Common use of Disbursement of Escrow Amount Clause in Contracts

Disbursement of Escrow Amount. Escrow Agent shall make disbursements of the Escrow Amount pursuant to the Agreement, and shall pay Landlord (or DPR, upon Landlord's request) from the Escrow Amount as and when the same would be required of Tenant under the Agreement, except as otherwise expressly set forth in this Escrow Agreement. Only Landlord shall be authorized to submit a draw request to Escrow Agent, a copy of which shall be delivered simultaneously by Landlord to Tenant. Landlord shall make draw requests only in accordance with the terms of the Agreement. A disbursement shall be made by Escrow Agent to Landlord (or DPR, upon Landlord's request) within two (2) business days (such period, the "Objection Period") after receipt of the applicable draw request; provided, however, that Tenant shall have the right to contest any such draw request by providing notice thereof to Landlord and Escrow Agent prior to the expiration of the Objection Period, in which event any amounts objected to shall be held by Escrow Agent. Landlord and Tenant shall then in good faith discuss Tenant's objection, and attempt to reach a resolution within fourteen (14) days ("Negotiation Period"). If Landlord and Tenant reach a resolution within the Negotiation Period, then Landlord and Tenant shall jointly agree in writing upon the agreed disbursement amount and instruct Escrow Agent to immediately disburse the same; if, however, Landlord and Tenant are unable to resolve Tenant's objection within the Negotiation Period, Landlord may make a second written request to Escrow Agent to release the amount objected to by Tenant and such amount shall be immediately disbursed to Landlord for payment to the applicable contractor, supplier, subcontractor, or 718745631.7 15494101 materialman, notwithstanding Tenant's continued objection. In the event Tenant separately pays Landlord for the Excess Cost, Landlord and Tenant shall jointly instruct the Escrow Agent to disburse the amount of such payment (or the entire Escrow Amount, if Tenant has paid the entire Excess Cost to Landlord) to Tenant within three (3) days; provided, however, Escrow Agent shall not reduce the Escrow Amount unless instructed in writing by both Landlord and Tenant.

Disbursement of Escrow Amount. Following termination of the rights of Investor to the Escrow Amount, 75% of the Excess Escrow Amount shall be paid to the Company upon written instruction by the Company. The “Excess Escrow Amount” shall be the amount by which (i) the aggregate Escrow Amount held by the Escrow Agent from all Investors exceeds (ii) the sum of (x) $2,000,000 and (y) all Offering Expenses, provided that if the holders of 80% or more of the shares of Series A Preferred Stock of the Company approve, the Excess Escrow Amount may be changed to the amount by which the aggregate Escrow Amount held by the Escrow Agent from all Investors exceeds a number approved by such holders of 80% of the shares of Series A Preferred Stock, provided the number is not less than $1,800,000. The Escrow Agent shall make disbursements hold and disburse the remainder of the Escrow Amount pursuant as follows: (i) to pay all amounts owed by the Company to the AgreementEscrow Agent for any reason for fees or expenses, whether accrued before or after the date of this Agreement through the date of termination of this Agreement or disbursement of all the Escrow Amount; (ii) to pay Offering Expenses; (iii) to pay the creditors of the Company listed on Appendix A hereto an amount up to the amount listed on Appendix A hereto as and when directed by the Company; and (iv) to pay to the Internal Revenue Service or its designee the amounts directed by the Company. When the Company delivers to the Escrow Agent a certificate stating that all amounts owing to the Escrow Agent, for Offering Expenses, and to creditors listed on Appendix A hereto, including for interest and penalties, has been paid in full, or releases for all unpaid amounts have been executed and delivered by all such persons and entities, the Escrow Agent shall pay Landlord (deliver to the Company or DPR, upon Landlord's request) from its designee all remaining portions of the Escrow Amount as and when the same would be required of Tenant under the Agreement, except as otherwise expressly set forth in this Escrow Agreement. Only Landlord shall be authorized to submit a draw request to Escrow Agent, a copy of which shall be delivered simultaneously by Landlord to Tenant. Landlord shall make draw requests only in accordance with the terms of the Agreement. A disbursement shall be made by Escrow Agent to Landlord (or DPR, upon Landlord's request) within two (2) business days (such period, the "Objection Period") after receipt of the applicable draw request; provided, however, that Tenant shall have the right to contest any such draw request by providing notice thereof to Landlord and Escrow Agent prior to the expiration of the Objection Period, in which event any amounts objected to shall be then held by the Escrow Agent. Landlord and Tenant shall then in good faith discuss Tenant's objection, and attempt to reach a resolution within fourteen (14) days ("Negotiation Period"). If Landlord and Tenant reach a resolution within the Negotiation Period, then Landlord and Tenant shall jointly agree in writing upon the agreed disbursement amount and instruct Escrow Agent to immediately disburse the same; if, however, Landlord and Tenant are unable to resolve Tenant's objection within the Negotiation Period, Landlord may make a second written request to Escrow Agent to release the amount objected to by Tenant and such amount shall be immediately disbursed to Landlord for payment to the applicable contractor, supplier, subcontractor, or 718745631.7 15494101 materialman, notwithstanding Tenant's continued objection. In the event Tenant separately pays Landlord for the Excess Cost, Landlord and Tenant shall jointly instruct the Escrow Agent to disburse the amount of such payment (or the entire Escrow Amount, if Tenant has paid the entire Excess Cost to Landlord) to Tenant within three (3) days; provided, however, The Escrow Agent shall not reduce be entitled to rely on such certificates and all directions of the Escrow Amount unless instructed in writing Company and shall have no obligation to verify the accuracy of the statements made by both Landlord and Tenantthe Company.

