Common use of Deposit Funds Clause in Contracts

Deposit Funds. (a) If this Agreement is validly terminated by Seller pursuant to Section 3.2(f) as a result of a breach by Purchaser of this Agreement, subject to the terms of the Deposit Escrow Agreement, Seller shall be entitled to receive Deposit Funds equal to $18,750,000; provided that if, prior to the effective date of such termination by Seller, Purchaser shall have delivered to Seller a valid notice of termination pursuant to Section 3.2(e) (which notice shall state Purchaser's intent to terminate this Agreement if the breach or untruth described in such notice is not cured within the applicable cure period provided herein), Seller shall not be entitled to receive Deposit Funds unless Seller shall have cured in all material respects the breach or untruth referred to in such notice prior to the valid termination of this Agreement. Upon any payment to Seller of amounts drawn under the Letter of Credit as provided in this paragraph (a), subject to Section 3.3, the parties hereto and their Affiliates and Representatives shall be fully released and discharged from all liabilities and obligations under or resulting from this Agreement, and no party shall have any other remedy or cause of action against any other party under or relating to this Agreement; provided, however, that in the event that such termination is a result of any willful breach by Purchaser of this Agreement, Seller shall also be entitled to seek other remedies or causes of action to recover any damages sustained by Seller to the extent that the amount of such damages exceeds the Deposit Funds; and provided further, however, that the aggregate amount recovered (including the Deposit Funds received) by Seller pursuant to this Section 3.5(a) shall not, under any circumstances, exceed an amount equal to the amount of the Break-Up Fee. (b) If this Agreement is validly terminated pursuant to Section 3.2(b) and (i) the Initial Condition (as such term is used in Exhibit A to the Debt Financing Letter) set forth in clause (h) of Exhibit A to the Debt Financing Letter as in effect on the date hereof (or any clause in a subsequent Debt Financing Letter that refers only to the same matters referred to in such clause (h) and that is otherwise substantially identical to such clause (h)) has been satisfied or waived by the lender party to the Debt Financing Letter and (ii) all conditions to Purchaser's and Seller's obligations to effect the Closing have been satisfied or irrevocably waived by the party entitled to waive such conditions (other than (x) the conditions set forth in Sections 7.1(d), 7.2(d), 7.2(k), 7.3(a) and 7.3(c) and such conditions are reasonably expected to be satisfied at the Closing (other than the condition set forth in Section 7.3(a), which need not reasonably be expected to be satisfied) and (y) the condition set forth in Section 7.2(e) and such condition is not reasonably expected to be satisfied at the Closing), then, subject to the terms of the Deposit Escrow Agreement, Seller shall be entitled to receive Deposit Funds equal to $10 million; provided that if Purchaser has, prior to the effective date of such termination, (A) obtained one or more Commitment Letters pursuant to Section 6.15 with respect to the aggregate amount of Credit Facilities and/or the Notes contemplated in the Debt Financing Letter (as in effect on the date hereof), (B) such Commitment Letter(s) is in effect as of the effective date of such termination, (C) such Commitment Letter(s) includes a termination date not earlier than the Outside Date, unless the Outside Date is more than one (1) year from the date of such Commitment Letter(s) and a Commitment Letter for more than one (1) year was not available on commercially reasonable terms and in an aggregate amount no less than that, and upon terms and conditions not materially less beneficial to Purchaser than those, set forth in the term sheets attached to the Debt Financing Letter as in effect on the date hereof (in which case, the termination date must not be less than one (1) year after the date of such Commitment Letter(s)), and (D) Seller has consented to Purchaser's execution of such Commitment Letter(s), which consent shall not unreasonably be withheld, conditioned or delayed (it being agreed, for purposes of determining whether Seller's consent to the execution by Purchaser of any Commitment Letter has been unreasonably withheld, that certain of the non-economic terms and conditions in a commitment letter customarily are less restrictive to parties such as Purchaser than such terms and conditions in a highly confident letter), Seller only shall be entitled to receive Deposit Funds equal to $5 million; provided further, however, that if the failure to satisfy the condition set forth in Section 7.2(e) was the result of a material disruption in the markets for senior and/or subordinated debt for leveraged transactions (which will be deemed to exist only if substantially all successful lending, underwriting, placement or syndication activity with respect to such debt has ceased or been suspended), Seller shall not be entitled to receive any Deposit Funds pursuant to this Section 3.5(b). Upon payment of the Deposit Funds as provided in this paragraph (b), subject to Section 3.3, the parties hereto and their Affiliates and Representatives shall be fully released and discharged from all liabilities and obligations under or resulting from this Agreement, and no party shall have any other remedy or cause of action against any other party under or relating to this Agreement. (c) Except as specified in Section 3.5(a) and 3.5(b), upon the valid termination of this Agreement, the Letter of Credit and any Deposit Funds shall be released to Purchaser.

