Common use of Disbursements from Escrow Account Clause in Contracts

Disbursements from Escrow Account. (a) At any time on or before June 30, 2005 (the “Escrow Termination Date”), the Escrow Agent shall make disbursements from the Escrow Account upon receipt of joint written instructions executed by the Investor Representative and an Appropriate Officer of the Company instructing the Escrow Agent how to disburse the Escrowed Property or any part thereof (including without limitation income or earnings thereon), and specifically setting forth the exact amount of cash to be disbursed and the identity of the person or entity to which a disbursement is to be made, then the Escrow Agent shall forthwith transfer from the Escrow Account and disburse the Escrowed Property or such part thereof in accordance with such instructions. (b) Without affecting any of the rights and obligations of Escrow Agent or limiting the provisions of section 3(a) hereof, and for the sole purpose of setting forth the rights and obligations of the Investors, the Investor Representative, and the Company with regards to the release of the Escrowed Property, the Investors, the Investor Representative, and the Company agree that: (i) In the event the conditions to the First Closing are fulfilled, by satisfaction or waiver, by both the Company and the Investors prior to the Escrow Termination Date, pursuant to Section 3(a) hereof, the Investor Representative shall execute joint written instructions with an Appropriate Officer of the Company to direct Escrow Agent to promptly disburse all Funds attributable to the First Closing to the Company; (ii) In the event the conditions to the Second Closing are satisfied prior to the Escrow Termination Date, the Investor Representative shall execute joint written instructions with an Appropriate Officer of the Company to direct Escrow Agent to promptly disburse the Funds to the Company, and any remaining Escrowed Property shall be returned to the Investors; (iii) In the event the conditions to the Second Closing are not satisfied prior to the Escrow Termination Date, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct Escrow Agent to promptly disburse the Escrowed Property to the Investors in accordance with their pro rata interest therein; and (iv) Notwithstanding the foregoing, in the event the Company has not received stockholder approval of the transactions contemplated by the Stock Purchase Agreement within 75 days of the date hereof, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct Escrow Agent to promptly disburse that portion of the Escrowed Property to an Investor who elects to have its pro rata portion of the Escrowed Property released from escrow. (c) The Escrow Agent shall disburse the Escrowed Property only in accordance with this Section 3 or Section 5. (d) For purposes of this Escrow Agreement, the term “Appropriate Officers” means the President, Chief Executive Officer, or Chief Financial Officer of the Company as set forth on the Company’s most recently filed report with the Securities and Exchange Commission. (e) The transfer of any of the Escrowed Property by the Escrow Agent to any party pursuant to this Section 3 shall be made by such means as shall be set forth in the joint instructions from the Company and the Investors delivered and satisfactory to the Escrow Agent.

Disbursements from Escrow Account. (a) At If Purchaser and the Seller agree in writing that any time on or before June 30, 2005 (the “Escrow Termination Date”), the Escrow Agent Purchaser Indemnified Party shall make disbursements be entitled to recover any amounts from the Escrow Account upon receipt of pursuant to this Agreement and funds then remain on deposit in the Escrow Account, Purchaser and the Seller Representative shall promptly provide a joint written instructions executed by the Investor Representative and an Appropriate Officer of the Company instructing instruction to the Escrow Agent how to disburse the Escrowed Property deliver such amounts to Purchaser (or any part thereof Person designated by Purchaser). If, following the eighteen (including without limitation income or earnings thereon)18) month anniversary of the Closing Date, there are any funds remaining in the Escrow Account, then Seller shall be