Disbursement of Escrow Amount. (a) On or prior to the Closing Date, (x) the Special Committee shall, after consultation with its financial advisors, deliver to the Series A Holders and the Paying Agent a written notice (the “Allocation Schedule”) setting forth (i) the allocation of the Escrow Amount, on a percentage basis, as between the Series B Preferred Stock and the Common Stock and (ii) the per share amount to be paid to each class or series of Junior Holder out of the Escrow Amount, which notice shall be subject to the reasonable review by, and the calculation of the per share amount subject to the reasonable approval of, the Series A Holders, and (y) the Company shall deliver written instructions to the Paying Agent for its use in obtaining the record holder information for the Junior Holders to effectuate the mailing of the claims documentation to the Junior Holders in accordance with industry practices and applicable law. (b) Prior to the Funding Deadline, the Series A Holders shall make disbursements direct the Paying Agent, subject to Section 1.2(c) below, to disburse the Escrow Amount in accordance with the Allocation Schedule to each Junior Holder; provided that in order to receive any such payment, a Junior Holder shall have duly executed and completed all claims documentation in accordance with the instructions thereto. (c) Except as set forth in Section 1.2(b) and 1.2(d), the sole obligation of the Series A Holders with respect to this Agreement shall be to deposit the Escrow Amount pursuant to Section 1.1 and to retain the Agreement, Paying Agent to effect the payments to the Junior Holders as contemplated by Section 1.2(b). The Paying Agent shall be solely responsible for establishing the timing and shall pay Landlord (or DPR, upon Landlord's request) from procedures for submitting and paying claims against the Escrow Amount as and when the same would be required of Tenant under the Agreement, except as otherwise expressly set forth in this Escrow Agreement. Only Landlord shall be authorized to submit a draw request to Escrow Agent, a copy of which shall be delivered simultaneously by Landlord to Tenant. Landlord shall make draw requests only for processing disbursements thereof in accordance with the terms of the Agreement. A disbursement shall be made by Escrow Agent to Landlord (or DPR, upon Landlord's request) within two (2) business days (such period, the "Objection Period") after receipt of the applicable draw requesttherewith; provided, however, that Tenant all claims documentation distributed by the Paying Agent shall have the right to contest any such draw request by providing notice thereof to Landlord and Escrow Agent be prepared, prior to the expiration Closing Date, by the Series A Holders and shall include such reasonable terms and conditions as they shall determine, subject to review by (but not the approval of) the Special Committee, including, without limitation, a full general release in respect of their shares and their statuses as stockholders, as well as all interests in and/or contractual or business relationships with the released parties and dissenters’ or appraisal rights, in favor of the Objection PeriodCompany, its Affiliates and their respective officers, directors, managers, employees, partners, members and stockholders. Notwithstanding anything to the contrary contained herein, in which event any amounts objected to shall be held by the Escrow Agent. Landlord and Tenant shall then in good faith discuss Tenant's objection, and attempt to reach a resolution within fourteen (14) days ("Negotiation Period"). If Landlord and Tenant reach a resolution within the Negotiation Period, then Landlord and Tenant shall jointly agree in writing upon the agreed disbursement amount and instruct Escrow Agent to immediately disburse the same; if, however, Landlord and Tenant are unable to resolve Tenant's objection within the Negotiation Period, Landlord may make a second written request to Escrow Agent to release the amount objected to by Tenant and such amount shall be immediately disbursed to Landlord for payment to the applicable contractor, supplier, subcontractorAgreement, or 718745631.7 15494101 materialmanany in claims documentation, notwithstanding Tenant's continued objection. In the event Tenant separately pays Landlord for the Excess Cost, Landlord and Tenant shall jointly instruct the Escrow Agent to disburse the amount receipt of such payment (or the entire Escrow Amount, if Tenant has paid the entire Excess Cost to Landlord) to Tenant within three (3) days; provided, however, Escrow Agent shall not reduce any portion of the Escrow Amount unless instructed by a Junior Holder shall be conditioned upon the receipt of such Junior Holder’s signature to the aforesaid general release. Neither the Series A Holders nor the Company shall be liable for any acts or omissions of the Paying Agent in writing complying with its obligations under the escrow agreement or otherwise in facilitating the claims process or disbursement of the Escrow Amount. (d) All costs, fees and expenses of the Paying Agent shall be borne by both Landlord and Tenantthe Series A Holders.