Deposit Funds. (a) If As of the date hereof, Buyer has deposited, or caused to be deposited, into escrow with an escrow agent reasonably acceptable to Seller (the “Escrow Agent”) an aggregate amount equal to three million, seven hundred fifty thousand dollars ($3,750,000) (such amount, together with all interest and other earnings accrued thereon, the “Initial Deposit Funds”), and Buyer shall use commercially reasonable efforts to deposit, or cause to be deposited, as soon as practicable, an amount equal to six hundred seventy-five thousand dollars ($675,000) (such amount, together with all interest and other earnings accrued thereon, the “Additional Deposit Funds” and such amount, if deposited, together with the Initial Deposit Funds, the “Deposit Funds”)), by wire transfer of immediately available funds pursuant to the escrow terms approved by the Bankruptcy Court. The Deposit Funds shall be released by the Escrow Agent and delivered to either (x) Buyer and another Person designated by Buyer or (y) Seller, as follows: (i) if the Closing shall occur, (1) the Deposit Funds and all interest and other earnings accrued on the Deposit Funds minus the Remaining Deposit Amount (collectively, the “Buyer Deposit Amount”) shall be applied towards the Purchase Price payable by Buyer pursuant to Section 2.2 and (2) seven hundred fifty thousand dollars ($750,000) of the Deposit Funds (the “Remaining Deposit Amount”) shall be delivered to another Person designated by Buyer as soon as reasonably practicable after the Closing but in no event later than five (5) Business Days after the Closing; (ii) if this Agreement is validly terminated by Seller pursuant to Section 3.2(f) as a result of a breach by Purchaser of this Agreement, subject to the terms of the Deposit Escrow Agreement, Seller shall be entitled to receive Deposit Funds equal to $18,750,000; provided that if, prior to the effective date of such termination by Seller, Purchaser shall have delivered to Seller a valid notice of termination pursuant to Section 3.2(e) (which notice shall state Purchaser's intent to terminate this Agreement if the breach or untruth described in such notice is not cured within the applicable cure period provided herein9.1(d)(i), Seller shall not be entitled to receive Deposit Funds unless Seller shall have cured in all material respects the breach or untruth referred to in such notice prior to the valid termination of this Agreement. Upon any payment to Seller of amounts drawn under the Letter of Credit as provided in this paragraph (a), subject to Section 3.3, the parties hereto and their Affiliates and Representatives shall be fully released and discharged from all liabilities and obligations under or resulting from this Agreement, and no party shall have any other remedy or cause of action against any other party under or relating to this Agreement; provided, however, that in the event that such termination is a result of any willful breach by Purchaser of this Agreement, Seller shall also be entitled to seek other remedies or causes of action to recover any damages sustained by Seller to the extent that the amount of such damages exceeds the Deposit Funds; and provided further, however, that the aggregate amount recovered (including the Deposit Funds receivedshall be delivered to Seller; or (iii) if this Agreement is terminated other than in a manner provided by Seller pursuant Section 9.1(d)(i), the Buyer Deposit Amount shall be delivered to this Section 3.5(aBuyer and the Remaining Deposit Amount shall be delivered to another Person designated by Buyer, in each case, as soon as reasonably practicable after such termination but in no event later than five (5) shall not, under any circumstances, exceed an amount equal to the amount of the Break-Up FeeBusiness Days after such termination. (b) If The Parties acknowledge that the agreements contained in this Section 2.3 are an integral part of the transactions contemplated in this Agreement, that the damages resulting from termination of this Agreement under circumstances where Seller is validly terminated pursuant to Section 3.2(b) and (i) the Initial Condition (as such term is used in Exhibit A entitled to the Debt Financing Letter) set forth Deposit Funds are uncertain and incapable of accurate calculation and that the delivery of the Deposit Funds is not a penalty but rather shall constitute liquidated damages in clause (h) of Exhibit A a reasonable amount that will compensate Seller in the circumstances where Seller is entitled to the Debt Financing Letter as Deposit Funds for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in effect reliance on this Agreement and on the date hereof (or expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, Seller would not enter into this Agreement. If Buyer fails to take any clause in a subsequent Debt Financing Letter that refers only action necessary to cause the same matters referred delivery of the Deposit Funds to in such clause (h) and that is otherwise substantially identical to such clause (h)) has been satisfied or waived by the lender party to the Debt Financing Letter and (ii) all conditions to Purchaser's and Seller's obligations to effect the Closing have been satisfied or irrevocably waived by the party entitled to waive such conditions (other than (x) the conditions set forth in Sections 7.1(d), 7.2(d), 7.2(k), 7.3(a) and 7.3(c) and such conditions are reasonably expected to be satisfied at the Closing (other than the condition set forth in Section 