entitled to receive such funds, and specifically setting forth the exact amount of cash to be disbursed Purchaser and the identity of the person or entity Seller Representative shall provide a joint written instruction to which a disbursement is to be made, then the Escrow Agent shall forthwith to deliver, by wire transfer from of immediately available funds to an account designated in writing by the Escrow Account and disburse Seller Representative; provided, however, that if prior to the Escrowed Property or such part thereof in accordance with such instructions. eighteen (b18) Without affecting any month anniversary of the rights and obligations Closing Date, the Seller Representative has received one or more notices which set forth indemnification claims under ARTICLE XI of Escrow Agent or limiting this Agreement for Claims that are unresolved on the provisions of section 3(aeighteen (18) hereof, and for the sole purpose of setting forth the rights and obligations month anniversary of the InvestorsClosing Date, the Investor Representative, and the Company with regards then an amount equal to the release lesser of the Escrowed Property, the Investors, the Investor Representative, and the Company agree that: (i) In the event the conditions to the First Closing are fulfilled, by satisfaction or waiver, by both the Company and the Investors prior to the Escrow Termination Date, pursuant to Section 3(a) hereof, the Investor Representative shall execute joint written instructions with an Appropriate Officer amount of the Company aggregate Claims set forth in, and reasonably expected to direct Escrow Agent to promptly disburse all Funds attributable to the First Closing to the Company; be incurred in connection with, each such unresolved indemnification claim, and (ii) In the event the conditions to the Second Closing are satisfied prior to amount remaining in the Escrow Termination DateAccount, the Investor Representative shall execute joint written instructions with an Appropriate Officer of the Company continue to direct Escrow Agent to promptly disburse the Funds to the Company, and any remaining Escrowed Property shall be returned to the Investors; (iii) In the event the conditions to the Second Closing are not satisfied prior to the Escrow Termination Date, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct Escrow Agent to promptly disburse the Escrowed Property to the Investors in accordance with their pro rata interest therein; and (iv) Notwithstanding the foregoing, in the event the Company has not received stockholder approval of the transactions contemplated by the Stock Purchase Agreement within 75 days of the date hereof, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct Escrow Agent to promptly disburse that portion of the Escrowed Property to an Investor who elects to have its pro rata portion of the Escrowed Property released from escrow. (c) The Escrow Agent shall disburse the Escrowed Property only in accordance with this Section 3 or Section 5. (d) For purposes of this Escrow Agreement, the term “Appropriate Officers” means the President, Chief Executive Officer, or Chief Financial Officer of the Company as set forth on the Company’s most recently filed report with the Securities and Exchange Commission. (e) The transfer of any of the Escrowed Property held by the Escrow Agent in the Escrow Account to pay such claims and any party other amounts associated therewith that are payable pursuant to ARTICLE XI of this Section 3 Agreement; and provided further, from time to time promptly after final resolution of each such indemnification claim, the Seller Representative and Purchaser will authorize the Escrow Agent to disburse all amounts remaining in the Escrow Account in the same manner as described above, subject to the condition that if at such time there remains unresolved any indemnification claim, an amount equal to the lesser of (i) the amount of the aggregate Claims set forth in, and reasonably expected to be incurred in connection with, each such indemnification claim, and (ii) the amount remaining in the Escrow Account shall be made by such means as shall be set forth maintained in the joint instructions from the Company and the Investors delivered and satisfactory to the Escrow AgentAccount.

