Common use of Disbursement of Escrow Funds Clause in Contracts

Disbursement of Escrow Funds. (a) If the Buyer (or Buyer Indemnified Persons) incurs Damages in connection with any Breach or other claim under the Merger Agreement for which the Buyer or Buyer Indemnified Persons are entitled to reimbursement under the Merger Agreement, (and, in the case of Damages subject to the $100,000 deduction pursuant to Section 9.5 of the Merger Agreement, such Damages exceed, in the aggregate, $100,000), Buyer shall be entitled to a disbursement of funds from the Escrow Fund for such Damages in accordance with the provisions of the Merger Agreement and this Section 3. (b) From time to time on or before the two-year anniversary of the Closing Date (the “Escrow Termination Date”), Buyer may give written notice to Seller Representative and Escrow Agent (an “Indemnity Notice”) specifying (i) in reasonable detail, the nature and dollar amount of any claim (an “Indemnity Claim”) it has with respect to any Breach, and (ii) the amount of Damages incurred in connection with such Indemnity Claim. Buyer may make more than one claim with respect to any underlying state of facts. If Seller Representative gives written notice to Buyer and Escrow Agent disputing any Indemnity Claim (an “Indemnity Counter Notice”) within 15 days following receipt by Seller Representative of the applicable Indemnity Notice, such Indemnity Claim shall be resolved by Buyer and Seller Representative as provided in Section 3(d) of this Escrow Agreement. Until such resolution, the amount Buyer alleges as Damages shall not be paid by the Escrow Agent to either Buyer or Sellers. (c) If no Indemnity Counter Notice is received by Escrow Agent within such 15-day period, Escrow Agent shall pay the dollar amount of the Damages set forth in the Buyer’s Indemnity Notice to Buyer from (and only to the extent of) the Escrow Fund, (provided that no amount shall be due to Buyer for Damages for Claims subject to the $100,000 threshold under Section 9.5 of the Merger Agreement until total Damages for all such Claims exceed $100,000, and then only to the extent that such total Damages exceed $100,000). Escrow Agent shall not be required to inquire into or consider whether an Indemnity Claim complies with the requirements of the Merger Agreement, and shall be entitled to conclusively rely on an Indemnity Claim in making a disbursement under this subparagraph (c). (d) If an Indemnity Counter Notice is given with respect to an Indemnity Claim, Escrow Agent shall make payment with respect thereto only in accordance with (i) joint written instructions of Buyer and Seller Representative or (ii) a final non-appealable order of a court of competent jurisdiction. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall be entitled to act on such court order and legal opinion.

Disbursement of Escrow Funds. (a) If the Buyer (or Buyer Indemnified Persons) incurs Damages in connection with any Breach or other claim So long as no Event of Default shall have occurred and be continuing under the Merger Agreement for Note or the Security Deed, Lender and Borrower agree that the Escrow Funds shall be used to refund Security Deposits to tenants which have not forfeited same under their lease at the Property and pay such tenant improvement costs, leasing commissions paid to third parties and Charter Properties, Inc., Borrower's legal fees pertaining specifically to the leasing of space at the Property or property management, and major repairs and replacements of the improvements located on the Property which are reasonable and customary in the market in which the Buyer or Buyer Indemnified Persons Property is located ("Capital Expenditures"), and improvements to the Property which are entitled approved by Lender in its sole and absolute discretion. In order to reimbursement under the Merger Agreementobtain a disbursement of Escrow Funds, Borrower shall deliver a written request to Escrow Agent and Lender (anda "Funding Request") containing such documentation, evidence and lien waivers (in the case of Damages subject brokerage fees or expenses for construction, maintenance or repairs) as Lender shall reasonably request ("Backup Documentation") to substantiate the $100,000 deduction pursuant expenses to Section 9.5 be funded from the Escrow Funds and satisfy any lien rights associated with such items of expense. Disbursements of the Merger AgreementEscrow Funds under this Agreement shall thereafter be made by Escrow Agent only upon receipt of written directions from Lender approving in whole or in part the Funding Request. Within ten (10) calendar days of receipt of any Funding Request, such Damages exceedLender shall notify Escrow Agent of the amount, and the manner in which Escrow Funds are to be distributed. Lender, at its option, may require Escrow Agent to distribute Escrow Funds to Borrower, or directly to any third parties who are entitled to receive any portion of the Escrow Funds. Lender shall not be obligated to request disbursements of the Escrow Funds more often than once in any calendar month; provided, however, Lender hereby agrees that it shall also review and approve (or disapprove) a Funding Request within ten (10) days of a written request by Borrower containing the Backup Documentation and a fully executed lease for space at the Property. Except as set forth in Section 6.6 of said Third Amendment, in addition to disbursements for Capital Expenditures and Security Deposits, in the aggregate, event the Escrow Funds (excluding Security Deposits which have not been forfeited by any tenant) shall exceed One Hundred Thousand Dollars ($100,000), Buyer shall be entitled to a disbursement ) at the end of funds from any calendar quarter during the Escrow Fund for such Damages in accordance with the provisions of the Merger Agreement and this Section 3. (b) From time to time on or before the two-year anniversary of the Closing Date (the “Escrow Termination Date”)Term, Buyer may give written notice to Seller Representative and Escrow Agent (an “Indemnity Notice”) specifying (i) in reasonable detail, the nature and dollar amount of any claim (an “Indemnity Claim”) it has with respect to any Breach, and (ii) the amount of Damages incurred Escrow Funds in connection with such Indemnity Claim. Buyer may make more than one claim with respect to any underlying state excess of facts. If Seller Representative gives written notice to Buyer and Escrow Agent disputing any Indemnity Claim (an “Indemnity Counter Notice”) within 15 days following receipt by Seller Representative of the applicable Indemnity Notice, such Indemnity Claim said $100,000 shall be resolved by Buyer paid to Lender and Seller Representative as provided in Section 3(d) of this Escrow Agreement. Until such resolution, applied against the amount Buyer alleges as Damages shall not be paid by outstanding principal balance under the Escrow Agent to either Buyer or SellersNote. (c) If no Indemnity Counter Notice is received by Escrow Agent within such 15-day period, Escrow Agent shall pay the dollar amount of the Damages set forth in the Buyer’s Indemnity Notice to Buyer from (and only to the extent of) the Escrow Fund, (provided that no amount shall be due to Buyer for Damages for Claims subject to the $100,000 threshold under Section 9.5 of the Merger Agreement until total Damages for all such Claims exceed $100,000, and then only to the extent that such total Damages exceed $100,000). Escrow Agent shall not be required to inquire into or consider whether an Indemnity Claim complies with the requirements of the Merger Agreement, and shall be entitled to conclusively rely on an Indemnity Claim in making a disbursement under this subparagraph (c). (d) If an Indemnity Counter Notice is given with respect to an Indemnity Claim, Escrow Agent shall make payment with respect thereto only in accordance with (i) joint written instructions of Buyer and Seller Representative or (ii) a final non-appealable order of a court of competent jurisdiction. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall be entitled to act on such court order and legal opinion.

Disbursement of Escrow Funds. (a) If Escrow Agent shall only disburse the Escrow Funds as follows: 2.3.1. At such time as Buyer (or Buyer Indemnified Persons) incurs Damages in connection with any Breach or other claim under the Merger Agreement for which the Buyer or Buyer Indemnified Persons are entitled to reimbursement under the Merger Agreement, (andasserts, in the case of Damages subject to the $100,000 deduction pursuant to Section 9.5 of the Merger Agreementgood faith, such Damages exceed, in the aggregate, $100,000), Buyer shall be entitled to a claim for disbursement of funds from the Escrow Fund for such Damages in accordance with the provisions of the Merger Agreement and this Section 3. Holdback Account (b) From time to time on or before the two-year anniversary of the Closing Date (the a “Escrow Termination DateClaim”), Buyer may shall give written notice thereof (the “Disbursement Request”) to Seller Representative and Escrow Agent Agent. Any such Disbursement Request shall describe in reasonable detail Buyer’s calculations of the amount of Escrow Funds due Buyer (an the “Indemnity Claim Amount”) and the facts and/or circumstances giving rise to such Claim, and contain appropriate supporting documentation with respect thereto. Seller shall have ten (10) Business Days after receipt of the Disbursement Request to object to the disbursement of the Claim Amount requested by Buyer by submitting a notice of objection (the “Objection Notice”) specifying to Buyer and Escrow Agent, which objection shall be solely on the grounds that Seller disagrees, in good faith, with Buyer’s entitlement to or calculations of the Claim Amount set forth in the applicable Disbursement Request. If Seller delivers the Objection Notice within such ten (i10) in reasonable detailBusiness Day period, the nature and dollar amount of any claim (an “Indemnity Claim”) it has then Section 2.3.4 hereof shall apply with respect to any Breach, and (ii) Escrow Agent’s disbursement of the amount of Damages incurred in connection with such Indemnity Claim. Buyer may make more than one claim with respect to any underlying state of factsClaim Amount. If Seller Representative gives written