Common use of Deposit in Escrow Clause in Contracts

Deposit in Escrow. At Closing, there shall be delivered to the Escrow Agent pursuant to the Escrow Agreement, to be held and disbursed upon and subject to all of the terms and conditions set forth therein, cash in the amount of Three Million Five Hundred Thousand Dollars ($3,500,000) (the “Escrow Amount”), and as provided in Section 2.13, the Short Year Tax Refund and the Loss Carryback Refund shall also be delivered to the Escrow Agent pursuant to the Escrow Agreement, to be so held and disbursed (and the Escrow Amount shall thereafter include the Short Year Tax Refund and the Loss Carryback Refund). The sum of $3,500,000 shall be deducted under Section 2.6(b) from the Initial Merger Consideration due to the Stockholders upon Closing, excluding any consideration attributable to any Dissenting Shares in respect of which no payment is required to be made to the holder thereof at Closing. At the request of the Stockholder Representative upon or following the second anniversary of the Effective Date, the Purchaser and the Stockholder Representative shall direct the Escrow Agent to disburse the remainder of the Escrow Amount to the Stockholder Representative, except as follows: (a) there shall be disbursed to the Purchaser and other Purchaser Indemnified Parties from the Escrow Amount, prior to any disbursement to the Stockholder Representative, any and all amounts then due pursuant to Article 10 in respect of any Claim or demand of a Third Party or any Loss; and (b) with regard to any Claim or demand of a Third Party or any Loss which has not been finally resolved or otherwise liquidated in amount upon such anniversary, the amount claimed or demanded by a Third Party or, if no such claim or demand has been made, the estimated maximum amount of such Claim, Loss or demand, plus an additional amount equal to one and one-half times the estimated amount of the attorneys’ fees and other costs and expenses of handling the Claim, Loss or demand through final resolution, to the extent not already included in amounts to be set aside for the Claim, Loss or demand, shall continue to be held as the Escrow Amount upon and subject to the terms of the Escrow Agreement. At the request of the Stockholder Representative upon or following the final resolution of any Claim, Loss or demand in respect of which any amount has continued to be so held, the Purchaser and the Stockholder Representative shall direct the Escrow Agent to disburse to the Stockholder Representative for payment to the Stockholders in accordance with Section 2.15 the remaining amount so held, after disbursement to the Purchaser and other Purchaser Indemnified Parties of the amounts due in respect thereof pursuant to this Agreement, and subject to retention under the Escrow Agreement as provided above for any other Claim, Loss or demand then remaining unresolved.

Deposit in Escrow. At ClosingSection 4.01 The Deposit paid on execution hereof is being deposited with Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxxxx LLP, there shall be delivered to the Escrow Agent pursuant to the Escrow Agreementattorneys for Seller, to be held and disbursed upon and subject to all of the terms and conditions set forth thereinat 0000 Xxxxxxxx, cash in the amount of Three Million Five Hundred Thousand Dollars 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ($3,500,000) (the “Escrow AmountAgent”), and as provided who shall hold the proceeds thereof in Section 2.13, the Short Year Tax Refund and the Loss Carryback Refund shall also be delivered to the Escrow Agent pursuant to the Escrow Agreement, to be so held and disbursed (and the Escrow Amount shall thereafter include the Short Year Tax Refund and the Loss Carryback Refund). The sum of $3,500,000 shall be deducted under Section 2.6(b) from the Initial Merger Consideration due to the Stockholders upon Closing, excluding any consideration attributable to any Dissenting Shares in respect of which no payment is required to be made to the holder thereof at Closing. At the request of the Stockholder Representative upon or following the second anniversary of the Effective Date, the Purchaser and the Stockholder Representative shall direct the Escrow Agent to disburse the remainder of the Escrow Amount to the Stockholder Representative, except as follows: (a) there shall be disbursed to the Purchaser and other Purchaser Indemnified Parties from the Escrow Amount, prior to any disbursement to the Stockholder Representative, any and all amounts then due pursuant to Article 10 in respect of any Claim or demand of a Third Party or any Loss; and (b) with regard to any Claim or demand of a Third Party or any Loss which has not