Disbursements from Escrow Account. (a) At any Seller shall deliver to Escrow Agent and Buyer a written request (a “Release Notice”) for disbursement of all or a portion of the Deposit from time on or before June 30to time, 2005 but not more frequently than twice per month (which limitation shall not include a request for final payment of the Deposit hereunder), together with the following (the “Escrow Termination DateWork Evidence”); items set forth in Section 2(a)(4) and Section 2(a)(5) are referred to herein as the “Final Repair Work Deliveries”): (1) copies of the invoices to be paid and specifying the dollar amount of such invoice to be paid together with payment instructions; (2) conditional lien waivers from each contractor, evidencing payment in full of all amounts previously paid, except for, to the extent applicable, the final payment of the Repair Work then to be paid; (3) written confirmation from the Detention Pond Consultant certifying to Buyer and Seller that after the release of funds pursuant to the applicable Release Notice, the amount of the Deposit then remaining on account with Escrow Agent is sufficient to complete the then remaining Repair Work, excluding any Excluded Overages, or specifying the amount of any deficiency which shall make disbursements be funded by Seller to Escrow Agent prior to any release of the Deposit pursuant to the applicable Release Notice; (4) in connection with the final payment due under any given contract to a contractor, a contractor’s final affidavit and lien waiver evidencing that such payment will constitute payment in full of all remaining costs incurred with respect to the Repair Work under such contract and that it has paid or will pay its subcontractors the amounts owed to them out of such final disbursement; and (5) in connection with the final payment due with respect to the Repair Work, (i) written confirmation from Xxxx County confirming that the existing violation with respect to the Detention Pond Condition has been cured to Xxxx County’s satisfaction, and (ii) a one (1) year warranty with respect to the Repair Work issued to Buyer from the Escrow Account upon receipt of joint written instructions executed by the Investor Representative and an Appropriate Officer of the Company instructing the Escrow Agent how to disburse the Escrowed Property or any part thereof (including without limitation income or earnings thereon), and specifically setting forth the exact amount of cash to be disbursed and the identity of the person or entity to which a disbursement is to be made, then the Escrow Agent shall forthwith transfer from the Escrow Account and disburse the Escrowed Property or such part thereof in accordance with such instructionscontractor. (b) Without affecting any of the rights and obligations of Escrow Agent or limiting the provisions of section 3(a) hereofAlternatively, and for the sole purpose of setting forth the rights and obligations of the Investorsat Seller’s election, the Investor Representative, and the Company with regards Seller may request in writing to Buyer that Buyer approve the release of the Escrowed PropertyDeposit by Escrow Agent upon submission of evidence reasonably satisfactory to Buyer that the Repair Work has been completed and that all of the Work Evidence, including without limitation the InvestorsFinal Repair Work Deliveries, have been delivered to Buyer. Buyer shall have the Investor Representative, right to review and approve all of the Work Evidence for compliance with this Escrow Agreement and the Company agree that: (i) In the event the conditions to the First Closing are fulfilled, by satisfaction or waiver, by both the Company and the Investors prior to the Escrow Termination Date, pursuant to Section 3(a) hereof, the Investor Representative shall execute joint written instructions with an Appropriate Officer Agreement. Upon completion of the Company Repair Work and delivery of all of the Work Evidence, including without limitation the Final Repair Work Deliveries, as provided above (all of which must be reasonably satisfactory in form and substance to Buyer), Buyer will approve Seller’s request for the release of the Deposit and, in such event, Buyer will direct Escrow Agent to promptly disburse all Funds attributable to the First Closing to the Company; (ii) In the event the conditions to the Second Closing are satisfied prior to the Escrow Termination Date, the Investor Representative shall execute joint written instructions with an Appropriate Officer of the Company to direct Escrow Agent to promptly disburse the Funds Deposit to the Company, and any remaining Escrowed Property shall be returned to the Investors; (iii) In the event the conditions to the Second Closing are not satisfied prior to the Escrow Termination Date, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct Escrow Agent to promptly disburse the Escrowed Property to the Investors in accordance with their pro rata interest therein; and (iv) Notwithstanding the foregoing, in the event the Company has not received stockholder Seller upon Buyer’s approval of the transactions contemplated by the Stock Purchase Agreement within 75 days of the date hereof, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct Escrow Agent to promptly disburse that portion of the Escrowed Property to an Investor who elects to have its pro rata portion of the Escrowed Property released from escrowsuch items. (c) The Upon payment in full of all of the Repair Work and delivery to Buyer of all of the Final Repair Work Deliveries, the remainder of the Deposit shall be promptly released to Seller by the Escrow Agent upon written confirmation from Buyer and Seller, which confirmation shall disburse the Escrowed Property only in accordance with this Section 3 not be unreasonably withheld, conditioned or Section 5delayed. (d) For purposes of this Escrow AgreementIf Seller fails to complete the Repair Work within thirty (30) days after the date hereof (the “Scheduled Completion