notice does not deliver the Objection Notice to Buyer and Escrow Agent disputing any Indemnity Claim (an “Indemnity Counter Notice”) within 15 days following receipt by Seller Representative of the applicable Indemnity Notice, such Indemnity Claim shall be resolved by Buyer and Seller Representative as provided in Section 3(d) of this Escrow Agreement. Until such resolution, the amount Buyer alleges as Damages shall not be paid by the Escrow Agent to either Buyer or Sellers. (c) If no Indemnity Counter Notice is received by Escrow Agent within such 15-day ten (10) Business Day period, then Escrow Agent shall pay disburse the dollar amount of the Damages set forth in the Buyer’s Indemnity Notice Claim Amount to Buyer from (and only to the extent of) the Escrow Fund, (provided that no amount shall be due to Buyer for Damages for Claims subject to the $100,000 threshold under Section 9.5 of the Merger Agreement until total Damages for all such Claims exceed $100,000, and then only to the extent that such total Damages exceed $100,000). Escrow Agent shall not be required to inquire into or consider whether an Indemnity Claim complies with the requirements of the Merger Agreement, and shall be entitled to conclusively rely on an Indemnity Claim in making a disbursement under this subparagraph (c). (d) If an Indemnity Counter Notice is given with respect to an Indemnity Claim, Escrow Agent shall make payment with respect thereto only in accordance with the Disbursement Request within three (i3) joint written instructions Business Days following the expiration of such ten (10) Business Day period. Buyer shall have the right to deliver multiple Disbursement Requests and Seller Representative or (ii) a final non-appealable order of a court of competent jurisdiction. Any court order receive multiple disbursements from the Escrow Funds but shall be accompanied by a legal opinion by counsel only submit one Disbursement Request for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall be entitled to act on such court order and legal opinioneach Claim.

Disbursement of Escrow Funds. The Escrow Agent is hereby directed and authorized to distribute the Escrow Fund to the Selling Lenders and/or the Company as provided in this Section 3(c). (aI) If On the Buyer (or Buyer Indemnified Persons) incurs Damages in connection with any Breach or other claim under Effective Date, Parent and the Merger Agreement for which Selling Lenders' Representative shall deliver to the Buyer or Buyer Indemnified Persons are entitled to reimbursement under the Merger Agreement, (and, Escrow Agent a certificate signed by an officer of each of them substantially in the case form attached hereto as Exhibit B-1 (the "DEPOSIT OFFICER'S CERTIFICATE"). Promptly following receipt of Damages the Deposit Officer's Certificate (but in no event later than three (3) business days thereafter), the Escrow Agent shall distribute to Parent the sum of $1,000,000, plus all interest accrued on the Escrow Fund through the Effective Date. (II) From and after the Effective Date, subject to the $100,000 deduction pursuant to Section 9.5 of the Merger Agreement, such Damages exceed, in the aggregate, $100,0003(d), Buyer as long as this Escrow Agreement continues in effect, the Escrow Agent shall be entitled make distributions to a disbursement of funds the Company from the Escrow Fund for such Damages in accordance with the provisions of the Merger Agreement and this Section 3. (b) From from time to time on or before in respect of Reimbursable Obligations as provided in this paragraph. When Reimbursable Obligations have been incurred by the two-year anniversary Company, the Company shall deliver to the Escrow Agent a certificate signed by an officer of the Closing Date Company substantially in the form attached hereto as Exhibit B-2 (the “"REIMBURSEMENT OFFICER'S CERTIFICATE"). The amount requested by the Company to be paid in respect of Reimbursable Obligations shall be referred to as the "REIMBURSEMENT." At the same time, the Company shall deliver to the Selling Lenders' Representative a copy of the Reimbursement Officer's Certificate, together with supporting documentation reflecting in reasonable detail the basis for the requested Reimbursement and the calculation of the Reimbursement. (The Escrow Termination Date”)Agent may conclusively presume that the Company delivered the Reimbursement Officer's Certificate and supporting documentation to the Selling Lenders' Representative on the same date that such Reimbursement Officer's Certificate was delivered to the Escrow Agent.) The Company promptly shall provide to the Selling Lenders' Representative such invoices, Buyer receipts and other documents as the Selling Lenders' Representative may give reasonably request in order to verify the Company's statements in the Reimbursement Officer's Certificate or the validity and amount of any Reimbursable Obligations specified therein. In each instance that the Escrow Agent receives such a Reimbursement Officer's Certificate, the Escrow Agent shall, within three (3) business days after its receipt of such Reimbursement Officer's Certificate and at least five (5) days prior to the proposed distribution from the Escrow Fund, deliver written notice to Seller Representative and Escrow Agent (an “Indemnity Notice”) specifying (i) in reasonable detail, the nature and dollar amount of any claim (an “Indemnity Claim”) it has with respect to any Breach, and (ii) the amount of Damages incurred in connection with such Indemnity Claim. Buyer may make more than one claim with respect to any underlying state of facts. If Seller Representative gives written notice to Buyer and Escrow Agent disputing any Indemnity Claim (an “Indemnity Counter Notice”) within 15 days following receipt by Seller Selling Lenders' Representative of the applicable Indemnity Notice, Escrow Agent's intent to make the requested Reimbursement from the Escrow Fund ("NOTICE OF INTENT TO DISTRIBUTE TO COMPANY"). In the event the Escrow Agent delivers such Indemnity Claim shall be resolved Notice of Intent to Distribute to Company and the Escrow Agent receives no objection to such Notice of Intent to Distribute to Company in the form required by Buyer and Seller Representative as provided in Section 3(d) of this Escrow Agreement. Until such resolution, hereof from the amount Buyer alleges as Damages shall not be paid Selling Lenders' Representative within five (5) days after delivery by the Escrow Agent of the Notice of Intent to either Buyer Distribute to Company, then the Escrow Agent hereby is authorized and directed to distribute from the Escrow Fund the amount of the Reimbursement requested by the Company in the Company Officer's Certificate for Reimbursement or Sellersthe balance then constituting the Escrow Fund if less than the requested Reimbursement. Amounts distributed from the Escrow Fund to the Company shall be paid by check or by wire transfer according to the instructions provided by the Company in writing to the Escrow Agent. (cIII) If no Indemnity Counter Notice is received by Escrow Agent within such 15-day periodOn the date of entry of a final, Escrow Agent shall pay the dollar amount of the Damages set forth in the Buyer’s Indemnity Notice to Buyer from (and only to the extent of) the Escrow Fund, (provided that no amount shall be due to Buyer for Damages for Claims subject to the $100,000 threshold under Section 9.5 of the Merger Agreement until total Damages for all such Claims exceed $100,000, and then only to the extent that such total Damages exceed $100,000). Escrow Agent shall not be required to inquire into or consider whether an Indemnity Claim complies with the requirements of the Merger Agreement, and shall be entitled to conclusively rely on an Indemnity Claim in making a disbursement under this subparagraph (c). (d) If an Indemnity Counter Notice is given with respect to an Indemnity Claim, Escrow Agent shall make payment with respect thereto only in accordance with (i) joint written instructions of Buyer and Seller Representative or (ii) a final non-appealable order dismissing with prejudice, settling or otherwise terminating (without right to re-file) the Litigation with respect to the Company (the "TERMINATION DATE"), the Company and the Selling Lenders' Representative shall deliver to the Escrow Agent a certificate signed by any officer of a court each of competent jurisdictionthe Company and the Selling Lenders' Representative substantially in the form attached hereto as Exhibit B-3 (the "TERMINATION OFFICERS' CERTIFICATE"). Any court order In the event the Escrow Agent receives such Termination Officer's Certificate, the Escrow Agent shall, within three (3) business days after its receipt thereof, distribute the entire amount of the Escrow Fund to the Selling Lenders (less such amount that in the reasonable judgment of the Company is necessary to satisfy any then pending and unsatisfied Reimbursable Obligations specified in any Reimbursement Officer's Certificate delivered to the Escrow Agent prior to the Termination Date). The amount to be distributed to each of the Selling Lenders shall be accompanied by a legal opinion by counsel stated in the Termination Officer's Certificate (which amounts shall be in proportion to their respective interests in the Company Debt, as such interest is reflected for each Selling Lender in the allocations on Exhibit A hereto). Upon the date on which all remaining Reimbursable Obligations specified in timely Reimbursement Officer's Certificates have been paid or otherwise resolved, Selling Lenders' Representative shall provide written notice to the Escrow Agent for the presenting party satisfactory to distribution of the remaining portion of the Escrow Agent Fund to the effect that Selling Lenders and, if applicable, to the order is final and non-appealableSelling Lenders' Representative in accordance with Section 5(c) hereof, as well as the amount to be paid to each such party. Amounts distributed from the Escrow Agent Fund to the Selling Lenders shall be entitled paid by wire transfer according to act such wire instructions as set forth on Exhibit A for each Selling Lender (or according to such court order and legal opinionother wire instructions as a Selling Lender may subsequently provide in writing to the Escrow Agent).