been finally resolved or otherwise liquidated in amount upon such anniversary, the amount claimed or demanded by a Third Party or, if no such claim or demand has been made, the estimated maximum amount of such Claim, Loss or demand, plus an additional amount equal to one and one-half times the estimated amount of the attorneys’ fees and other costs and expenses of handling the Claim, Loss or demand through final resolution, to the extent not already included in amounts to be set aside for the Claim, Loss or demand, shall continue to be held as the Escrow Amount upon and subject to the terms of the Escrow Agreement. At the request of the Stockholder Representative upon or following the final resolution of any Claim, Loss or demand in respect of which any amount has continued to be so held, the Purchaser and the Stockholder Representative shall direct the Escrow Agent to disburse to the Stockholder Representative for payment to the Stockholders XXXX Fund account in accordance with Section 2.15 497 of the remaining amount Judiciary Law, conditioned as follows: (a) The parties acknowledge that Xxxxxx Agent is acting solely as a stakeholder at their request and for their convenience, that Escrow Agent shall not be deemed to be the agent of either party and that Escrow Agent shall not be liable to either party for any act or omission on its part unless taken or suffered in bad faith or in willful disregard of this Agreement or involving gross negligence. Seller and Purchaser jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses (including, but not limited to, reasonable attorneys’ fees as incurred) incurred in connection with the performance of Escrow Agents’ duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith or in willful disregard of this Agreement or involving gross negligence on the part of Escrow Agent. (b) Escrow Agent may act or refrain from action with respect to any matter referred to herein in full reliance upon and with the advice of counsel which may be selected by it (including any member of its firm) and shall be fully protected in so held, after disbursement acting or refraining from action upon the advice of such counsel. (c) Escrow Agent has acknowledged its agreement to the provisions of this Section by signing in the place indicated on the signature page of this Agreement. (d) Escrow Agent or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Deposit or any other dispute between the parties whether or not Escrow Agent is in possession of the Deposit and continues to act as Escrow Agent. (e) Escrow Agent shall be released and held harmless by Purchaser and other Purchaser Indemnified Parties Seller from all liability or obligation in the event that the deposit made hereunder, or any part thereof, shall be lost by reason of the amounts due insolvency or failure of the banking depository with whom the Deposit has been placed. The parties hereto acknowledge that Escrow Agent shall deposit the Deposit with Signature Bank in respect thereof pursuant Jericho, New York. (f) If for any reason the Closing does not occur and either party makes a written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall give written notice to this Agreementthe other party of such demand. If Escrow Agent does not receive a written objection from the other party to the proposed payment within ten (10) days after the giving of such notice, and subject TIME BEING OF THE ESSENCE, Escrow Agent is hereby authorized to retention under the make such payment. If Escrow Agreement as provided above Agent does receive such written objection within such ten (10) day period or if for any other Claimreason Escrow Agent in good faith shall elect not to make such payment, Loss Escrow Agent shall continue to hold such amount until otherwise directed by written instructions from the parties to this Agreement or demand a final judgment of a court of competent jurisdiction. However, Xxxxxx Agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Supreme Court of the County of Suffolk, State of New York. Escrow Agent shall give written notice of such deposit to Seller and Purchaser. Upon such deposit Escrow Agent shall be released and discharged of and from all further obligations and responsibilities hereunder. (g) Notwithstanding anything contained in this Agreement to the contrary, in the event that Purchaser shall fail to commence an action within thirty (30) days after Escrow Agent receives written notice of objection from Purchaser, TIME BEING OF THE ESSENCE, then remaining unresolvedEscrow Agent shall have the absolute and unconditional right to deliver the Deposit to Seller, and thereafter Escrow Agent shall be released of all of its obligations and duties hereunder.

