Common use of Disbursement of the Escrow Funds Clause in Contracts

Disbursement of the Escrow Funds. (a) Unless and to the extent that subparagraphs (b) or (c) below shall apply, the Escrow Agent shall hold the Escrow Funds until the later of (i) the 90th day after the Closing or (ii) 10 days after finalization of the Closing Balance Sheet (the "Termination Date"), and shall thereafter deliver all Escrow Funds held by the Escrow Agent on such Termination Date to the Seller. (b) In the event that, after finalization of the Closing Balance Sheet in accordance with Section 2.4 of the Purchase Agreement, the Closing Date Value is less than $2.5 million, Purchaser shall then be entitled to receive from the Escrow Agent the dollar amount of Escrow Funds as is equal to the dollar amount of the shortfall between the Closing Date Value and $2.5 million. (c) If, at any time prior to the Termination Date, Purchaser has given the Escrow Agent a notice (the "Purchaser Notice") that it is entitled to receive Escrow Funds as a result of the indemnification obligations of the Seller arising under the Purchase Agreement, the Escrow Agent shall give a copy of the Purchaser Notice to the Seller. If the Escrow Agent does not receive a written objection from the Seller to the Purchaser Notice prior to the 10th day following the date the Purchaser Notice is deemed delivered to the Seller, the Escrow Agent shall disburse to the Purchaser the amount of Escrow Funds described in the Purchaser Notice. If the Escrow Agent timely receives a copy of a written objection from the Seller to the Purchaser Notice, then the provisions of Section 4 hereof shall apply. (d) On the date which is 60 days after the Closing Date, the Escrow Agent shall deliver to Purchaser an amount equal to the sum of $10,000. Such amount shall be taken from the Escrow Funds unless the Escrow Agent has received notice by such date from the Seller and the Purchaser that the Tax Liens (as defined in that certain Amendment No. 1 to the Purchase Agreement), has been released. Payment of Escrow Funds to Purchaser under this section 4(d) does not foreclose or otherwise impair or affect Purchaser's right to seek indemnification or other recourse available to Purchaser under the Purchase Agreement or otherwise with respect to any damage incurred by Purchaser, arising from the Tax Liens.

Disbursement of the Escrow Funds. (a) Unless and to the extent that subparagraphs (b) or (c) below shall apply, the The Escrow Agent shall continue to hold the Escrow Funds delivered for deposit hereunder by the Investors until the later earlier of: (1) receipt of a joint written notice from the Company and Xxxx, evidencing termination under Section 6.5(a) of the Purchase Agreement, (2) receipt of a written notice from the Company or Xxxx evidencing termination under Section 6.5(b) of the Purchase Agreement (each of (i1) the 90th day after the Closing and (2), a “Termination Election”) or (ii3) 10 days after finalization receipt of a joint written notice from the Closing Balance Sheet (Company and Xxxx that the "Termination Date"), conditions to closing under the Purchase Agreement have been satisfied and shall thereafter deliver all to disburse the Escrow Funds held by the Escrow Agent on such Termination Date to the Sellerin accordance with Section 5(b) below. (b) In If the event that, after finalization Escrow Agent receives a Termination Election prior to its receipt of the Closing Balance Sheet notice contemplated under Section 5(a)(3), then the Escrow Agent shall return the Escrow Funds delivered by the Investors as directed by the Investors. If the Escrow Agent receives the notice contemplated under Section 5(a)(3) prior to a Termination Election, then the Escrow Agent shall disburse the Escrow Funds in accordance with Section 2.4 of the Purchase Agreement, the Closing Date Value is less than $2.5 million, Purchaser shall then be entitled to receive from the Escrow Agent the dollar amount of Escrow Funds funds flow memorandum attached hereto as is equal to the dollar amount of the shortfall between the Closing Date Value and $2.5 million.Exhibit C. (c) IfFollowing the Closing, at any time prior if any, the Holdback Escrow Amount (as hereinafter defined) (which shall form a part of the Escrow Funds) shall continue to be held in the Termination Date, Purchaser has given escrow account following disbursement of the balance of the Escrow Funds in accordance with Exhibit C to this Escrow Agreement. An amount of $2,000,000.00 shall be released by the Escrow Agent a to the Company upon the Escrow Agent’s receipt of joint written notice from the Company and Xxxx Capital Partners, LLC that the Company has complied with both Section 4.11 and Section 4.15 of the Purchase Agreement (the "Purchaser Notice") that it is entitled to receive “Holdback Escrow Funds as a result of the indemnification obligations of the Seller arising under the Purchase Agreement, the Escrow Agent shall give a copy of the Purchaser Notice to the SellerAmount”). If for any reason, or for no reason whatsoever, the Escrow Agent does not receive a the joint written objection from the Seller notice relating to the Purchaser Notice Holdback Escrow Amount prior to the 10th day following six month anniversary of the date Closing Date, then such Holdback Escrow Amount shall remain in the Purchaser Notice is deemed delivered to the Seller, escrow account until such time as the Escrow Agent shall disburse to the Purchaser the amount of Escrow Funds described in the Purchaser Notice. If the Escrow Agent timely receives a copy of a joint written objection notice from the Seller to Company and Xxxx Capital Partners, LLC that the Purchaser Notice, then Company has complied with both Section 4.11 and Section 4.15 of the provisions of Section 4 hereof shall applyPurchase Agreement. (d) On This Escrow Agreement shall terminate and be of no further force or effect on the date which is 60 days after disbursement of all Escrow Funds. (e) Each of the Closing DateInvestors represents, the Escrow Agent shall deliver as to Purchaser an amount equal to the sum of $10,000. Such amount shall