Disbursement of Escrow Funds. The Escrow Agent is hereby directed and authorized to distribute the Escrow Funds either to the Selling Lenders or to the Minority Stockholders as provided in this Section 3(c). (aI) If On or before the Buyer date one hundred eighty-five (185) days after the date hereof (or Buyer Indemnified Persons) incurs Damages in connection with if such date is not a business day, the immediately following business day), the Company shall deliver to the Escrow Agent, Davel and the Selling Lenders' Representative, and the Escrow Agent shall have received, a certificate signed by any Breach or other claim under officer of the Merger Agreement for which the Buyer or Buyer Indemnified Persons are entitled to reimbursement under the Merger Agreement, (and, Company substantially in the case of Damages subject form attached hereto as Exhibit B (the "OFFICER'S CERTIFICATE") certifying that the Company has made the Tender Offer (as that term is defined in the Purchase Agreement) to the $100,000 deduction pursuant Minority Stockholders within one-hundred eighty (180) days after the Closing (as that term is defined in the Purchase Agreement). Such date shall be referred to Section 9.5 herein as the "TENDER OFFER DEADLINE." In the event that the Escrow Agent receives such an Officer's Certificate, the Escrow Agent shall under no circumstances have any duty to verify or confirm that the Company delivered such Officer's Certificate to any other party or that a Tender Offer has been made, and the Escrow Agent may conclusively presume that the Company delivered such Officer's Certificate to Davel and the Selling Lenders' Representative on the same date that such Officer's Certificate was delivered to the Escrow Agent. (II) In the event the Escrow Agent does not receive an Officer's Certificate as described in the preceding paragraph (i) within one hundred eighty-five (185) days after the date hereof (or if such date is not a business day, the immediately following business day), the Escrow Agent is hereby authorized and directed to distribute the entire amount of the Merger Agreement, such Damages exceed, Escrow Fund to the Minority Stockholders in the aggregatesame proportion as their respective holdings of the Public Shares as of the date of the Tender Offer Deadline. The Escrow Agent shall give written notice to the Company, $100,000Davel and the Selling Lenders' Representative promptly if the Escrow Agent shall not have received the Officer's Certificate by the date described in paragraph (i) of this Section ("NOTICE OF INTENT TO DISTRIBUTE TO MINORITY STOCKHOLDERS"). Any distribution of the Escrow Fund to the Minority Stockholders shall then be made as further described in Section 3(d) below. (III) In the event the Company delivers the Officer's Certificate as described in paragraph (i) of this Section and the Escrow Agent receives no objections to such Officer's Certificate in the form required by Section 3(e) hereof from Davel, Buyer shall be entitled the Selling Shareholders' Representative or any Minority Stockholder within ten (10) days after receipt of the Officer's Certificate by the Escrow Agent, Davel and the Selling Lenders, then the Escrow Agent is hereby authorized and directed to a disbursement distribute the entire amount of funds the Escrow Fund to the Selling Lenders in accordance with the percentage set forth for such Selling Lender on Exhibit A. Amounts distributed from the Escrow Fund for such Damages in accordance with to the provisions of the Merger Agreement and this Section 3. (b) From time to time on or before the two-year anniversary of the Closing Date (the “Escrow Termination Date”), Buyer may give written notice to Seller Representative and Escrow Agent (an “Indemnity Notice”) specifying (i) in reasonable detail, the nature and dollar amount of any claim (an “Indemnity Claim”) it has with respect to any Breach, and (ii) the amount of Damages incurred in connection with such Indemnity Claim. Buyer may make more than one claim with respect to any underlying state of facts. If Seller Representative gives written notice to Buyer and Escrow Agent disputing any Indemnity Claim (an “Indemnity Counter Notice”) within 15 days following receipt by Seller Representative of the applicable Indemnity Notice, such Indemnity Claim Selling Lenders shall be resolved by Buyer and Seller Representative as provided in Section 3(d) of this Escrow Agreement. Until such resolution, the amount Buyer alleges as Damages shall not be paid by wire transfer according to the instructions set forth on Exhibit A for each Selling Lender (or according to such other wire instructions as a