Common use of Deposit Escrow Clause in Contracts

Deposit Escrow. At or prior to the Closing, the Buyer shall (i) deposit immediately into escrow with Citibank NA (the “Escrow Agent”) an amount equal to one million six-hundred twenty-four thousand seven hundred ninety dollars and ten cents ($1,624,790.10), and (ii) deposit any additional amounts required to be deposited following the Auction pursuant to the terms of the Bidding Procedures Order (the amounts so deposited pursuant to the foregoing clauses (i) and (ii), together with any interest accrued thereon prior to the Closing Date, the “Deposit”) by wire transfer of immediately available funds pursuant to the terms of this Agreement. The Deposit shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any of the Parties; provided, that the Seller’s right to receive the Deposit in accordance with the terms of this Agreement shall be subject to the liens securing the DIP Obligations. The Deposit shall become payable to the Seller upon the earlier of (i) the Closing or (ii) the termination of this Agreement by the Seller pursuant to Section 9.1(d) or Section 9.1(i) (any such termination described in the foregoing clause (ii), a “Buyer Default Termination”). If the Closing occurs, the Deposit shall be delivered to an account designated by the Seller by wire transfer of immediately available funds as payment of a portion of the Purchase Price. If the Deposit becomes payable to the Seller by reason of a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to disburse, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to disburse, the Deposit to the Seller, in each case in accordance with this Agreement, and the Escrow Agent shall, within two (2) Business Days after receiving such joint written instruction or Order, as the case may be, disburse the Deposit by wire transfer of immediately available funds to the account designated in writing by the Seller to be retained by the Seller for its own account. If this Agreement or the transactions contemplated herein are terminated other than for a termination which constitutes a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to return, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to return, and the Escrow Agent shall, within two (2) Business Days after such instruction, return to the Buyer the Deposit by wire transfer of immediately available funds to the account designated in writing by the Buyer. The Escrow Agent’s escrow fees and charges shall be paid by the Buyer. The Parties agree that Xxxxxx’s right to retain the Deposit, as set forth in this Section 3.2 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller for its efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.

Deposit Escrow. At Subject to the terms and conditions of an escrow agreement entered into among Buyer, Seller and the Deposit Escrow Agent (as defined below), substantially in the form attached hereto as Exhibit A (the “Deposit Escrow Agreement”), on or prior to the ClosingEffective Date, the Buyer shall (i) deliver to and deposit immediately into in trust with XX Xxxxxx Xxxxx Bank or other similar escrow with Citibank NA agent or company mutually acceptable by written agreement between Buyer and Seller (the “Deposit Escrow Agent”) an amount equal to one million six-hundred twenty-four thousand seven hundred ninety dollars and ten cents ), the sum of Two Million Dollars ($1,624,790.10), and 2,000,000.00) (ii) deposit any additional amounts required to be deposited following the Auction pursuant to the terms of the Bidding Procedures Order (the amounts so deposited pursuant to the foregoing clauses (i) and (ii), together with any interest accrued thereon prior to the Closing Date, the “Deposit”) by wire transfer in immediately available, good funds. Upon receipt of the Deposit, the Deposit Escrow Agent shall immediately available funds deposit the Deposit into an account pursuant to the terms of this Deposit Escrow Agreement. The Deposit Escrow Agent shall not be subject return to any lien, attachment, trustee process or any other judicial process of any creditor of any of the Parties; provided, that the Seller’s right to receive Buyer the Deposit in accordance with (and any interest accrued thereon) upon the terms earlier of (A) Buyer’s termination of this Agreement shall be subject under Section 8.1.1 as a result of the failure of a condition to Buyer’s obligations, as set forth in Section 4.2 (a “Seller Default Termination”), (B) Seller’s termination of this Agreement at its election under Section 8.1.1 unless there has been a Buyer Default Termination, (C) mutual termination of this Agreement under Section 8.1.2, (D) Buyer’s or Seller’s termination of this Agreement under Section 8.1.3 unless there has been a Buyer Default Termination, (E) pursuant to Section 2.4.5, or (F) the liens securing failure of the DIP ObligationsBankruptcy Court to enter an unstayed Approval Order because of the acceptance of a higher bid. The Deposit Escrow Agent shall become payable deliver the Deposit (and any interest accrued thereon) to the Seller upon the earlier of (iA) the Closing or (ii) the Seller’s termination of this Agreement by under Section 8.1.1 as a result of the Seller pursuant failure of a condition to Section 9.1(d) Seller’s obligations set forth in Sections 4.1.1 or Section 9.1(i) 4.1.2 (any such termination described in the foregoing