Disbursement of Escrow Amount. Escrow Agent shall make disbursements of the Escrow Amount pursuant to the Agreement, and shall pay Landlord (or DPR, upon Landlord's requesta) from the Escrow Amount as and when the same would be required of Tenant under the Agreement, except as otherwise expressly set forth in this Escrow Agreement. Only Landlord shall be authorized to submit a draw request to Escrow Agent, a copy of which shall be delivered simultaneously by Landlord to Tenant. Landlord shall make draw requests only Unless sooner disbursed in accordance with the terms provisions of Section 4(b) below, on the Agreement. A disbursement shall be made by date twelve (12) months after the Closing Date (the "Escrow Disbursement Date"), the Escrow Agent shall disburse the Escrow Amount to Landlord (or DPR, upon Landlord's request) within two (2) business days (such period, the "Objection Period") after receipt of the applicable draw requestSellers; provided, however, that Tenant shall have the right to contest any such draw request by providing notice thereof to Landlord and Escrow Agent prior to the expiration of the Objection Periodif there is a Disputed Amount (as defined below), in which event any amounts objected to shall be held by Escrow Agent. Landlord and Tenant shall then in good faith discuss Tenant's objection, and attempt to reach a resolution within fourteen (14) days ("Negotiation Period"). If Landlord and Tenant reach a resolution within the Negotiation Period, then Landlord and Tenant shall jointly agree in writing upon the agreed disbursement amount and instruct Escrow Agent to immediately disburse the same; if, however, Landlord and Tenant are unable to resolve Tenant's objection within the Negotiation Period, Landlord may make a second written request to Escrow Agent to release the amount objected to by Tenant and such amount shall be immediately disbursed to Landlord for payment to the applicable contractor, supplier, subcontractor, or 718745631.7 15494101 materialman, notwithstanding Tenant's continued objection. In the event Tenant separately pays Landlord for the Excess Cost, Landlord and Tenant shall jointly instruct the Escrow Agent to disburse the amount of such payment shall be reduced by the amount of such Disputed Amount, but shall not be a negative number. For purposes hereof, the term "Disputed Amount" shall mean the amount reasonably estimated in good faith by Buyer, and communicated (or as provided in Section 11 of this Escrow Agreement and with explanation regarding how such estimated amount was calculated) to the entire Escrow Agent and Sellers prior to the Escrow Disbursement Date, that relates to unresolved claims for indemnification brought by Buyer pursuant to the terms of the Purchase Agreement. (b) In any event and at any time, including, without limitation, upon the termination of the Purchase Agreement in accordance with Sections 11.1 and 11.2 thereof, the Escrow Amount, if Tenant has paid or any portion thereof, shall be disbursed by the entire Excess Cost to Landlord) to Tenant within three (3) days; provided, however, Escrow Agent shall not reduce promptly upon (i) the receipt of a final, non-appealable order of a court of competent jurisdiction advising the Parties of the amount of the Escrow Fund to be disbursed and the recipients thereof; (ii) a final order issued in a binding arbitration; or (iii) joint written instructions from Buyer and Sellers advising the Escrow Agent of the portion of the Escrow Amount unless instructed in writing by both Landlord to be disbursed and Tenantthe recipients thereof.

