Common use of Disbursement of Escrow Amount Clause in Contracts

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 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 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 procedures for submitting and paying claims against the Escrow Amount and for processing disbursements thereof in accordance therewith; provided, however, that all claims documentation distributed by the Paying Agent shall be prepared, prior to the 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 Company, its Affiliates and their respective officers, directors, managers, employees, partners, members and stockholders. Notwithstanding anything to the contrary contained herein, in the Escrow Agreement, or any in claims documentation, the receipt of any portion of the Escrow Amount 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 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 the Series A Holders.

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 Unless sooner disbursed in accordance with industry practices and applicable law. (b) Prior to the Funding Deadline, the Series A Holders shall direct the Paying Agent, subject to provisions of Section 1.2(c4(b) below, to on the date twelve (12) months after the Closing Date (the "Escrow Disbursement Date"), the Escrow Agent shall 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 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 procedures for submitting and paying claims against the Escrow Amount and for processing disbursements thereof in accordance therewithSellers; provided, however, that all claims documentation distributed if there is a Disputed Amount (as defined below), the amount of such payment shall be reduced by the Paying 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 (as provided in Section 11 of this Escrow Agreement and with explanation regarding how such estimated amount was calculated) to the Escrow Agent shall be prepared, and Sellers prior to the Closing Escrow Disbursement Date, that relates to unresolved claims for indemnification brought by Buyer pursuant to the Series A Holders terms of the Purchase Agreement. (b) In any event and shall include such reasonable terms and conditions as they shall determine, subject to review by (but not the approval of) the Special Committeeat any time, 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 upon the released parties and dissenters’ or appraisal rights, in favor termination of the CompanyPurchase Agreement in accordance with Sections 11.1 and 11.2 thereof, its Affiliates and their respective officers, directors, managers, employees, partners, members and stockholders. Notwithstanding anything to the contrary contained herein, in the Escrow AgreementAmount, or any in claims documentationportion thereof, shall be disbursed by the Escrow Agent promptly upon (i) the receipt of any 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 by a Junior Holder shall to be conditioned upon disbursed and 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 complying with its obligations under the escrow agreement or otherwise in facilitating the claims process or disbursement of the Escrow Amountrecipients thereof. (d) All costs, fees and expenses of the Paying Agent shall be borne by the Series A Holders.

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 (aproviding 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) On 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 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 Closing DateClaim Deadline, then Escrow Agent shall disburse to Buyer funds from the Indemnity Escrow Amount with respect to such Escrow Claim pursuant to (xand only pursuant to) 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 either (i) a written disbursement notice in substantially the allocation 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 AmountAmount remaining at the time of the Claim Deadline, on less (i) any amounts payable (but not yet paid) to Buyer pursuant to a percentage basis, as between the Series B Preferred Stock and the Common Stock Disbursement Directive and (ii) the per share aggregate amount of any and all Escrow Claims made on or before the Claim Deadline with respect to be paid to each class or series of Junior Holder out of which the Escrow Amount, which notice Agent has not received a Disbursement Directive (the “Claim Reserve”). Any Claim Reserve shall be subject to maintained in escrow following the reasonable review byClaim Deadline, and shall be disbursed promptly to Buyer or Seller, as the calculation of the per share amount subject case may be, pursuant to the reasonable approval of, the Series A Holders(and only pursuant to), 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 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 paymentterms of, a Junior Holder shall have duly executed and completed all claims documentation in accordance with the instructions theretoDisbursement Directive. (c) Except 17.5 Until such time 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 terminate, interest or other income earned on the Escrow Amount pursuant to Section 1.1 and to retain the 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 procedures for submitting and paying claims against the Escrow Amount and for processing disbursements thereof in accordance therewith; provided, however, that all claims documentation distributed by the Paying Agent shall be prepared, prior to the 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 Company, its Affiliates and their respective officers, directors, managers, employees, partners, members and stockholders. Notwithstanding anything to the contrary contained herein, in the Escrow Agreement, or any in claims documentation, the receipt of any portion of the Escrow Amount 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 complying with its obligations under the escrow agreement or otherwise in facilitating the claims process or disbursement become part of the Escrow Amount. (d) All costs, fees and expenses of the Paying Agent shall be borne by the Series A Holders.