clause (ii), a “Buyer Default Termination”). If the Closing occurs, the Deposit shall be delivered (B) pursuant to an account designated by the Seller by wire transfer Section 2.4.5 or (C) Seller’s termination of immediately available funds as payment of a portion of the Purchase Price. If the Deposit becomes payable to the Seller by reason of this Agreement under Section 8.1.3 if there has been a Buyer Default Termination. Promptly upon the occurrence of any of the events described in the immediately preceding two sentences, then either (A) the Seller CPPLP and the Buyer shall jointly instruct the Deposit Escrow Agent to disburse, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to disburse, release the Deposit to the Seller, in each case in accordance with this Agreement, and the Escrow Agent shall, within two (2) Business Days after receiving such joint written instruction or Order, as the case may be, disburse the Deposit by wire transfer of immediately available funds to the account designated in writing by the Seller to be retained by the Seller for its own account. If this Agreement or the transactions contemplated herein are terminated other than for a termination which constitutes a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to return, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to return, and the Escrow Agent shall, within two (2) Business Days after such instruction, return to the Buyer the Deposit by wire transfer of immediately available funds to the account designated in writing by the BuyerSection 2.2. The Deposit Escrow Agent’s escrow fees and charges shall be paid one-half by Seller and one-half by Buyer, in which respect the Buyer. The Parties agree that Xxxxxx’s right to retain Seller and the Deposit, as set forth in this Section 3.2 is Buyer shall not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller be jointly liable since each shall only be liable for its efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation own part (one-half) of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precisionsaid fees and charges.

Deposit Escrow. At or prior to Concurrently with the Closingexecution of this Agreement, the Debtor Entities have entered into an escrow agreement substantially in the form of Exhibit C (the “Escrow Agreement”) with Kroll Restructuring Administration LLC (the “Escrow Agent”), and the Buyer shall (i) deposit immediately into escrow with Citibank NA (the “Escrow Agent”) Agent an amount equal to one million six-hundred twenty-four thousand seven hundred ninety dollars and ten cents Sixty Five Thousand Dollars ($1,624,790.1065,000.00), and (ii) deposit any additional amounts required to be deposited following the Auction pursuant to the terms of the Bidding Procedures Order (the amounts so deposited pursuant to the foregoing clauses (i) and (ii), together with any interest accrued thereon prior to the Closing Date, the “Deposit”) by wire transfer of immediately available funds pursuant to the terms of this Agreement and the Escrow Agreement. The Deposit shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any of the Parties; provided, that the Seller’s right to receive the Deposit in accordance with the terms of this Agreement shall be subject to the liens securing the DIP Obligations. The Deposit shall become payable to the Seller upon the earlier of (i) the Closing or (ii) the termination of this Agreement by (A) the Seller pursuant to Section 9.1(d) or Section 9.1(i), or (B) the Seller pursuant to Section 9.1(b), Section 9.1(c) or Section 9.1(h), or the Buyer pursuant to Section 9.1(b) or Section 9.1(h) at a time when the Seller could have terminated this Agreement pursuant to Section 9.1(d) (any such termination described in the foregoing clause clauses (iiii)(A) or (ii)(B), a “Buyer Default Termination”). If the Closing occurs, the Deposit shall be delivered to an account designated by the Seller by wire transfer of immediately available funds as payment of a portion of the Purchase Price. If the Deposit becomes payable to the Seller by reason of a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to disburse, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to disburse, the Deposit to the Seller, in each case in accordance with this the Escrow Agreement, and the Escrow Agent shall, within two (2) Business Days after receiving such joint written instruction or Order, as the case may be, disburse the Deposit to an account designated by the Seller by wire transfer of immediately available funds to the account designated in writing by the Seller to be retained by the Seller for its own account. If this Agreement or the transactions contemplated herein are terminated other than for a termination which constitutes a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to return, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to returnto, and the Escrow Agent shall, within two (2) Business Days after such instruction, return to the Buyer the Deposit by wire transfer of immediately available funds to the account designated in writing by the Buyerwriting. The Escrow Agent’s escrow fees and charges shall be paid by the Buyer. The Parties agree that Xxxxxx’s right to retain the Deposit, as set forth in this Section 3.2 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller for its efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.