Selling Lender may subsequently provide in writing to the Escrow Agent to either Buyer or Sellers. (c) If no Indemnity Counter Notice is received by Escrow Agent within such 15-day period, Escrow Agent shall pay the dollar amount of the Damages set forth in the Buyer’s Indemnity Notice to Buyer from (and only to the extent of) the Escrow Fund, (provided that no amount shall be due to Buyer for Damages for Claims subject to the $100,000 threshold under Section 9.5 of the Merger Agreement until total Damages for all such Claims exceed $100,000, and then only to the extent that such total Damages exceed $100,000). Escrow Agent shall not be required to inquire into or consider whether an Indemnity Claim complies with the requirements of the Merger Agreement, and shall be entitled to conclusively rely on an Indemnity Claim in making a disbursement under this subparagraph (cAgent). (d) If an Indemnity Counter Notice is given with respect to an Indemnity Claim, Escrow Agent shall make payment with respect thereto only in accordance with (i) joint written instructions of Buyer and Seller Representative or (ii) a final non-appealable order of a court of competent jurisdiction. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall be entitled to act on such court order and legal opinion.

Disbursement of Escrow Funds. 1.3.1 Subject to the limitations set forth in Article 9 of the Asset Purchase Agreement, if Buyer believes that it has a claim for indemnification pursuant to Section 9.1 of the Asset Purchase Agreement (a) If a “Buyer Claim”), the amount of which is then known, the Buyer shall, as soon as reasonably practicable after it becomes aware of such Buyer Claim, notify the Seller of such Buyer Claim by means of a written notice describing the Buyer Claim in reasonable detail and setting forth the Buyer’s good faith calculation of the Indemnifiable Losses incurred by the Buyer with respect thereto (a “Buyer Claim Notice”). If, by the thirtieth (30th) day following receipt of a Buyer Claim Notice by the Seller and others identified in the Notice section of the Asset Purchase Agreement (the “Indemnification Dispute Period”), (x) the Buyer has not received from the Seller notice in writing that the Seller objects to the Buyer Claim Notice (or the amount of Indemnifiable Losses asserted in such Buyer Indemnified PersonsClaim Notice) incurs Damages in connection with any Breach or other claim under (an “Indemnification Dispute Notice”), and (y) if such Buyer Claim shall have been made prior to the Merger Agreement for which Escrow Termination Date (as hereinafter defined), the Buyer and the Seller shall deliver a joint written instruction to the Escrow Agent (the “Escrow Disbursement Instruction”) instructing the Escrow Agent to pay to the Buyer or reserve from the Escrow Funds the amount of Indemnifiable Losses specified in the Buyer Indemnified Persons Claim Notice subject to the limitations contained in Article 9 of the Asset Purchase Agreement. Within one (1) Business Day following the Escrow Agent’s receipt of an Escrow Disbursement Instruction, the Escrow Agent shall comply with the instructions and directives concerning the release or reservation of the Escrow Funds set forth therein. 1.3.2 If the Seller delivers an Indemnification Dispute Notice to the Buyer within the Indemnification Dispute Period, the Buyer and the Seller shall promptly meet and use their reasonable efforts to settle the dispute as to whether and to what extent the Buyer Indemnitees are entitled to reimbursement under on account of such Buyer Claim Notice. If the Merger AgreementBuyer and the Seller are able to reach agreement within thirty (30) days after the Buyer receives such Indemnification Dispute Notice, (and, in the case of Damages subject and if such Buyer Claim Notice shall have been made prior to the $100,000 deduction pursuant Escrow Termination Date, the Buyer and the Seller shall deliver an Escrow Disbursement Instruction to Section 9.5 of the Merger Agreement, Escrow Agent setting forth such Damages exceed, in agreement and instructing the aggregate, $100,000), Escrow Agent to pay the Buyer shall be entitled to a disbursement of funds or reserve from the Escrow Fund for such Damages an amount in accordance with such agreement. Within one (1) Business Day following the provisions Escrow Agent’s receipt of the Merger Agreement and this Section 3. (b) From time to time on or before the two-year anniversary of the Closing Date (the “an Escrow Termination Date”)Disbursement Instruction, Buyer may give written notice to Seller Representative and Escrow Agent (an “Indemnity Notice”) specifying (i) in reasonable