Date”), the term “Appropriate Officers” means the Presidentas such Scheduled Completion Date may be extended upon written notice from Seller, Chief Executive Officerin its sole discretion, to Buyer for up to sixty (60) days, or Chief Financial Officer as the same may be extended due to any unforeseen circumstances or force majeure, and Buyer elects to complete such Repair Work on behalf of Seller, Buyer shall be fully reimbursed for all costs and expenses actually incurred by Buyer in the completion of such Repair Work, but excluding any Excluded Overages, and Escrow Agent shall release such portion of the Company Deposit to Buyer as set forth on the Companyrequired to so fully reimburse Buyer upon Buyer’s most recently filed report with the Securities and Exchange Commission. (e) The transfer delivery to Escrow Agent of a Release Notice. If any of the Escrowed Property by Deposit is remaining after Buyer has been fully reimbursed as provided herein, such remainder of the Escrow Agent to any party pursuant to this Section 3 Deposit shall be made promptly released to Seller by such means as shall be set forth in the joint instructions from the Company and the Investors delivered and satisfactory to the Escrow Agent.

Disbursements from Escrow Account. (a) At any time on or before June 30In accordance with the requirements of Section 3, 2005 (prior to each Closing, the “Escrow Termination Date”), Placement Agent shall provide the Escrow Agent shall make disbursements from the Escrow Account upon receipt of joint written instructions with a statement, executed by each party, containing the Investor Representative and an Appropriate Officer of the Company instructing the Escrow Agent how to disburse the Escrowed Property or any part thereof (including without limitation income or earnings thereon), and specifically setting forth the exact amount of cash to be disbursed and the identity of the person or entity to which a disbursement is to be made, then the Escrow Agent shall forthwith transfer from the Escrow Account and disburse the Escrowed Property or such part thereof in accordance with such instructions. (b) Without affecting any of the rights and obligations of Escrow Agent or limiting the provisions of section 3(a) hereof, and for the sole purpose of setting forth the rights and obligations of the Investors, the Investor Representative, and the Company with regards to the release of the Escrowed Property, the Investors, the Investor Representative, and the Company agree thatfollowing information: (i) In a description of each subscription agreement it has accepted (which description shall include the event identity of the conditions to subscriber), the First Closing are fulfillednumber of Shares purchased thereby, by satisfaction or waiver, by both the Company and the Investors prior to amounts of the corresponding subscription funds held in the Escrow Termination Date, pursuant Account to Section 3(a) hereof, the Investor Representative shall execute joint written instructions with an Appropriate Officer of the Company to direct Escrow Agent to promptly disburse all Funds attributable to the First Closing be disbursed to the Company; (ii) In a description of each subscription agreement it has rejected (which description shall include the event identity of the conditions subscriber) and the amounts of the corresponding subscription funds held in the Escrow Account to be returned to the Second Closing are satisfied prior to prospective subscribers; and (iii) if a subscription agreement is accepted in part and rejected in part, a description of each such subscription agreement (which description shall include the Escrow Termination Dateidentity of the subscriber), the Investor Representative shall execute joint written instructions with an Appropriate Officer number of Shares for which subscription is accepted and the amount of the Company corresponding subscription funds to direct Escrow Agent to promptly disburse the Funds be disbursed to the Company, and any remaining Escrowed Property shall the number of Shares for which subscription is rejected and the amount of the corresponding subscription funds to be returned to the Investors; (iii) In the event the conditions to the Second Closing are not satisfied prior to the Escrow Termination Date, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct Escrow Agent to promptly disburse the Escrowed Property to the Investors in accordance with their pro rata interest therein; and (iv) Notwithstanding the foregoing, in the event the Company has not received stockholder approval of the transactions contemplated by the Stock Purchase Agreement within 75 days of the date hereof, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct Escrow Agent to promptly disburse that portion of the Escrowed Property to an Investor who elects to have its pro rata portion of the Escrowed Property released from escrowprospective subscriber. (cb) The Escrow Agent shall shall, on or about the 8th day of each month during the Escrow Period (or, should such date not be a business day, on the first business day thereafter), disburse or return subscription funds held in the Escrowed Property only Escrow Account in accordance with this Section 3 or Section 5. (d) For purposes of this Escrow Agreement, Agreement and the term “Appropriate Officers” means the President, Chief Executive Officer, or Chief Financial Officer instructions of the Company as set forth on Placement Agent and the Company’s most recently filed report , and it shall concurrently provide the Placement Agent and the Company with written notice of its disbursements or returns in accordance with the Securities and Exchange Commission. (e) The transfer of any instructions of the Escrowed Property by the Escrow Placement Agent to any party pursuant to this Section 3 shall be made by such means as shall be set forth in the joint instructions from the Company and the Investors delivered and satisfactory to the Escrow AgentCompany.