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 Escrow Agent a written notice (the “Allocation Schedule”) setting forth (i) the allocation shall make disbursements 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 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 the Agreement, and to retain the 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 procedures for submitting and paying claims against pay Landlord (or DPR, upon Landlord's request) from the Escrow Amount as and for processing disbursements thereof 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 therewithwith 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 all claims documentation distributed Tenant shall have the right to contest any such draw request by the Paying providing notice thereof to Landlord and Escrow Agent shall be prepared, prior to the Closing Date, by expiration of 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 rightsObjection Period, in favor of 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 CompanyNegotiation Period, its Affiliates then Landlord and their respective officersTenant shall jointly agree in writing upon the agreed disbursement amount and instruct Escrow Agent to immediately disburse the same; if, directorshowever, managersLandlord and Tenant are unable to resolve Tenant's objection within the Negotiation Period, employees, partners, members Landlord may make a second written request to Escrow Agent to release the amount objected to by Tenant and stockholders. Notwithstanding anything such amount shall be immediately disbursed to Landlord for payment to the contrary contained hereinapplicable contractor, in 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 AgreementAgent to disburse the amount of such payment (or the entire Escrow Amount, or any in claims documentationif Tenant has paid the entire Excess Cost to Landlord) to Tenant within three (3) days; provided, the receipt of any portion of however, Escrow Agent shall not reduce the Escrow Amount unless instructed in writing 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 complying with its obligations under the escrow agreement or otherwise in facilitating the claims process or disbursement of the Escrow Amountboth Landlord and Tenant. (d) All costs, fees and expenses of the Paying Agent shall be borne by the Series A Holders.

Disbursement of Escrow Amount. (a) On or prior Following termination of the rights of Investor to the Closing DateEscrow Amount, (x) 75% of the Special Committee shall, after consultation with its financial advisors, deliver Excess Escrow Amount shall be paid to the Series A Holders and Company upon written instruction by the Paying Agent a written notice (Company. The “Excess Escrow Amount” shall be the “Allocation Schedule”) setting forth amount by which (i) the allocation of aggregate Escrow Amount held by the Escrow Amount, on a percentage basis, as between the Series B Preferred Stock and the Common Stock and Agent from all Investors exceeds (ii) the per share amount to be paid to each class or series sum 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, (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 shall deliver written instructions approve, the Excess Escrow Amount may be changed to the Paying amount by which the aggregate Escrow Amount held by the Escrow Agent for its use in obtaining the record holder information for the Junior Holders to effectuate the mailing from all Investors exceeds a number approved by such holders of 80% of the claims documentation to the Junior Holders in accordance with industry practices and applicable law. (b) Prior to the Funding Deadline, the shares of Series A Holders Preferred Stock, provided the number is not less than $1,800,000. The Escrow Agent shall direct the Paying Agent, subject to Section 1.2(c) below, to hold and 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 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 procedures for submitting and paying claims against the Escrow Amount and for processing disbursements thereof in accordance therewith; provided, however, that all claims documentation distributed by the Paying Agent shall be prepared, prior to the 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 Company, its Affiliates and their respective officers, directors, managers, employees, partners, members and stockholders. Notwithstanding anything to the contrary contained herein, in the Escrow Agreement, or any in claims documentation, the receipt of any portion remainder of the Escrow Amount as follows: (i) to pay all amounts owed by a Junior Holder shall be conditioned upon the receipt of such Junior Holder’s signature Company to the aforesaid general release. Neither the Series A Holders nor the Company shall be liable Escrow Agent for any acts reason for fees or omissions expenses, whether accrued before or after the date of this Agreement through the Paying Agent in complying with its obligations under the escrow agreement or otherwise in facilitating the claims process date of termination of this Agreement or disbursement of all the Escrow Amount. ; (dii) All costs, fees and expenses to pay Offering Expenses; (iii) to pay the creditors of the Paying 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 deliver to the Company or its designee all remaining portions of the Escrow Amount then held by the Escrow Agent. The Escrow Agent shall be borne entitled to rely on such certificates and all directions of the Company and shall have no obligation to verify the accuracy of the statements made by the Series A HoldersCompany.