be taken from the Escrow Funds unless the Escrow Agent has received notice by such date from the Seller and the Purchaser that the Tax Liens (itself or himself only, that, except as defined otherwise provided in that certain Amendment No. 1 to the Purchase AgreementSection 5(b), has been released. Payment of Escrow Funds to Purchaser (i) any amounts placed into escrow under this section 4(d) does not foreclose Escrow Agreement or otherwise impair or affect Purchaser's right to seek indemnification or other recourse available to Purchaser under in accordance with the Purchase Agreement are not refundable to such Investor, (ii) such Investor does not have any control or otherwise with respect to discretion over the release of the funds in the escrow account established by this Escrow Agreement, and (iii) such Investor has not been issued, or will not be entitled to, a refund or repayment of any damage incurred by Purchaser, arising from the Tax Liensamounts held in escrow under this Escrow Agreement.

Disbursement of the Escrow Funds. (ai) Unless On the Closing Date of the APA, Escrow Agent shall disburse the Deposit Escrow Funds to Seller to be applied towards the Purchase Price as Seller shall direct in writing. If the Closing Date does not occur and the APA is terminated pursuant to the extent that subparagraphs (band in accordance with Section 4.4(a), Section 4.4(b), Section 4.4(c), Section 4.4(d), Section 4.4(e), Section 4.4(f), Section 4.4(g), Section 4.4(i) or Section 4.4(k) thereof, then Purchaser shall direct Escrow Agent in writing to disburse the Deposit Escrow Funds to Purchaser. If the Closing Date does not occur and the APA is terminated by Seller pursuant to and in accordance with Section 4.4(h) or Section 4.4(j) of the APA, then Seller shall direct Escrow Agent in writing to disburse the Deposit Escrow Funds to Seller. Unless the APA has been validly terminated in accordance with its terms (c) below in which case the foregoing instructions shall applycontrol), in the event that Purchaser is not the Prevailing Bidder or the Back-up Bidder following the Auction, the Escrow Agent shall hold return the Deposit Escrow Funds until the later of to Purchaser within fifteen (i15) the 90th day business days after the Closing or (ii) 10 days after finalization entry of the Closing Balance Sheet (the "Termination Date"), and shall thereafter deliver all Escrow Funds held Sale Order by the Escrow Agent on such Termination Date Bankruptcy Court with respect to the Seller. (b) Alternative Transaction involving the Prevailing Bidder, as Purchaser shall direct in writing. In the event that, after finalization of that Purchaser is the Closing Balance Sheet in accordance with Section 2.4 of Back-up Bidder following the Purchase Agreement, the Closing Date Value is less than $2.5 million, Purchaser shall then be entitled to receive from the Escrow Agent the dollar amount of Escrow Funds as is equal to the dollar amount of the shortfall between the Closing Date Value and $2.5 million. (c) If, at any time prior to the Termination Date, Purchaser has given the Escrow Agent a notice (the "Purchaser Notice") that it is entitled to receive Escrow Funds as a result of the indemnification obligations of the Seller arising under the Purchase AgreementAuction, the Escrow Agent shall give a copy return the Deposit Escrow Funds to Purchaser within two (2) business days of the Outside Back-Up Date, as Purchaser shall direct in writing. (ii) Within three (3) business days after December 1, 2016 (the “Holdback Disbursement Date”), Escrow Agent shall disburse the Holdback Escrow Funds that have not previously been distributed, to Seller, as Seller shall direct in writing, less the aggregate amount of any Disputed Amounts which have not previously been resolved and disbursed (“Remaining Funds”); provided that, if a Claim Notice is delivered by Purchaser less than three calendar days prior to the SellerHoldback Disbursement Date, Escrow Agent shall retain the amounts designated in such Claim Notice until the earlier of the expiration of the three-day period referred to in (c) above or notice from Seller that Seller has no objection to the amount set forth in the Claim Notice. If The Remaining Funds shall be held by Escrow Agent in the Escrow Account until such time as (i) Seller and Purchaser execute a joint written instruction to the Escrow Agent does not instructing Escrow Agent to disburse all or any portion of such Remaining Funds, (ii) Escrow Agent shall receive a written objection from final, non-appealable order of a court of competent jurisdiction (together with a certificate of the Seller presenting party to the Purchaser Notice prior to the 10th day following the date the Purchaser Notice effect that such judgment is deemed delivered to the Sellerfinal and from a court of competent jurisdiction, upon which certificate the Escrow Agent shall disburse be entitled to conclusively rely without further investigation) authorizing the Purchaser the amount release of Escrow Funds described in the Purchaser Notice. If the all or any portion of such Remaining Funds, or (iii) Escrow Agent timely receives a copy commences an action in interpleader in any court of a written objection from competent jurisdiction and deposits the Seller to the Purchaser Notice, then the provisions of Section 4 hereof shall apply. (d) On the date which is 60 days after the Closing Date, the Escrow Agent shall deliver Remaining Funds with such court with jurisdiction. Any amounts distributed to Purchaser an amount equal to the sum of $10,000. Such amount shall be taken from the Escrow Funds unless the Escrow Agent has received notice by such date from the Seller and the “Purchaser that the Tax Liens (as defined in that certain Amendment No. 1 to the Purchase Agreement), has been released. Payment of Escrow Funds to Purchaser under this section 4(d) does not foreclose or otherwise impair or affect Purchaser's right to seek indemnification or other recourse available to Purchaser under the Purchase Agreement or otherwise with respect to any damage incurred by Purchaser, arising from the Tax LiensAmounts.”