Deposit in Escrow. At Closing(a) On (or within two business days after) the Signature Date, there shall be delivered to Buyer will deposit in escrow with the Escrow Agent pursuant to under the Deposit Escrow Agreement, to be held and disbursed upon and subject to all Agreement the sum of the terms and conditions set forth therein, cash in the amount of Three Four Million Five Nine Hundred Fifty Thousand Dollars ($3,500,0004,950,000) (the “Escrow Amount”"Deposit"), and as provided in Section 2.13, the Short Year Tax Refund and the Loss Carryback Refund shall also be delivered to the Escrow Agent pursuant to the Escrow Agreement, to be so held and disbursed (and the Escrow Amount shall thereafter include the Short Year Tax Refund and the Loss Carryback Refund). The sum of $3,500,000 shall be deducted under Section 2.6(b) from the Initial Merger Consideration due to the Stockholders upon Closing, excluding any consideration attributable to any Dissenting Shares in respect of which no payment is required to be made to the holder thereof at Closing. At the request of the Stockholder Representative upon or following the second anniversary of the Effective DateClosing, the Purchaser Buyer and the Stockholder Representative Seller shall authorize and direct the Escrow Agent to disburse pay the remainder Deposit plus accrued interest to Seller on the Closing Date, which combined sum shall be credited against the Purchase Price. In the event that the Closing shall not occur prior to the Outside Date by reason of any breach or default hereunder by Buyer as determined by a Final Order, and provided that Seller shall have performed, or shall stand ready, willing, and able to perform, its obligations under this Agreement in all material respects, the Escrow Amount to the Stockholder RepresentativeAgent, except as follows: (a) there shall be disbursed to the Purchaser and other Purchaser Indemnified Parties from the Escrow Amount, prior to any disbursement to the Stockholder Representative, any and all amounts then due pursuant to Article 10 in respect of any Claim or demand of a Third Party or any Loss; and (b) accordance with regard to any Claim or demand of a Third Party or any Loss which has not been finally resolved or otherwise liquidated in amount upon such anniversary, the amount claimed or demanded by a Third Party or, if no such claim or demand has been made, the estimated maximum amount of such Claim, Loss or demand, plus an additional amount equal to one and one-half times the estimated amount of the attorneys’ fees and other costs and expenses of handling the Claim, Loss or demand through final resolution, to the extent not already included in amounts to be set aside for the Claim, Loss or demand, shall continue to be held as the Escrow Amount upon and subject to the terms of the Deposit Escrow Agreement, shall pay the Deposit and all accrued interest to Seller, which Seller shall retain as liquidated damages, and upon such payment, all obligations of Buyer to Seller (and all obligations of Seller to Buyer) hereunder shall terminate, except as otherwise expressly provided in the Deposit Escrow Agreement with respect to such legal fees and expenses, if any, as Seller may have incurred in connection with obtaining the foregoing payment. At Seller and Buyer hereby agree that any damages which Seller or any person claiming through or under Seller may at any time allege to have been suffered by Seller or any such person arising out of or related to any breach by Buyer are not easily measured and that the request proceeds of the Stockholder Representative upon or following Deposit and all accrued interest represent a reasonable estimate of the final resolution damages to be suffered by Seller and not a penalty. Accordingly, Buyer and Seller hereby agree that the payment of the proceeds of the Deposit and all accrued interest shall be a liquidated sum in full satisfaction and complete payment of all such damages and in lieu of any Claimand all other damages, Loss including without limitation, all consequential, incidental and punitive damages, arising out of or demand related to such breach by Buyer and that no additional damages shall be payable to Seller or any such person arising out of or related to such breach (except as otherwise expressly provided in the Deposit Escrow Agreement with respect of which to such legal fees and expenses, if any, as Seller may have incurred in connection with obtaining the foregoing payment). (b) In the event that (i) the Closing does not occur prior to the Outside Date for any amount has continued to be so heldreason other than a breach or default by Buyer under this Agreement, the Purchaser or (ii) this Agreement is terminated by Buyer or Seller for any reason in accordance with Section 14 (other than a termination by Seller based upon a breach or default by Buyer under this Agreement), Buyer and the Stockholder Representative Seller shall authorize and direct the Escrow Agent to disburse return the Deposit plus interest to the Stockholder Representative for payment to the Stockholders Buyer, in accordance with Section 2.15 the remaining amount so held, after disbursement to the Purchaser and other Purchaser Indemnified Parties terms of the amounts due in respect thereof pursuant Deposit Escrow Agreement, without prejudice to any other of Buyer's remedies hereunder. (c) Concurrent with the execution of this Agreement, Buyer, Seller and Escrow Agent are entering into the Deposit Escrow Agreement, subject to retention under the Escrow Agreement as provided above for any other Claim, Loss or demand then remaining unresolvedAgent's timely receipt of the Deposit pursuant to Section 3.2(a).