7.3(a), which need not reasonably be expected to be satisfied) and (y) the condition set forth in Section 7.2(e) and such condition is not reasonably expected to be satisfied at the Closing), then, subject Seller pursuant to the terms of the Deposit Escrow Agreement, this Agreement under circumstances where Seller shall be is entitled to receive Deposit Funds equal to $10 million; provided that if Purchaser has, prior to the effective date of such termination, (A) obtained one or more Commitment Letters pursuant to Section 6.15 with respect to the aggregate amount of Credit Facilities and/or the Notes contemplated in the Debt Financing Letter (as in effect on the date hereof), (B) such Commitment Letter(s) is in effect as of the effective date of such termination, (C) such Commitment Letter(s) includes a termination date not earlier than the Outside Date, unless the Outside Date is more than one (1) year from the date of such Commitment Letter(s) and a Commitment Letter for more than one (1) year was not available on commercially reasonable terms and in an aggregate amount no less than that, and upon terms and conditions not materially less beneficial to Purchaser than those, set forth in the term sheets attached to the Debt Financing Letter as in effect on the date hereof (in which case, the termination date must not be less than one (1) year after the date of such Commitment Letter(s)), and (D) Seller has consented to Purchaser's execution of such Commitment Letter(s), which consent shall not unreasonably be withheld, conditioned or delayed (it being agreed, for purposes of determining whether Seller's consent to the execution by Purchaser of any Commitment Letter has been unreasonably withheld, that certain of the non-economic terms and conditions in a commitment letter customarily are less restrictive to parties such as Purchaser than such terms and conditions in a highly confident letter), Seller only shall be entitled to receive Deposit Funds equal to $5 million; provided further, however, that if the failure to satisfy the condition set forth in Section 7.2(e) was the result of a material disruption in the markets for senior and/or subordinated debt for leveraged transactions (which will be deemed to exist only if substantially all successful lending, underwriting, placement or syndication activity with respect to such debt has ceased or been suspended), Seller shall not be entitled to receive any Deposit Funds pursuant to this Section 3.5(b). Upon payment of the Deposit Funds as provided and, in this paragraph order to obtain such Deposit Funds, Seller commences a suit which results in a judgment in favor of Seller, Buyer shall pay to Seller an amount in cash equal to the costs and expenses (b), subject to Section 3.3, the parties hereto and their Affiliates and Representatives shall be fully released and discharged from all liabilities and obligations under or resulting from this Agreement, and no party shall have any other remedy or cause of action against any other party under or relating to this Agreementincluding attorney’s fees) incurred by Seller in connection with such suit. (c) Except as specified in Section 3.5(a) and 3.5(b), upon the valid termination of this Agreement, the Letter of Credit and any Deposit Funds shall be released to Purchaser.

Deposit Funds. (a) If Upon the date of full and complete execution by the Parties of this Agreement is (the "Execution Date"), Purchaser shall pay to Seller the Initial Deposit Funds, in the form of a bank cashier's check or wire transfer of immediately available funds. If the Closing does not occur on or before March 31, 2006, Purchaser shall pay to Seller on April 3, 2006 the Subsequent Deposit Funds in the form of a bank cashier's check or wire transfer of immediately available funds. If the Closing does not occur on or before June 30, 2006, Purchaser shall pay to Seller on July 3, 2006 the Final Deposit Funds in the form of a bank cashier's check or wire transfer of immediately available funds. (b) Purchaser and Seller acknowledge that the Deposit Funds shall be applied towards payment of the Consideration if the Closing occurs. (c) If the Agreement has been validly terminated by Purchaser or Seller pursuant to any paragraph of Section 6.1 for any reason, other than valid termination (i) by Seller pursuant to Section 3.2(f6.1(b), (ii) as a result by Purchaser or Seller pursuant to Section 6.1(c) because Purchaser does not have sufficient funds available for the payment of the Consideration, or (iii) by Purchaser or Seller pursuant to Section 6.1(c) because Purchaser has failed to obtain all regulatory approvals required to consummate the Transaction, Seller shall pay back to Purchaser, immediately upon termination, an amount equal to the Deposit Funds in the form of a breach bank cashier's check or wire transfer of immediately available funds. (d) If the Agreement has been validly terminated by (i) Seller pursuant to Section 6.1(b) or (ii) Purchaser of this Agreement, subject or Seller pursuant to Section 6.1(c) because Purchaser does not have sufficient funds available for the terms payment of the Deposit Escrow AgreementConsideration, Seller shall be entitled to receive retain the Deposit Funds equal to $18,750,000; provided that if, prior to Funds. (e) If the effective date of such termination Agreement has been validly terminated by Seller, Purchaser shall have delivered to or Seller a valid notice of termination pursuant to Section 3.2(e6.1(c) (which notice shall state