Disbursements from Escrow Account. (a) At Escrow Agent shall continue to hold and safeguard the Escrow Account until authorized hereunder to release the Escrow Funds and Escrow Agent shall only release the Escrow Funds, or any portion thereof, as follows: (i) pursuant to the Joint Instructions at any time on setting forth (A) the amount of indemnification or before June 30distribution, 2005 which shall be disbursed from the Escrow Account (to the extent of the then remaining balance thereof) and (B) the recipients thereof; provided, that, notwithstanding such Joint Instructions, the Escrow Agent shall report, and as required, except as otherwise provided in Section 3 of this Agreement, withhold from any payments or disbursements made pursuant to this Agreement from the Escrow Funds any taxes as it determines may be required by any law or regulation then in force; (ii) as determined by the final order, decree or judgment of a court of competent jurisdiction in the United States of America (the time for appeal having expired with no appeal having been taken) in a proceeding to which Purchaser and the Seller are parties (a “Final Decree”) upon receipt from Purchaser or Seller of a certified copy of such Final Decree together with a written notice (the “Notice”) which Notice shall state that such Final Decree is a final, non-appealable judgment or order from a court of competent jurisdiction resolving the dispute as to the release of the applicable portion of the Escrow Termination DateAccount, setting forth in reasonable detail the substance of such judgment and instructions as to the resulting release of the Escrow Account and certifying that a copy of such Notice has been simultaneously delivered to the Seller (if Purchaser is delivering the Notice) or Purchaser (if Seller is delivering the Notice) (such recipient, the “Non-Presenting Party”), in which case Escrow Agent shall release the applicable portion of such Escrow Account according to such Notice on the third (3rd) Business Day following receipt by Escrow Agent of the Notice; provided, however, that if the Non-Presenting Party delivers to Escrow Agent a certificate prior to such third (3rd) Business Day disputing the contents of the Notice, then Escrow Agent shall not release the disputed portion of the Escrow Account specified therein and shall interplead the disputed portion of the Escrow Account specified therein into, or file a declaratory judgment action with, a court of competent jurisdiction to determine the rights of the parties to the dispute unless prior to such interpleader or filing Escrow Agent receives joint written instructions from the Seller and Purchaser pursuant to Section 4(a)(i) hereof; or (iii) within three (3) Business Days after the eighteenth (18) month anniversary of the date hereof, Escrow Agent shall deliver to Seller the balance of the Escrow Account, after deducting from the Escrow Account an amount equal to the aggregate amounts set forth in then pending and unresolved Claim Notices (copies of which shall be delivered by the Purchaser to the Escrow Agent promptly following delivery thereof to the Seller pursuant to the Master Purchase Agreement). (b) As promptly as practicable following any disbursement of funds from the Escrow Account, the Escrow Agent shall send a written statement to each of Purchaser and Seller stating the amount and recipient of each such disbursement. (c) Upon receipt of any Joint Instructions in accordance with Section 4(a), the Escrow Agent shall make disbursements shall, as soon as practicable and in no event later than five Business Days after the receipt thereof, disburse the amounts from the Escrow Account upon receipt of joint written instructions executed by to Purchaser and/or Seller, as specified in such Joint Instructions to be so paid (to the Investor Representative and an Appropriate Officer extent of the Company instructing then-remaining balance of the Escrow Agent how to disburse the Escrowed Property or any part thereof (including without limitation income or earnings thereonFunds), and specifically