Deposit in Escrow. At Closing(a) On (or within five business days after) the Signature Date, there shall be delivered to Buyer will deposit in escrow with the Escrow Agent pursuant to under the Deposit Escrow Agreement, to be held and disbursed upon and subject to all Agreement the sum of the terms and conditions set forth therein, cash in the amount of Three Seven Million Five Two Hundred Thousand Dollars dollars ($3,500,0007,200,000) (the “Escrow Amount”"Deposit"), and as provided in Section 2.13, the Short Year Tax Refund and the Loss Carryback Refund shall also be delivered to the Escrow Agent pursuant to the Escrow Agreement, to be so held and disbursed (and the Escrow Amount shall thereafter include the Short Year Tax Refund and the Loss Carryback Refund). The sum of $3,500,000 shall be deducted under Section 2.6(b) from the Initial Merger Consideration due to the Stockholders upon Closing, excluding any consideration attributable to any Dissenting Shares in respect of which no payment is required to be made to the holder thereof at Closing. At the request of the Stockholder Representative upon or following the second anniversary of the Effective DateClosing, the Purchaser Buyer and the Stockholder Representative Seller shall authorize and direct the Escrow Agent to disburse pay the remainder Deposit plus accrued interest to Seller on the Closing Date, which combined sum shall be credited against the Purchase Price. In the event that the Closing shall not occur prior to the Outside Date by reason of a material breach or default hereunder by Buyer, and provided that Seller shall have performed, or shall stand ready, willing, and able to perform, its obligations under this Agreement in all material respects, and shall not otherwise be in material breach of its obligations hereunder, the Escrow Agent, in accordance with the terms of the Deposit Escrow Amount Agreement, shall pay the Deposit and all accrued interest to Seller, which Seller shall thereupon be entitled to receive, take possession of and make use of pending any final judgment obtained by Buyer or Seller (or any written agreement entered into by Buyer and Seller) with respect to the Stockholder Representativefinal disposition thereof, except it being agreed that (i) such payment shall not constitute liquidated damages hereunder, unless Seller shall elect (in Seller's sole discretion) to accept such payment as follows: liquidated damages by written notice to Buyer and the Escrow Agent within fifteen (15) business days after Seller's receipt thereof, in the event of which election by Seller that payment shall be deemed to constitute full liquidated damages hereunder and to terminate all of Buyer's obligations to Seller (and all of Seller's obligations to Buyer) hereunder, and (ii) in the event that Seller shall not elect (as hereinbefore provided) to accept Seller's receipt of the Deposit as liquidated damages, Seller shall be entitled to (a) there shall be disbursed to the Purchaser and other Purchaser Indemnified Parties from the Escrow Amount, prior to any disbursement to the Stockholder Representative, any and Buyer's specific performance of all amounts then due pursuant to Article 10 in respect of any Claim or demand of a Third Party or any Loss; Buyer's obligations hereunder and (b) with regard to any Claim or demand of a Third Party or any Loss which has not been finally resolved or otherwise liquidated in amount upon such anniversary, (and subject to) Buyer's specific performance hereof and the amount claimed or demanded by a Third Party or, if no such claim or demand has been made, the estimated maximum amount of such Claim, Loss or demand, plus an additional amount equal to one and one-half times the estimated amount consummation of the attorneys’ fees Closing in accordance with the terms and other provisions of this Agreement, Seller shall apply the Deposit and all accrued interest thereon, less Seller's costs and expenses of handling the Claim(including court costs, Loss or demand through final resolutionattorney fees and related expenses) incurred by Seller in connection with Seller's obtaining Buyer's specific performance hereof, to Buyer's payment of the extent Purchase Price. For purposes of Buyer's foregoing grant to Seller of the right to Buyer's specific performance of all of Buyer's obligations hereunder, Buyer acknowledges that under the current circumstances applicable to ACEC, ACEC's management and Seller's management, and Seller's sale of the ACEC Membership Interest, Seller's remedies at law would not already included in amounts be adequate to be set aside for enable Seller to obtain all of the Claim, Loss benefits of the subject sale (or demand, shall continue benefits comparable thereto); and Buyer does hereby irrevocably waive any objection to be held as the Escrow Amount upon and subject Seller's foregoing right of specific performance hereunder. Notwithstanding anything to the terms contrary hereinbefore set forth, however, Seller's exclusive remedy hereunder shall be either (i) to accept Seller's receipt of the Escrow Agreement. At Deposit as liquidated damages, in the request event that Seller shall not elect (as hereinbefore provided) to pursue Buyer's specific performance of the Stockholder Representative upon or following the final resolution of any Claim, Loss or demand in respect of which any amount has continued to be so held, the Purchaser and the Stockholder Representative shall direct the Escrow Agent to disburse to the Stockholder Representative for payment to the Stockholders in accordance with Section 2.15 the remaining amount so held, after disbursement to the Purchaser and other Purchaser Indemnified Parties of the amounts due in respect thereof pursuant to Buyer's obligations under this Agreement, and subject or (ii) to retention accept Seller's receipt of the Deposit as partial performance by Buyer of Buyer's obligations under the Escrow Agreement as provided above for any other Claim, Loss or demand then remaining unresolved.this