Deposit Escrow. At Subject to the terms and conditions of an escrow agreement (the “Deposit Escrow Agreement”) entered into among Buyer, Seller and the Deposit Escrow Agent (as defined below), substantially in the form attached hereto as Exhibit A, on or prior to the ClosingEffective Date, the Buyer shall (i) deliver to and deposit immediately into in trust with XX Xxxxxx Xxxxx Bank or other similar escrow with Citibank NA agent or company mutually acceptable by written agreement between Buyer and Seller (the “Deposit Escrow Agent”) an amount equal to one million six-hundred twenty-four thousand seven hundred ninety dollars and ten cents ), the sum of Three Hundred Fifty Thousand Dollars ($1,624,790.10), and 350,000) (ii) deposit any additional amounts required to be deposited following the Auction pursuant to the terms of the Bidding Procedures Order (the amounts so deposited pursuant to the foregoing clauses (i) and (ii), together with any interest accrued thereon prior to the Closing Date, the “Deposit”) by wire transfer in immediately available, good funds. Upon receipt of the Deposit, the Deposit Escrow Agent shall immediately available funds deposit the Deposit into an account pursuant to the terms of this Deposit Escrow Agreement. The Deposit Escrow Agent shall not be subject return to any lien, attachment, trustee process or any other judicial process of any creditor of any of the Parties; provided, that the Seller’s right to receive Buyer the Deposit in accordance with (and any interest accrued thereon) upon the terms earlier of (A) Buyer’s termination of this Agreement shall be subject under Section 8.1.1 as a result of the failure of a condition to the liens securing the DIP ObligationsBuyer’s obligations, as set forth in Section 4.2 (a “Seller Default Termination”), (B) Seller’s termination of this Agreement at its election under Section 8.1.1 unless there has been a Buyer Default Termination, (C) mutual termination of this Agreement under Section 8.1.2, or (D) pursuant to Section 2.4.4. The Deposit Escrow Agent shall become payable deliver the Deposit (and any interest accrued thereon) to the Seller upon the earlier of (iA) the Closing or (ii) the Seller’s termination of this Agreement by under Section 8.1.1 as a result of the Seller pursuant failure of a condition to Section 9.1(d) Seller’s obligations set forth in Sections 4.1.1 or Section 9.1(i) 4.1.2 (any such termination described in the foregoing clause (ii), a “Buyer Default Termination”)) or (B) the Closing. If Promptly upon the Closing occurs, the Deposit shall be delivered to an account designated by the Seller by wire transfer occurrence of immediately available funds as payment of a portion any of the Purchase Price. If events described in the Deposit becomes payable to the Seller by reason of a Buyer Default Terminationimmediately preceding two sentences, then either (A) the Seller and the Buyer shall jointly instruct the Deposit Escrow Agent to disburse, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to disburse, release the Deposit to the Seller, in each case in accordance with this Agreement, and the Escrow Agent shall, within two (2) Business Days after receiving such joint written instruction or Order, as the case may be, disburse the Deposit by wire transfer of immediately available funds to the account designated in writing by the Seller to be retained by the Seller for its own account. If this Agreement or the transactions contemplated herein are terminated other than for a termination which constitutes a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to return, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to return, and the Escrow Agent shall, within two (2) Business Days after such instruction, return to the Buyer the Deposit by wire transfer of immediately available funds to the account designated in writing by the BuyerSection 2.2. The Deposit Escrow Agent’s escrow fees and charges shall be paid one-half by Seller and one-half by Buyer, in which respect the Buyer. The Parties agree that Xxxxxx’s right to retain Seller and the Deposit, as set forth in this Section 3.2 is Buyer shall not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller be jointly liable since each shall only be liable for its efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation own part (one-half) of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precisionsaid fees and charges.

