to have been irrevocably withdrawn and lapsed and such Claim shall be deemed to be “withdrawn” for the purposes of the provisions of this Clause 11. 11.8 Upon the release of any part of the Retention Amount to the Seller pursuant to this Clause 11, the Buyers agree to pay an amount to the Seller equal to 7% per annum on that amount released for the amount period from Completion until the date of such excess provided that, at such time, there are no other Agreed Claim Amounts or Agreed Estimate Amounts or unresolved Purchaser’s Estimate Amounts referable to outstanding Relevant Claims commenced before the First Release Date which exceed the amount deducted from the First Retention Release Amount to the extent that it continues to be held in the Escrow Account. As and when such Relevant Claims are resolved or lapse the calculation referred to in the previous sentence shall be repeated to determine whether sums may at that point be released release to the Seller. 2.5. If, subsequent 11.9 Prior to the First Release Date, any amounts deducted from date upon which the First Retention Release Amount pursuant or part of it is to paragraphs 2.2.2 or 2.2.3 above relate to Relevant Claims which lapse, the Seller and the Purchaser shall instruct the Escrow Agents to release to the Seller an amount equal to the amount deducted provided that, at such time, there are no other Agreed Claim Amounts or Agreed Estimate Amounts or unresolved Purchaser’s Estimate Amounts referable to outstanding Relevant Claims commenced before the First Release Date which exceed the amount deducted from the First Retention Release Amount to the extent that it continues to be held in the Escrow Account. As and when such Relevant Claims are resolved or lapse the calculation referred to in the previous sentence shall be repeated to determine whether sums may at that point be released to the SellerSeller pursuant to this Clause 11 the Seller shall not close the Retention Account, finalise or conclude any dissolution, liquidation or winding up or enter into any agreement with its creditors or any class thereof or any other person in respect of the funds held in the Retention Account or take any other action which would prejudice the ability of the Buyers to receive any payment from the Retention Account which they may become entitled to receive pursuant to this Clause 11, it being understood that nothing in this Agreement shall prevent the Seller from commencing any dissolution, liquidation or winding up. 11.10 In addition to the Retention Amount, the Seller agrees that it shall not make any distribution of the Consideration prior to 1 January 2010.

Retention Amount. FIRST SECOND RELEASE DATE 2.13.1. Subject to paragraphs 2.2 3.2 and 2.3 3.3 (inclusive), on the First Second Release Date the Seller and the Purchaser shall instruct the Escrow Agents to release to the Seller an amount equal to the First Second Retention Release Amount. 2.23.2. The First Second Retention Release Amount shall have deducted from it an amount equal to: 2.2.1. 3.2.1 any Agreed Claim Amount(s) in respect of any Substantiated Claim(s) to the extent not already paid to the Purchaser; 2.2.2. 3.2.2 any Agreed Estimate Amount(s) in respect of Relevant Claims that have not become Substantiated ClaimsClaims to the extent such amounts have not already been deducted from the First Retention Release Amount; andand Schedule 7 – Retention Amount and Escrow Account 2.2.3. 3.2.3 any Purchaser’s Estimate Amount(s) in respect of Relevant Claims that have not yet been dealt with under paragraph 7 of this Schedule 7 or in respect of which there is no Agreed Estimate Amount to the extent such amounts have not already been deducted from the First Retention Amount. 2.33.3. Any amounts deducted from the First Second Retention Release Amount shall be retained in the Escrow Account until they are determined or paid to the Purchaser or the Seller in accordance with the provisions of this Schedule 7. 2.43.4. If, subsequent to the First Second Release Date, any amounts deducted from the First Second Retention Release Amount pursuant to paragraphs 2.2.2 3.2.2 or 2.2.3 3.2.3 above are in excess respectively of the Agreed Claim Amount or Agreed Estimate Amount applicable to that Relevant Claim, the Seller and the Purchaser shall instruct the Escrow Agents to release to the Seller an amount equal to the amount of such excess provided that, at such time, there are no other Agreed Claim Amounts or Agreed Estimate Amounts or unresolved Purchaser’s Estimate Amounts referable to outstanding Relevant Claims commenced before the First Second Release Date which exceed the aggregate of the amount deducted from the First Retention Release Amount (to the extent that it continues to be held in the Escrow Account) and the Second Retention Release Amount (to the extent that it continues to be held in the Escrow Account). As and when such Relevant Claims are resolved or lapse the calculation referred to in the previous sentence shall be repeated to determine whether sums may at that point be released to the Seller. 2.53.5. If, If subsequent to the First Second Release Date, any amounts deducted from the First Second Retention Release Amount pursuant to paragraphs 2.2.2 3.2.2 or 2.2.3 3.2.3 above relate to Relevant Claims which lapse, the Seller and the Purchaser shall instruct the Escrow Agents to release to the Seller an amount equal to the amount deducted provided that, at such time, there are no other Agreed Claim Amounts or Agreed Estimate Amounts or unresolved Purchaser’s Estimate Amounts referable to outstanding Relevant Claims commenced before the First Second Release Date which exceed the aggregate of the amount deducted from the First Retention Release Amount (to the extent that it continues to be held in the Escrow Account) and the Second Retention Release Amount (to the extent that it continues to be held in the Escrow Account). As and when such Relevant Claims are resolved or lapse the calculation referred to in the previous sentence shall be repeated to determine whether sums may at that point be released to the Seller.