Common use of Application of Deposit Clause in Contracts

Application of Deposit. The cash deposited into Escrow pursuant to Section 2(a) above, together with all interest earned thereon, shall sometimes collectively be referred to herein as the “Deposit.” If this Agreement is terminated (i) as a result of Buyer’s timely disapproval of any of the contingencies set forth in Section 3 below, (ii) by reason of the failure of any condition precedent in favor of Buyer as set forth in this Agreement, or (iii) for any other reason except for a default under this Agreement solely on the part of Buyer, then the Deposit shall be released by Escrow Holder (as hereinafter defined) to Buyer upon demand by Buyer, after which, neither Seller nor Buyer shall have any further rights or obligations hereunder except those obligations which specifically survive the termination of this Agreement. If the purchase and sale of the Property is consummated as contemplated hereunder, the Deposit shall be applied against the Purchase Price at the Close of Escrow and shall be paid to Seller or disbursed to the order of Seller at the Close of Escrow. All Deposits made by Buyer pursuant to this Section 2 or Section 5 below shall be placed in a federally insured interest-bearing account by Escrow Holder upon terms acceptable to Buyer to be held by Escrow Holder in trust for the benefit of Buyer. If the purchase and sale of the Property is not consummated because of a default under this Agreement solely on the part of Buyer, the Deposit shall be non-refundable to Buyer and shall constitute the liquidated damages due to Seller pursuant to, and subject to the exception set forth in, Section 14 below.

Application of Deposit. The So much of the cash sums as have been actually deposited into Escrow at any given time pursuant to Section 2(aSections 2(b)(i) and 2(b)(ii) above, together with all interest earned thereon, shall sometimes collectively be referred to herein as the “Deposit.” If this Agreement is terminated after the Due Diligence Expiration Date (i) as a result of Buyer’s timely disapproval (or deemed disapproval) of any of the contingencies set forth in Section 3 below, (ii) by reason of the failure of any condition precedent in favor of Buyer as set forth in this Agreement, or (iii) for any other reason except for a default under this Agreement solely on the part of Buyer, then the Deposit shall be released by Escrow Holder (as hereinafter defined) to Buyer immediately upon demand written instructions signed by Buyer and Seller; provided, however, that Seller shall not unreasonably withhold, condition, or delay its approval of such release. If this Agreement is terminated on or prior to the Due Diligence Expiration Date (i) as a result of Buyer’s timely disapproval (or deemed disapproval) of any of the contingencies set forth in Section 3 below, (ii) by reason of the failure of any condition precedent in favor of Buyer as set forth in this Agreement, or (iii) for any other reason except for a default under this Agreement solely on the part of Buyer, then the Deposit shall be released by Escrow Holder to Buyer immediately upon written instructions signed by Buyer, after which, neither Seller nor Buyer shall have any further rights or obligations hereunder except those obligations which specifically survive the termination of this Agreement. If the purchase and sale of the Property is consummated as contemplated hereunder, the Deposit shall be applied against the Purchase Price at the Close of Escrow and shall be paid to Seller or disbursed to the order of Seller at the Close of Escrow. All Deposits made by Buyer pursuant to this Section 2 or Section 5 below shall be placed in a federally insured interest-bearing account by Escrow Holder upon terms acceptable to Buyer to be held by Escrow Holder in trust for the benefit of Buyer. If this Agreement is: (i) terminated by Seller (to the extent Seller is permitted to terminate this Agreement pursuant to its terms) because of a default under this Agreement on the part of Buyer, or (ii) if the purchase and sale of the Property is not consummated because of a default under this Agreement solely on the part of Buyer, then the Deposit shall be non-refundable to Buyer and shall be released by Escrow Holder to Seller and shall constitute the liquidated damages due to Seller pursuant to, and subject to Section 16(m) below. Notwithstanding anything in this Agreement to the exception set forth incontrary, Section 14 belowBuyer and Seller agree that a portion of the Deposit equal to One Hundred Dollars ($100) (the “Independent Consideration”) shall be earned by Seller upon full execution and delivery of this Agreement. Buyer and Seller hereby mutually acknowledge and agree that the Independent Consideration represents adequate bargained for consideration for Seller’s execution and delivery of this Agreement and Buyer’s right to have inspected the Property pursuant to the terms of this Agreement. Upon the Closing or earlier termination of this Agreement, the Independent Consideration shall be paid to Seller. Accordingly, any provision of this Agreement contemplating a return of the Deposit to Buyer, shall mean and refer to the Deposit less the Independent Consideration.