Deposit Escrow. At or prior Section 501.1375 of the Florida Statutes requires the following notice in all contracts for the purchase of a completed home: THE BUYER OF A ONE- OR TWO-FAMILY RESIDENTIAL DWELLING UNIT HAS THE RIGHT TO HAVE ALL DEPOSIT FUNDS (UP TO 10% OF THE PURCHASE PRICE) DEPOSITED IN AN INTEREST-BEARING ESCROW ACCOUNT. THIS RIGHT MAY BE WAIVED, IN WRITING, BY THE BUYER. This law states that, in the event a surety bond in the amount of the Escrowed Deposit is not readily available, which would have permitted the Escrowed Deposit to be released for construction purposes, then Seller may borrow money in an amount equal to the funds held in Escrow for construction purposes only, in which case any interest Seller pays on such loan for a period not to exceed 12 months shall be paid by the Buyer at time of Closing, and Buyer shall be credited for any interest accrued on the Escrow Account. Seller has determined that such surety bond is not readily available and that, unless this escrow right is waived by Buyer, Seller intends to borrow money in an amount equal to the funds held in Escrow pursuant to the preceding sentence, and Buyer shall be charged at Closing the interest costs as hereinabove set forth. If the Buyer shall does not waive the escrow requirements, Buyer understands that XXXXXXX XXXX XXXXXXX & XXXXXX, P.A. (i) deposit immediately into escrow with Citibank NA (the “Escrow Agent”) ), with an amount equal to one million six-hundred twenty-four thousand seven hundred ninety dollars and ten cents office at 0000 Xxxxxxxxx Xxxx., Xxxxx 000 Xxxx, Xxxx Xxxxx, XX 00000 ($1,624,790.10Attention: Xxxxx X. Xxxxxxx, Esquire), and (ii) deposit any additional amounts required to whose telephone number is 000-000-0000, is the Escrow Agent. Buyer understands that the Deposit will be deposited following the Auction held pursuant to the terms of the Bidding Procedures Order (the amounts so deposited pursuant to the foregoing clauses (i) and (ii), together with any interest accrued thereon prior to the Closing Date, the “Deposit”) by wire transfer of immediately available funds pursuant to the terms of this Agreement. The Deposit shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any of the Parties; provided, that the Seller’s right to receive the Deposit in accordance with the terms of this an Escrow Agreement shall be subject to the liens securing the DIP Obligations. The Deposit shall become payable to the Seller upon the earlier of (i) the Closing or (ii) the termination of this Agreement by the Seller pursuant to Section 9.1(d) or Section 9.1(i) (any such termination described in the foregoing clause (ii), a “Buyer Default Termination”). If the Closing occurs, the Deposit shall be delivered to an account designated by the Seller by wire transfer of immediately available funds as payment of a portion of the Purchase Price. If the Deposit becomes payable to the Seller by reason of a Buyer Default Termination, then either (A) the between Seller and the Buyer shall jointly instruct the Escrow Agent to disburse, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to disburse, the Deposit to the Seller, in each case in accordance with this Agreement, and the Escrow Agent shall, within two (2) Business Days after receiving such joint written instruction or Order, as the case may be, disburse the Deposit by wire transfer of immediately available funds to the account designated in writing by the Seller to be retained by the Seller for its own account. If this Agreement or the transactions contemplated herein are terminated other than for a termination which constitutes a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to return, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to return, and the Escrow Agent shall, within two (2) Business Days after such instruction, return to the Buyer the Deposit by wire transfer of immediately available funds to the account designated in writing by the Buyer. The Escrow Agent’s escrow fees and charges shall be paid by the Buyer. The Parties agree that Xxxxxx’s right to retain the Deposit, as set forth in this Section 3.2 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller for its efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.