setting forth the exact amount by wire transfer of cash immediately available funds pursuant to payment instructions (i) furnished by Purchaser with respect to any payment specified to be disbursed made to Purchaser in such Joint Instructions, and (ii) furnished by Seller with respect to any payments specified to be made to Seller in such Joint Instructions. In the identity event fund transfer instructions are given (other than in writing at the time of the execution of this Agreement), whether in writing, by telecopier or otherwise, Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or entity to which persons designated as a disbursement is “Representative” of a party on Schedule A attached hereto, and Escrow Agent may rely upon the confirmations of anyone purporting to be made, then the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent. Escrow Agent shall forthwith transfer from the Escrow Account and disburse the Escrowed Property or such part thereof in accordance with such instructions. (b) Without affecting any of the rights and obligations of Escrow Agent or limiting the provisions of section 3(a) hereof, and for the sole purpose of setting forth the rights and obligations of the Investors, the Investor Representative, and the Company with regards beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by Seller or Purchaser to the release of the Escrowed Property, the Investors, the Investor Representative, and the Company agree that: identify (i) In the event the conditions to the First Closing are fulfilledbeneficiary, by satisfaction or waiver, by both the Company and the Investors prior to the Escrow Termination Date, pursuant to Section 3(a) hereof, the Investor Representative shall execute joint written instructions with an Appropriate Officer of the Company to direct Escrow Agent to promptly disburse all Funds attributable to the First Closing to the Company; (ii) In the event the conditions to the Second Closing are satisfied prior to the Escrow Termination Datebeneficiary’s bank, the Investor Representative shall execute joint written instructions with an Appropriate Officer of the Company to direct Escrow Agent to promptly disburse the Funds to the Company, and any remaining Escrowed Property shall be returned to the Investors; or (iii) In the event the conditions to the Second Closing are not satisfied prior to the Escrow Termination Date, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct intermediary bank. Escrow Agent to promptly disburse may apply any of Escrow Funds for any payment order it executes using any such identifying number, even when its use may result in a person other than the Escrowed Property to the Investors in accordance with their pro rata interest therein; and (iv) Notwithstanding the foregoing, in the event the Company has not received stockholder approval of the transactions contemplated by the Stock Purchase Agreement within 75 days of the date hereof, the Company shall cause an Appropriate Officer of the Company to execute joint written instructions with the Investor Representative to direct Escrow Agent to promptly disburse that portion of the Escrowed Property to an Investor who elects to have its pro rata portion of the Escrowed Property released from escrow. (c) The Escrow Agent shall disburse the Escrowed Property only in accordance with this Section 3 or Section 5. (d) For purposes of this Escrow Agreement, the term “Appropriate Officers” means the President, Chief Executive Officerbeneficiary being paid, or Chief Financial Officer of the Company as set forth on the Company’s most recently filed report with the Securities and Exchange Commission. (e) The transfer of any of funds to a bank other than the Escrowed Property by the Escrow Agent to any party pursuant beneficiary’s bank or an intermediary bank designated. The parties to this Section 3 shall be made by Agreement acknowledge that such means as shall be set forth in the joint instructions from the Company and the Investors delivered and satisfactory to the Escrow Agentsecurity procedure is commercially reasonable.