detail, the nature and dollar amount of any claim (an “Indemnity Claim”) it has with respect to any Breach, and (ii) the amount of Damages incurred in connection with such Indemnity Claim. Buyer may make more than one claim with respect to any underlying state of facts. If Seller Representative gives written notice to Buyer and Escrow Agent disputing any Indemnity Claim (an “Indemnity Counter Notice”) within 15 days following receipt by Seller Representative of the applicable Indemnity Notice, such Indemnity Claim shall be resolved by Buyer and Seller Representative as provided in Section 3(d) of this Escrow Agreement. Until such resolution, the amount Buyer alleges as Damages shall not be paid by the Escrow Agent shall comply with the instructions and directives concerning the release or reservation of the Escrow Funds set forth therein. If the Buyer and the Seller are unable to reach agreement within thirty (30) days after the Buyer receives such Indemnification Dispute Notice, then either the Buyer or Sellersthe Seller may resort to other legal remedies. (c) If no Indemnity Counter Notice is received by Escrow Agent within such 15-day period, Escrow Agent shall pay the dollar amount of the Damages set forth in the Buyer’s Indemnity Notice to Buyer from (and only to the extent of) the Escrow Fund, (provided that no amount shall be due to Buyer for Damages for Claims subject to the $100,000 threshold under Section 9.5 of the Merger Agreement until total Damages for all such Claims exceed $100,000, and then only to the extent that such total Damages exceed $100,000). Escrow Agent shall not be required to inquire into or consider whether an Indemnity Claim complies with the requirements of the Merger Agreement, and shall be entitled to conclusively rely on an Indemnity Claim in making a disbursement under this subparagraph (c). (d) If an Indemnity Counter Notice is given with respect to an Indemnity Claim, Escrow Agent shall make payment with respect thereto only in accordance with (i) joint written instructions of Buyer and Seller Representative or (ii) a final non-appealable order of a court of competent jurisdiction. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall be entitled to act on such court order and legal opinion.

Disbursement of Escrow Funds. Escrow Agent shall hold, disburse and pay over the Escrow Funds less the Expenses plus the Interest (each as hereinafter defined) (“Total Escrow”) to Purchaser, a Purchaser Indemnitee or Seller as follows: (a) If Purchaser claims that it is entitled to an adjustment to the Buyer Purchase Price pursuant to Section 2.9 of the Asset Purchase Agreement (an “Adjustment”) or Buyer Indemnified Persons) incurs Damages in connection with a Purchaser Indemnitee has or claims to have incurred or suffered any Breach or other claim under the Merger Agreement Losses for which the Buyer it is or Buyer Indemnified Persons are may be entitled to reimbursement indemnification under Section 7.1(a) of the Merger Asset Purchase Agreement, (Purchaser or such Purchaser Indemnitee, as the case may be, may, promptly after the incurrence of such Adjustment or Loss, but in no event later than January 10, 2011, deliver to Seller and, if Seller is not the Indemnifying Party, the Indemnifying Party and Escrow Agent a Certificate. Each Certificate shall state, as appropriate, that Purchaser is entitled to an Adjustment or that the Purchaser Indemnitee has paid or anticipates it will incur Losses for which such Purchaser Indemnitee is entitled to indemnification pursuant to the Asset Purchase Agreement, and specify in reasonable detail (and have annexed thereto all supporting documentation) each individual item of Adjustment or Loss included in the amount so stated and in the case of Damages subject to a Loss, the $100,000 deduction pursuant to Section 9.5 date such item was paid or accrued, the basis for any anticipated liability and the nature of the Merger Agreementmisrepresentation, breach of warranty, breach of covenant or claim to which each such Damages exceed, in item is related and the aggregate, $100,000), Buyer shall computation of the amount to which such Purchaser Indemnitee claims to be entitled to a disbursement of funds from the Escrow Fund for such Damages in accordance with the provisions of the Merger Agreement and this Section 3thereunder. (b) From time In the event that Seller shall object to time on the Adjustment or before the twoamount thereof or the Indemnifying Party shall object to the indemnification of Purchaser Indemnitee in respect of any claim or claims specified in any Certificate, Seller or the Indemnifying Party shall, within forty-year