Deposit Escrow. At On or prior to before 5:00PM (Eastern Time) on November 27, 2020, the Closing, Seller and the Buyer shall have entered into the escrow agreement appended hereto as Exhibit F (i) deposit immediately into escrow the “Escrow Agreement”), with Citibank NA First Republic Bank (the “Escrow Agent”) ), and the Buyer shall have deposited into escrow with the Escrow Agent an amount equal to one million six-hundred twentyfifty-four thousand seven hundred ninety million dollars and ten cents ($1,624,790.10), and 54,000,000) (ii) deposit any additional amounts required to be deposited following the Auction pursuant to the terms of the Bidding Procedures Order (the amounts so deposited pursuant to the foregoing clauses (i) and (ii)such amount, together with any interest accrued thereon prior to the Closing Date, the “Deposit”) by wire transfer of immediately available funds pursuant to the terms of this Agreementthe Escrow Agreement to an account specified therein (the “Escrow Account”). The Subject to the following sentence and Section 3.2, the Deposit shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any of the Parties; provided, that Selling Entities or the Seller’s right to receive the Deposit in accordance with the terms of this Agreement shall be subject to the liens securing the DIP ObligationsBuyer. The Deposit shall become payable to the Seller upon the earlier of (ia) such time as it is released in accordance with the Closing terms and conditions of Section 3.2(d), or (iib) the termination of this Agreement by the Seller pursuant to Section 9.1(d) or Section 9.1(i9.1(c) (any such termination described in the foregoing clause (ii), a “Buyer Default Termination”). If In such event, Buyer shall have no further Liability hereunder and shall not be subject to Section 10.12. Each of the Parties expressly acknowledges and agrees that in the event that the Deposit is retained by the Seller pursuant to this Section 3.3, (x) the Seller’s right to receive payment of such amount shall constitute the sole and exclusive remedy of the Selling Entities against the Buyer and each of its Affiliates for all losses and damages in respect of the Transaction Documents and the transactions contemplated thereby; and (y) none of the Selling Entities shall be entitled to commence or pursue any Action against any of the Buyer of any of its Affiliates arising out of or in connection with the Transaction Documents or the failure to consummate the transactions contemplated thereby. Prior to the Closing occurs(including as a result of any Buyer Default Termination or any other failure by Buyer to consummate the transactions contemplated hereby), the maximum aggregate liability of the Buyer and its Affiliates for losses and damages in connection with the Transaction Documents and the transactions contemplated thereby shall be limited to the Deposit, and no Selling Entity shall seek or obtain, nor shall it cause or direct any of its Representatives or any other Person on its or their behalf to seek or obtain, any recovery or award or any losses or damages of any kind (including damages for the loss of the benefit of the bargain, opportunity cost, loss of premium, time value of money or otherwise, or any consequential, special, expectancy, indirect or punitive damages), in the aggregate, in excess of the Deposit against the Buyer or any of its Affiliates, collectively, and recovery of the Deposit from the Escrow Account in accordance with the terms of the Escrow Agreement will be the Selling Entities’ sole and exclusive source of recovery for any amounts owing to them as a result of any Buyer Default Termination or any other failure by Buyer to consummate the transactions contemplated hereby. The Parties agree that the Seller’s right to retain the Deposit, as set forth in this Section 3.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Selling Entities for their respective efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. At the Closing, the entirety of the Deposit shall be delivered to an account designated by remain in the Seller by wire transfer Escrow Account in accordance with the Escrow Agreement until released in accordance with the terms and conditions of immediately available funds as payment of a portion of Section 3.2(d). In the Purchase Price. If event the Deposit becomes payable to the Seller by reason of a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to disburse, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to disburse, the Deposit to the Seller, in each case in accordance with this Agreement, and the Escrow Agent shall, within two (2) Business Days after receiving notice of such joint written instruction or Order, as the case may beBuyer Default Termination from Seller, disburse the Deposit to an account designated by the Seller by wire transfer of immediately available funds to the account designated in writing by the Seller to be retained by the Seller for its own account. If this Agreement or the transactions contemplated herein are terminated other than for a termination which constitutes a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to return, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to returnto, and the Escrow Agent shall, within two (2) Business Days after such instruction, return to the Buyer the Deposit by wire transfer of immediately available funds funds. The Parties agree to promptly deliver any joint instruction that the account designated in writing Escrow Agent may require to effectuate the payments contemplated by the Buyerthis Section 3.3. The Escrow Agent’s escrow fees and charges shall be paid by the Buyer. The Parties agree that Xxxxxx’s right to retain the Deposit, as set forth in this Section 3.2 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller for its efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.