Disbursement of Escrow Amount. 17.1 Following the determination, in accordance with Section 2.3 of the Purchase Agreement, of the Final Closing Statement and Seller’s failure to pay, within two Business Days of the determination of the Final Net Working Capital and the Final Closing Cash as provided in Section 2.3(c), any shortfall due to Buyer in accordance with Section 2.3(d), Buyer may unilaterally deliver to Escrow Agent (providing a copy to Seller), a certificate substantially in the form of Exhibit A attached hereto (a “Working Capital Instruction”), instructing Escrow Agent to disburse to Buyer from the Escrow Account an amount equal to the unpaid portion of the amount by which the sum of the Estimated Net Working Capital and the Estimated Closing Cash exceeds the sum of the Final Net Working Capital and the Final Closing Cash reflected on the Final Closing Statement. 17.2 From time to time on or before the first anniversary of the Closing Date (the “Claim Deadline”), Buyer may give written notice to Seller and Escrow Agent specifying in reasonable detail the nature and dollar amount (if known, and a good faith estimate of the dollar amount if not known) of any claim(s) for indemnification to which the Buyer Indemnified Parties may be entitled under Article IX of the Purchase Agreement (each, an “Escrow Claim”). Escrow Agent shall make disbursements not be required to inquire into or consider whether an Escrow Claim or the underlying indemnification claim complies with the requirements of the Purchase Agreement. 17.3 If Buyer makes any Escrow Claim on or prior to the Claim Deadline, then Escrow Agent shall disburse to Buyer funds from the Indemnity Escrow Amount with respect to such Escrow Claim pursuant to (and only pursuant to) either (i) a written disbursement notice in substantially the form of Exhibit B attached hereto (a “Indemnity Joint Instruction”) or (ii) a final, non-appealable order of a court of competent jurisdiction (a “Court Order”). An Indemnity Joint Instruction or a Court Order may be referred to hereinafter as a “Disbursement Directive.” 17.4 On the first Business Day following the Claim Deadline, the Escrow Agent shall release to Seller the entire balance of the Escrow Amount remaining at the time of the Claim Deadline, less (i) any amounts payable (but not yet paid) to Buyer pursuant to a Disbursement Directive and (ii) the Agreementaggregate amount of any and all Escrow Claims made on or before the Claim Deadline with respect to which the Escrow Agent has not received a Disbursement Directive (the “Claim Reserve”). Any Claim Reserve shall be maintained in escrow following the Claim Deadline, and shall pay Landlord be disbursed promptly to Buyer or Seller, as the case may be, pursuant to (or DPRand only pursuant to), upon Landlord's request) from the Escrow Amount as and when the same would be required of Tenant under the Agreement, except as otherwise expressly set forth in this Escrow Agreement. Only Landlord shall be authorized to submit a draw request to Escrow Agent, a copy of which shall be delivered simultaneously by Landlord to Tenant. Landlord shall make draw requests only in accordance with the terms of the Agreement. A disbursement of, a Disbursement Directive. 17.5 Until such time as this Agreement shall be made by Escrow Agent to Landlord (terminate, interest or DPR, upon Landlord's request) within two (2) business days (such period, the "Objection Period") after receipt of the applicable draw request; provided, however, that Tenant shall have the right to contest any such draw request by providing notice thereof to Landlord and Escrow Agent prior to the expiration of the Objection Period, in which event any amounts objected to shall be held by Escrow Agent. Landlord and Tenant shall then in good faith discuss Tenant's objection, and attempt to reach a resolution within fourteen (14) days ("Negotiation Period"). If Landlord and Tenant reach a resolution within the Negotiation Period, then Landlord and Tenant shall jointly agree in writing upon the agreed disbursement amount and instruct Escrow Agent to immediately disburse the same; if, however, Landlord and Tenant are unable to resolve Tenant's objection within the Negotiation Period, Landlord may make a second written request to Escrow Agent to release the amount objected to by Tenant and such amount shall be immediately disbursed to Landlord for payment to the applicable contractor, supplier, subcontractor, or 718745631.7 15494101 materialman, notwithstanding Tenant's continued objection. In the event Tenant separately pays Landlord for the Excess Cost, Landlord and Tenant shall jointly instruct the Escrow Agent to disburse the amount of such payment (or the entire Escrow Amount, if Tenant has paid the entire Excess Cost to Landlord) to Tenant within three (3) days; provided, however, Escrow Agent shall not reduce other income earned on the Escrow Amount unless instructed in writing by both Landlord and Tenantshall become part of the Escrow Amount.