Purchaser's intent because Purchaser has failed to terminate this Agreement if obtain all regulatory approvals required to consummate the breach or untruth described in such notice is not cured within the applicable cure period provided herein)Transaction, Seller shall not be entitled pay back to receive Deposit Funds unless Seller shall have cured in all material respects the breach or untruth referred to in such notice prior to the valid termination of this Agreement. Upon any payment to Seller of amounts drawn under the Letter of Credit as provided in this paragraph (a)Purchaser, subject to Section 3.3immediately upon termination, the parties hereto and their Affiliates and Representatives shall be fully released and discharged from all liabilities and obligations under or resulting from this Agreement, and no party shall have any other remedy or cause of action against any other party under or relating to this Agreement; provided, however, that in the event that such termination is a result of any willful breach by Purchaser of this Agreement, Seller shall also be entitled to seek other remedies or causes of action to recover any damages sustained by Seller to the extent that the amount of such damages exceeds the Deposit Funds; and provided further, however, that the aggregate amount recovered (including the Deposit Funds received) by Seller pursuant to this Section 3.5(a) shall not, under any circumstances, exceed an amount equal to the amount of the Break-Up Fee. Deposit Funds, less One Hundred Thousand Dollars (b) If this Agreement is validly terminated pursuant to Section 3.2(b) and (i) the Initial Condition (as such term is used in Exhibit A to the Debt Financing Letter) set forth in clause (h) of Exhibit A to the Debt Financing Letter as in effect on the date hereof (or any clause in a subsequent Debt Financing Letter that refers only to the same matters referred to in such clause (h) and that is otherwise substantially identical to such clause (h)) has been satisfied or waived by the lender party to the Debt Financing Letter and (ii) all conditions to Purchaser's and Seller's obligations to effect the Closing have been satisfied or irrevocably waived by the party entitled to waive such conditions (other than (x) the conditions set forth in Sections 7.1(d$100,000.00), 7.2(d), 7.2(k), 7.3(a) and 7.3(c) and such conditions are reasonably expected to be satisfied at the Closing (other than the condition set forth in Section 7.3(a), which need not reasonably be expected to be satisfied) and (y) the condition set forth in Section 7.2(e) and such condition is not reasonably expected to be satisfied at the Closing), then, subject to the terms of the Deposit Escrow Agreement, Seller shall be entitled to receive Deposit Funds equal to $10 million; provided that if Purchaser has, prior to the effective date of such termination, (A) obtained one or more Commitment Letters pursuant to Section 6.15 with respect to the aggregate amount of Credit Facilities and/or the Notes contemplated in the Debt Financing Letter (as in effect on the date hereof), (B) such Commitment Letter(s) is in effect as form a bank cashier's check or wire transfer of the effective date of such termination, (C) such Commitment Letter(s) includes a termination date not earlier than the Outside Date, unless the Outside Date is more than one (1) year from the date of such Commitment Letter(s) and a Commitment Letter for more than one (1) year was not immediately available on commercially reasonable terms and in an aggregate amount no less than that, and upon terms and conditions not materially less beneficial to Purchaser than those, set forth in the term sheets attached to the Debt Financing Letter as in effect on the date hereof (in which case, the termination date must not be less than one (1) year after the date of such Commitment Letter(s)), and (D) Seller has consented to Purchaser's execution of such Commitment Letter(s), which consent shall not unreasonably be withheld, conditioned or delayed (it being agreed, for purposes of determining whether Seller's consent to the execution by Purchaser of any Commitment Letter has been unreasonably withheld, that certain of the non-economic terms and conditions in a commitment letter customarily are less restrictive to parties such as Purchaser than such terms and conditions in a highly confident letter), Seller only shall be entitled to receive Deposit Funds equal to $5 million; provided further, however, that if the failure to satisfy the condition set forth in Section 7.2(e) was the result of a material disruption in the markets for senior and/or subordinated debt for leveraged transactions (which will be deemed to exist only if substantially all successful lending, underwriting, placement or syndication activity with respect to such debt has ceased or been suspended), Seller shall not be entitled to receive any Deposit Funds pursuant to this Section 3.5(b). Upon payment of the Deposit Funds as provided in this paragraph (b), subject to Section 3.3, the parties hereto and their Affiliates and Representatives shall be fully released and discharged from all liabilities and obligations under or resulting from this Agreement, and no party shall have any other remedy or cause of action against any other party under or relating to this Agreementfunds. (c) Except as specified in Section 3.5(a) and 3.5(b), upon the valid termination of this Agreement, the Letter of Credit and any Deposit Funds shall be released to Purchaser.