Deposit Escrow. At Concurrently with the mutual execution and delivery of this Agreement (the date of such mutual execution and delivery is sometimes referred to herein as the "Execution Date"), Buyer shall deliver to and deposit in trust with JPMorgan Chase Bank or prior other similar escrow agent or company mutually acceptable by written agreement between Buyer and Seller (the "Deposit Escrow Agent") Five Million Dollars and No Cents ($5,000,000) (the "Deposit") in immediately available, good funds (funds delivered in this manner are referred to herein as "Good Funds"), pursuant to an escrow agreement among Buyer, Seller and Deposit Escrow Agent substantially in the Closingform attached hereto as Exhibit "E". Such escrow agreement shall include the provisions set forth in this Section 2.1.2. Upon receipt of the Deposit, the Deposit Escrow Agent shall immediately deposit the Deposit into an interest-bearing account. The Deposit Escrow Agent shall return to Buyer shall the Deposit (iand any interest accrued thereon) deposit immediately into escrow with Citibank NA upon the earlier of (A) the “Escrow Agent”) an amount equal Buyer's termination of this Agreement under Section 4.3.2 as a result of the failure of a condition to one million six-hundred twenty-four thousand seven hundred ninety dollars and ten cents Buyer's obligations, as set forth in Section 4.2 ($1,624,790.10a "Seller Default Termination"), (B) Seller's termination of this Agreement at its election under Section 4.3.2 unless there has been a Buyer Default Termination, (C) Buyer's or Seller's termination of this Agreement at its election under Section 4.3.3, (D) at the Outside Date, as extended pursuant to Section 3.2, and no Closing or Buyer Default Termination has occurred as of such date, (iiE) deposit any additional amounts required to be deposited following at such time as Seller accepts an overbid at the Auction pursuant to Section 8.4.1 from a third party other than Buyer, or (F) mutual termination under Section 4.3.1. The Deposit Escrow Agent shall deliver the terms of the Bidding Procedures Order Deposit (the amounts so deposited pursuant to the foregoing clauses (i) and (ii), together with any interest accrued thereon prior thereon) to the Closing Date, the “Deposit”) by wire transfer of immediately available funds pursuant to the terms of this Agreement. The Deposit shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any of the Parties; provided, that the Seller’s right to receive the Deposit in accordance with the terms of this Agreement shall be subject to the liens securing the DIP Obligations. The Deposit shall become payable to the Seller upon the earlier of (iA) the Closing or (ii) the Seller's termination of this Agreement by under Section 4.3.2 as a result of the Seller pursuant failure of a condition to Section 9.1(d) or Section 9.1(i) Seller's obligations set forth in Sections 4.1.1 only (any such termination described in the foregoing clause (ii), a “"Buyer Default Termination”). If the Closing occurs, the Deposit shall be delivered to an account designated by the Seller by wire transfer of immediately available funds as payment of a portion of the Purchase Price. If the Deposit becomes payable to the Seller by reason of a Buyer Default Termination, then either (A") the Seller and the Buyer shall jointly instruct the Escrow Agent to disburse, or (B) at the Seller or Closing of the Buyer shall deliver sale to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to disburse, the Deposit to the Seller, in each case in accordance with this Agreement, and the Escrow Agent shall, within two (2) Business Days after receiving such joint written instruction or Order, as the case may be, disburse the Deposit by wire transfer of immediately available funds to the account designated in writing by the Seller to be retained by the Seller for its own account. If this Agreement or the transactions contemplated herein are terminated other than for a termination which constitutes a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to return, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to return, and the Escrow Agent shall, within two (2) Business Days after such instruction, return to the Buyer the Deposit by wire transfer of immediately available funds to the account designated in writing by the Buyer. The Deposit Escrow Agent’s 's escrow fees and charges shall be paid one-half by Seller and one-half by Buyer, in which respect the Buyer. The Parties agree that Xxxxxx’s right to retain Seller and the Deposit, as set forth in this Section 3.2 is Buyer shall not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller be jointly liable since each shall only be liable for its efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation own part (one-half) of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precisionsaid fees and charges.