anniversary five (45) days after receipt by it of the Closing Date (the “Escrow Termination Date”)such Certificate, Buyer may give written notice deliver to Seller Representative Purchaser or Purchaser Indemnitee and Escrow Agent (an “Indemnity Notice”) a notice of objection to such effect, specifying (i) in reasonable detaildetail the basis for such objection, and Seller or the nature Indemnifying Party, on the one hand, and dollar amount Purchaser or the Purchaser Indemnitee, on the other hand, shall, within the sixty (60) day period beginning on the date of any claim (an “Indemnity Claim”) it has receipt by Seller or the Indemnified Party of such objection, attempt to agree upon the rights of the respective parties with respect to each of such claims to which Seller or the Indemnifying Party shall have so objected. If Seller or the Indemnifying Party or Purchaser or the Purchaser Indemnitee shall reach agreement on their respective rights with respect to any Breachof such claims, they shall promptly prepare and (ii) the amount sign a memorandum setting forth such agreement and shall deliver a copy of Damages incurred in connection with such Indemnity Claimmemorandum to Escrow Agent. Buyer may make more than one claim with respect Should such parties be unable to agree as to any underlying state particular item or items or amount or amounts within such time period, then the they shall submit such dispute to a court of facts. If Seller Representative gives written notice to Buyer and Escrow Agent disputing any Indemnity Claim (an “Indemnity Counter Notice”) within 15 days following receipt by Seller Representative competent jurisdiction as set forth in Section 8.9 of the applicable Indemnity Notice, such Indemnity Claim shall be resolved by Buyer and Seller Representative as provided in Section 3(d) of this Escrow Asset Purchase Agreement. Until such resolution, the amount Buyer alleges as Damages shall not be paid by the Escrow Agent to either Buyer or Sellers. (c) If no Indemnity Counter Notice is received Claims for an Adjustment or Losses specified in any Certificate to which Seller or the Indemnifying Party shall not object in writing within forty-five (45) days of receipt of such Certificate, claims for an Adjustment or Losses covered by a memorandum of agreement of the nature described in Section 3(b) hereunder, and claims for an Adjustment or Losses the validity and amount of which have been the subject of judicial determination as described in Section 3(b) hereunder or that have been settled with the consent of the Indemnifying Party as described in Section 7.3 of the Asset Purchase Agreement, are hereinafter referred to, collectively, as “Agreed Claims.” Within ten (10) Business Days after receipt by Escrow Agent within such 15-day periodof a notice from the Escrow Parties of the determination of the amount of any Agreed Claim pursuant to which the Purchaser or a Purchaser Indemnitee is entitled to payment, Escrow Agent shall pay the dollar amount of the Damages set forth in the Buyer’s Indemnity Notice to Buyer from (and only to the extent of) the Escrow Fund, (provided that no Purchaser or Purchaser Indemnitee an amount shall be due to Buyer for Damages for Claims subject equal to the $100,000 threshold under Section 9.5 of the Merger Agreement until total Damages for all such Claims exceed $100,000, and then only to the extent that such total Damages exceed $100,000). Escrow Agent shall not be required to inquire into or consider whether an Indemnity Claim complies with the requirements of the Merger Agreement, and shall be entitled to conclusively rely on an Indemnity Claim in making a disbursement under this subparagraph (c)Agreed Claim. (d) If an Indemnity Counter Notice is given with respect to an Indemnity ClaimOn January 11, 2011, Escrow Agent shall make payment distribute to Seller the Total Escrow less the sum of (i) any payments of Agreed Claims for which it has received notice prior thereto and (ii) an amount equal to all claims for Adjustments and Losses with respect to which it has received notice on or before January 10, 2011 and have not been resolved (“Open Claims”). Upon the resolution of an Open Claim and receipt by Escrow Agent of notice thereof from the Escrow Parties, Escrow Agent shall distribute to the Escrow Parties entitled thereto only the amount of such Open Claim in accordance with (i) joint written instructions of Buyer and Seller Representative or (ii) a final non-appealable order of a court of competent jurisdiction. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall be entitled to act on such court order and legal opinionresolution thereof.