Application of Deposit. The cash deposited into In the event that Buyer terminates this Agreement after the Effective Date in conformity with Buyer’s rights hereunder, Escrow Agent shall, immediately upon receipt of written notice thereof from both Buyer and Seller Representative, on behalf of the Seller Parties, to Escrow Agent deliver the Deposit to Buyer; provided, however, that if Buyer terminates this Agreement pursuant to the terms and conditions of Section 2(a) above2.4 hereof on or before the Feasibility Period Expiration Date, together with all interest earned thereon, then Escrow Agent shall sometimes collectively be referred return the Deposit to herein as the “Deposit.” If this Agreement is terminated (i) as a result Buyer upon its receipt of such Buyer’s timely disapproval of written request and without authorization from any of the contingencies set forth Seller Parties or the Seller Representative. If Buyer, in Section 3 below, (ii) by reason breach of the failure of any condition precedent in favor of Buyer as set forth in its obligations under this Agreement, or (iii) for any other reason except for a default under this Agreement solely on defaults in its obligations to purchase the part of Buyer, then Membership Interests subject to and in conformity with the Deposit shall be released by Escrow Holder (as hereinafter defined) to Buyer upon demand by Buyer, after which, neither Seller nor Buyer shall have any further rights or obligations hereunder except those obligations which specifically survive the termination terms and conditions of this Agreement. If , the purchase Seller Parties, as their sole and sale of the Property is consummated as contemplated exclusive remedy hereunder, shall be entitled to receive the Deposit as liquidated damages (and not as a penalty), as more fully provided in Section 3.22. At Closing, Escrow Agent shall be applied apply the applicable portion of any cash Deposit against the Purchase Price at the Close of Escrow and shall be paid to Seller or disbursed with respect to the order Membership Interests then being acquired, or if the Deposit is in the form of Seller at a Credit, Escrow Agent shall return the Close of Escrow. All Deposits made by Buyer pursuant Credit to this Section 2 or Section 5 below shall be placed in a federally insured interest-bearing account by Escrow Holder upon terms acceptable to Buyer to be held by Escrow Holder in trust for the benefit of Buyer. If Following the purchase and sale of the Property is not consummated because of a default under this Agreement solely on the part of BuyerFeasibility Period Expiration Date, the Deposit shall be non-refundable to the Buyer and shall constitute except in the liquidated damages due to Seller pursuant to, and subject event of a failed condition precedent to the exception obligation of the Buyer to close hereunder as set forth in, in Section 14 below3.3 or in the event of a default by any of the Seller Parties under this Agreement which remains uncured beyond any applicable notice and cure period provided in this Agreement.

Application of Deposit. The cash deposited into In the event that Buyer terminates this Agreement after the Effective Date in conformity with Buyer’s rights hereunder, Escrow Agent shall, immediately upon receipt of written notice thereof from both Buyer and Seller Representative, on behalf of the Seller Parties, to Escrow Agent deliver the Deposit to Buyer; provided, however, that if Buyer terminates this Agreement pursuant to the terms and conditions of Section 2(a) above2.4 hereof on or before the Feasibility Period Expiration Date, together with all interest earned thereon, then Escrow Agent shall sometimes collectively be referred return the Deposit to herein as the “Deposit.” If this Agreement is terminated (i) as a result Buyer upon its receipt of such Buyer’s timely disapproval of written request and without authorization from any of the contingencies set forth Seller Parties or the Seller Representative. If Buyer, in Section 3 below, (ii) by reason breach of the failure of any condition precedent in favor of Buyer as set forth in its obligations under this Agreement, or (iii) for any other reason except for a default under this Agreement solely on defaults in its obligations to purchase the part of Buyer, then Membership Interests and the Deposit shall be released by Escrow Holder (as hereinafter defined) Westpark and Pxxxxxx Center Properties subject to Buyer upon demand by Buyer, after which, neither Seller nor Buyer shall have any further rights or obligations hereunder except those obligations which specifically survive and in conformity with the termination terms and conditions of this Agreement. If , the purchase Seller Parties, as their sole and sale of the Property is consummated as contemplated exclusive remedy hereunder, shall be entitled to receive the Deposit as liquidated damages (and not as a penalty), as more fully provided in Section 3.22. At Closing, Escrow Agent shall be applied apply any cash Deposit against the Purchase Price at Price, or if the Close Deposit is in the form of a Credit, Escrow and Agent shall be paid return the Credit to Seller or disbursed to the order of Seller at the Close of Escrow. All Deposits made by Buyer pursuant to this Section 2 or Section 5 below shall be placed in a federally insured interest-bearing account by Escrow Holder upon terms acceptable to Buyer to be held by Escrow Holder in trust for the benefit of Buyer. If Following the purchase and sale of the Property is not consummated because of a default under this Agreement solely on the part of BuyerFeasibility Period Expiration Date, the Deposit shall be non-refundable to the Buyer and shall constitute except in the liquidated damages due to Seller pursuant to, and subject event of a failed condition precedent to the exception obligation of the Buyer to close hereunder as set forth in, in Section 14 below3.3 or in the event of a default by any of the Seller Parties under this Agreement which remains uncured beyond any applicable notice and cure period provided in this Agreement.