Deposit Escrow. At or prior to Concurrently with the Closingexecution of this Agreement, the Debtor Entities have entered into an escrow agreement, a copy of which is attached hereto as Exhibit A (the “Escrow Agreement”) with Kroll Restructuring Administration LLC (the “Escrow Agent”), and the Buyer shall (i) deposit immediately into escrow with Citibank NA (the “Escrow Agent”) Agent an amount equal to one million six-hundred twenty-four thousand seven hundred ninety dollars and ten cents ($1,624,790.10)270,000, and (ii) deposit any additional amounts required to be deposited following the Auction pursuant to the terms of the Bidding Procedures Order (the amounts so deposited pursuant to the foregoing clauses (i) and (ii), together with any interest accrued thereon prior to the Closing Date, the “Deposit”) by wire transfer of immediately available funds pursuant to the terms of this Agreement and the Escrow Agreement. The Deposit shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any of the Parties; provided, that the Seller’s right to receive the Deposit in accordance with the terms of this Agreement shall be subject to the liens securing the DIP Obligations. The Deposit shall become payable to the Seller upon the earlier of (i) the Closing or (ii) the termination of this Agreement by (A) the Seller pursuant to Section 9.1(d) or Section 9.1(i), or (B) the Seller pursuant to Section 9.1(b), Section 9.1(c) or Section 9.1(h), or the Buyer pursuant to Section 9.1(b) or Section 9.1(h) at a time when the Seller could have terminated this Agreement pursuant to Section 9.1(d) (any such termination described in the foregoing clause clauses (iiii)(A) or (ii)(B), a “Buyer Default Termination”). If the Closing occurs, the Deposit shall be delivered to an account designated by the Seller by wire transfer of immediately available funds as payment of a portion of the Purchase Price. If the Deposit becomes payable to the Seller by reason of a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to disburse, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to disburse, the Deposit to the Seller, in each case in accordance with this the Escrow Agreement, and the Escrow Agent shall, within two (2) Business Days after receiving such joint written instruction or Order, as the case may be, disburse the Deposit to an account designated by the Seller by wire transfer of immediately available funds to the account designated in writing by the Seller to be retained by the Seller for its own account. If this Agreement or the transactions contemplated herein are terminated other than for a termination which constitutes a Buyer Default Termination, then either (A) the Seller and the Buyer shall jointly instruct the Escrow Agent to return, or (B) the Seller or the Buyer shall deliver to the Escrow Agent a final and non-appealable written Order from a court of competent jurisdiction directing the Escrow Agent to returnto, and the Escrow Agent shall, within two (2) Business Days after such instruction, return to the Buyer the Deposit by wire transfer of immediately available funds to the account designated in writing by the Buyerwriting. The Escrow Agent’s escrow fees and charges shall be paid by the Buyer. The Parties agree that Xxxxxx’s right to retain the Deposit, as set forth in this Section 3.2 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller for its efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.