Deposit in Escrow. At ClosingSimultaneously with the execution and delivery of this Agreement, there shall be Purchaser has delivered the Deposit to the Escrow Agent pursuant to the Escrow Agreement, to be held in escrow by the Escrow Agent on the following terms and disbursed conditions: (a) The Deposit shall be deposited in a money market account in Citibank, N.A. (b) The Escrow Agent shall deliver the Deposit to Seller or to Purchaser, as the case may be, upon the following conditions: (c) The Deposit to Seller, at the Closing or (d) the Deposit to Seller, upon receipt of written demand therefor signed by Seller, stating that Purchaser has defaulted in the performance of its obligations under this Agreement and subject Seller has terminated this Agreement on account of said default of Purchaser, provided, however, the Escrow Agent shall not honor such demand in either case until not less than 10 days after the date on which the Escrow Agent shall have provided (in the manner set forth above for the giving of notices) a copy of such demand to all Purchaser, nor thereafter if during such 10-day period the Escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of this Section; or (e) the Deposit to Purchaser, upon receipt of written demand therefor signed by Purchaser, stating that (a) this Agreement has been terminated and that Purchaser is entitled under this Agreement to the return of the terms Deposit (except that Seller may retain $100,000 to the extent permitted in accordance with Section 12(b) of this Contract), or (b) Seller has defaulted in the performance of its obligations under this Agreement and conditions Purchaser has terminated this Agreement on account of said default of Seller; provided, however, that the Escrow Agent shall not honor such demand in either case until not less than 10 days after the date on which the Escrow Agent shall have provided (in the manner set forth thereinabove for the giving of notices) a copy of such demand to Seller, cash nor thereafter if during such 10-day period the Escrow Agent shall have received written notice of objection from Seller in accordance with the amount provisions of Three Million Five Hundred Thousand Dollars this Section. ($3,500,000f) (the “Escrow Amount”)Any notice, and as provided in Section 2.13, the Short Year Tax Refund and the Loss Carryback Refund shall also be delivered demand or request to the Escrow Agent pursuant shall be sufficient only if received by the Escrow Agent within the applicable time period set forth herein, if any. Notices, demands and requests to the Escrow Agreement, to be so held and disbursed (and the Escrow Amount shall thereafter include the Short Year Tax Refund and the Loss Carryback Refund). The sum of $3,500,000 Agent shall be deducted under Section 2.6(b) from the Initial Merger Consideration due given to the Stockholders upon Closingit at 000 Xxxx Xxxxxx, excluding any consideration attributable to any Dissenting Shares in respect of which no payment is required to be made to the holder thereof at Closing. At the request of the Stockholder Representative upon or following the second anniversary of the Effective DateXxx Xxxx, the Purchaser and the Stockholder Representative shall direct the Escrow Agent to disburse the remainder of the Escrow Amount to the Stockholder RepresentativeXxx Xxxx 00000, except as follows: (a) there shall be disbursed to the Purchaser and other Purchaser Indemnified Parties from the Escrow Amount, prior to any disbursement to the Stockholder Representative, any and all amounts then due pursuant to Article 10 in respect of any Claim or demand of a Third Party or any Loss; and (b) with regard to any Claim or demand of a Third Party or any Loss which has not been finally resolved or otherwise liquidated in amount upon such anniversary, the amount claimed or demanded by a Third Party or, if no such claim or demand has been made, the estimated maximum amount of such Claim, Loss or demand, plus an additional amount equal to one and one-half times the estimated amount of the attorneys’ fees and other costs and expenses of handling the Claim, Loss or demand through final resolution, to the extent not already included in amounts to be set aside for the Claim, Loss or demand, shall continue to be held as the Escrow Amount upon and subject to the terms of the Escrow Agreement. At the request of the Stockholder Representative upon or following the final resolution of any Claim, Loss or demand in respect of which any amount has continued to be so held, the Purchaser and the Stockholder Representative shall direct the Escrow Agent to disburse to the Stockholder Representative for payment to the Stockholders in accordance with Section 2.15 the remaining amount so held, after disbursement to the Purchaser and other Purchaser Indemnified Parties of the amounts due in respect thereof pursuant to this Agreement, and subject to retention under the Escrow Agreement as provided above for any other Claim, Loss or demand then remaining unresolved.Attention Xxxxx X.