Disbursement of the Escrow Funds. The Escrow Agent shall release and disburse the Escrow Funds in accordance with the provisions of this Section 4 during the term of this Escrow Agreement. (a) Unless and Subject to the extent that subparagraphs terms of the Asset Purchase Agreement and terms of this Escrow Agreement, the distribution of the Working Capital Escrow Fund pursuant to Section 1.10 of the Asset Purchase Agreement shall be made by the joint written instructions of the Acquiror and the Company, substantially in the form Annex A hereto (a “Joint Certificate”). The Acquiror and the Company shall submit a Joint Certificate to the Escrow Agent within five (5) Business Days after the Final Determination Date. The Escrow Agent shall disburse funds from the Working Capital Escrow Fund in accordance with the instructions in the Joint Certificate within five (5) Business Days after receipt of the Joint Certificate. (b) or (c) below shall applySubject to the terms of the Asset Purchase Agreement and the terms of this Escrow Agreement, if the Acquiror has any claims for Acquiror Indemnifiable Losses, the Escrow Agent shall hold not disburse or release any funds from the Escrow Funds until the later Account in respect of (i) the 90th day after the Closing or (ii) 10 days after finalization of the Closing Balance Sheet (the "Termination Date"), and shall thereafter deliver all Escrow Funds held by the Escrow Agent on such Termination Date to the Seller. (b) In the event that, after finalization of the Closing Balance Sheet claims except in accordance with Section 2.4 either: (x) the instructions set forth in a Joint Certificate or (y) the instructions set forth in a non-appealable, final judgment of a court of competent jurisdiction (a “Judgment”) accompanied by a certificate substantially in the form of Annex B hereto (a “Judgment Certificate”) executed by the Acquiror or the Company and stating that attached thereto is such a Judgment. If the Acquiror has no claims for Acquiror Idemnifiable Losses as of the Purchase Agreementtwelve month anniversary of the Closing, the Closing Date Value is less than $2.5 million, Purchaser shall then be entitled to receive from remaining funds in the Escrow Agent the dollar amount of Escrow Funds as is equal Account will be released to the dollar amount of the shortfall between the Closing Date Value and $2.5 millionCompany. (c) IfAt any time, at any time prior to the Termination Date, Purchaser has given Company and the Acquiror may instruct the Escrow Agent a notice (the "Purchaser Notice") that it is entitled to receive release Escrow Funds as from the Escrow Account in accordance with instructions set forth in a result of the indemnification obligations of the Seller arising under the Purchase AgreementJoint Certificate. In such event, the Escrow Agent shall give a copy within five (5) Business Days of receipt of the Purchaser Notice Joint Certificate disburse and release by wire transfer of immediately available funds to the Seller. If account(s) identified in the Escrow Agent does not receive a written objection from the Seller to the Purchaser Notice prior to the 10th day following the date the Purchaser Notice is deemed delivered to the Seller, the Escrow Agent shall disburse to the Purchaser Joint Certificate the amount of Escrow Funds described set forth in the Purchaser Notice. If the Escrow Agent timely receives a copy of a written objection from the Seller to the Purchaser Notice, then the provisions of Section 4 hereof shall applyJoint Certificate. (d) On the date which is 60 days after the Closing Date, the Escrow Agent shall deliver to Purchaser an amount equal to the sum of $10,000. Such amount shall be taken from the Escrow Funds unless the Escrow Agent has received notice by such date from the Seller and the Purchaser that the Tax Liens (as defined in that certain Amendment No. 1 to the Purchase Agreement), has been released. Payment of Escrow Funds to Purchaser under this section 4(d) does not foreclose or otherwise impair or affect Purchaser's right to seek indemnification or other recourse available to Purchaser under the Purchase Agreement or otherwise with respect to any damage incurred by Purchaser, arising from the Tax Liens.