Application of Deposit. The cash deposited into Escrow pursuant to Section 2(a) above, together with all interest earned thereon, shall sometimes collectively be referred to herein 3.2.1 If the Closing occurs as the “Deposit.” If this Agreement is terminated (i) as a result of Buyer’s timely disapproval of any of the contingencies set forth in Section 3 below, (ii) by reason of the failure of any condition precedent in favor of Buyer as set forth in this Agreement, or (iii) for any other reason except for a default under this Agreement solely on the part of Buyercontemplated hereunder, then the Deposit shall be released paid to Seller. 3.2.2 In the event that the Closing does not occur as contemplated hereunder because of a default by Escrow Holder (as hereinafter defined) to Buyer upon demand by Buyer, after which, neither Seller nor Buyer shall have any further rights or obligations hereunder except those obligations which specifically survive the under this Agreement and following termination of this Agreement. If the purchase and sale of Agreement in accordance with the Property is consummated as contemplated hereunderterms hereof, the Deposit shall be applied against paid to and retained by Seller. 3.2.3 In the Purchase Price at event that the Close Closing does not occur as contemplated hereunder because of Escrow a default by Seller under this Agreement, or in the event that any of the conditions set forth in Section 4.1 hereof are not satisfied and Buyer elects to terminate this Agreement as a result thereof, the Deposit (less the Independent Consideration) shall be paid to Seller or disbursed and retained by Buyer. 3.2.4 The party receiving the interest earned on the Deposit shall pay any income taxes thereon, and such interest shall be reflected as an adjustment on the Closing Statement if the Closing occurs. 3.2.5 If either party makes a demand upon the Escrow Agent for delivery of the Deposit, the Escrow Agent shall give notice to the order other party of Seller at such demand. If a notice of objection to the Close proposed payment is not received from the other party within ten (10) business days after the giving of Escrow. All Deposits notice by the Escrow Agent, the Escrow Agent is hereby authorized to deliver the Deposit to the party who made by Buyer pursuant to this Section 2 or Section 5 below shall be placed in a federally insured interest-bearing account by Escrow Holder upon terms acceptable to Buyer to be held by Escrow Holder in trust for the benefit of Buyerdemand. If the purchase Escrow Agent receives a notice of objection within said ten (10) business day period, or if for any other reason the Escrow Agent in good faith elects not to deliver the Deposit, then the Escrow Agent shall have the right, at its option, to either continue to hold the Deposit and sale thereafter pay it to the party entitled thereto when the Escrow Agent receives (i) a notice from the objecting party withdrawing the objection, (ii) a notice signed by both parties directing disposition of the Property is not consummated because Deposit or (iii) a final judgment or order of a default under this Agreement solely on court of competent jurisdiction or deposit the part same with a court of Buyercompetent jurisdiction in the State of New York, City of New York in connection with institution by Escrow Agent of an action in interpleader and Escrow Agent shall rely upon the decision of such court or a written statement executed by both Seller and Buyer setting forth how the Deposit shall should be non-refundable to Buyer and shall constitute the liquidated damages due to Seller pursuant to, and subject to the exception set forth in, Section 14 belowreleased.

Application of Deposit. The cash deposited into Except as expressly set forth herein to the contrary, the Deposit shall become nonrefundable after 5:00 p.m. Texas time on the Due Diligence Expiration Date (as defined in Section 3.2 below) if Buyer does not notify Seller and Escrow pursuant Holder in writing, on or before 5:00 p.m. Texas time on the date which is one (1) business day following the Due Diligence Expiration Date, that Buyer elects to terminate this Agreement, as set forth in Section 2(a) above3.2.1. Notwithstanding the prior sentence, together with all interest earned thereon, shall sometimes collectively be referred to herein as the “Deposit.” If if this Agreement is terminated (ia) as a result of Buyer’s timely disapproval of any of the contingencies set forth Buyer Contingencies (as defined in Section 3 below) as determined pursuant to Section 3 below, (iib) by reason of the failure of any condition precedent Buyer Condition Precedent (as defined in Section 3 below) in favor of Buyer as set forth in this Agreement, (c) due to a Seller Default (as defined in Section 15.2 below), or (iiid) for any other reason except for a default under this Agreement solely on the part of Buyer, then the Deposit shall be released by Escrow Holder (as hereinafter defined) to Buyer upon demand by Buyer, after which, neither Seller nor Buyer shall have any further rights or obligations hereunder except those obligations which specifically survive the Close of Escrow or earlier termination of this Agreement. If the purchase and sale of the Property is consummated as contemplated hereunder, the Deposit shall be applied against the Purchase Price at the Close of Escrow and shall be paid to Seller or disbursed to the order of Seller at the Close of Escrow. All Deposits made by Buyer pursuant to this Section 2 or Section 5 4 below shall be placed in a federally insured interest-bearing account by Escrow Holder upon terms acceptable to Buyer and Seller to be held by Escrow Holder in trust for the benefit of Buyerthe party entitled to such Deposit pursuant to this Agreement. If the purchase and sale of the Property is not consummated because of a default under this Agreement solely on the part of Buyer, the Deposit shall be non-refundable to Buyer and shall constitute the liquidated damages due to Seller pursuant toto Section 15 below, and subject whereupon Escrow Holder is hereby irrevocably directed to the exception set forth in, Section 14 belowdeliver such Deposit to Seller.

Application of Deposit. The So much of the cash sums as have been actually deposited into Escrow at any given time pursuant to Section 2(aparagraph (a) above, together with all interest earned thereon, shall sometimes collectively be referred to herein as the “Deposit.” If Buyer, upon written notice, may terminate this Agreement is terminated Agreement: (i) as a result of Buyer’s timely disapproval of any of the contingencies set forth in Section 3 below, (ii) by reason of the failure of any condition precedent in favor of Buyer as set forth in this Agreement (excluding, however, those conditions precedent the satisfaction of which are within Buyer’s sole control, or regarding which, if partly within the control of Buyer and Sellers, Sellers have discharged their responsibility and Buyer remains solely responsible for satisfaction of same under the terms of this Agreement), (iii) as the result of a casualty or condemnation as more particularly set forth in Section 14, or (iiiiv) for any other reason except for as a result of a default under this Agreement solely on the part of Buyerany Seller. In the event Buyer terminates this Agreement pursuant to one of the enumerated reasons set forth in the previous sentence, then the Deposit shall be released by Escrow Holder (as hereinafter defined) to Buyer upon demand by Buyer, after which, neither Seller Sellers nor Buyer shall have any further rights or obligations hereunder except those obligations which specifically survive the termination as otherwise expressly provided under, and subject to any limitations set forth, in Sections 3(c)(x), 6(f), 12, 16 and 18(r) of this Agreement. If the purchase and sale of the Property is consummated as contemplated hereunder, the Deposit shall be applied against the Purchase Price at the Close of Escrow and shall be paid to Seller Sellers or disbursed to the order of Seller Sellers at the Close of Escrow. All Deposits made by Buyer pursuant to this Section 2 or Section 5 4 below shall be placed in a one or more federally insured interest-bearing account account(s) by Escrow Holder upon terms acceptable to Buyer to be held by Escrow Holder in trust for the benefit of BuyerBuyer (Federal Tax ID Number for this purpose is 00-0000000 but for application in accordance with this Agreement. If the purchase and sale of the Property is not consummated because of due to a default under this Agreement solely on the part of Buyer, the Deposit shall be non-refundable to Buyer and shall constitute the liquidated damages due to Seller Sellers pursuant toto Section 15 below; provided, and subject however, that notwithstanding the foregoing, Buyer hereby agrees that in the event Sellers deliver notice to Buyer terminating this Agreement due to Buyer’s default, Buyer shall be estopped from negating the effect of such notice (as it pertains to the exception set forth inrelease of the Deposit to Sellers as liquidated damages) by claiming the existence of a default on the part of Sellers based on a matter which Buyer has previously waived, Section 14 belowapproved or satisfied in writing or which is otherwise under this Agreement deemed to have been waived, approved or satisfied as elsewhere provided in this Agreement.