Common use of DISBURSEMENTS OF ESCROW FUND Clause in Contracts

DISBURSEMENTS OF ESCROW FUND. From time to time, the Escrow Agent shall disburse all or part of the Escrow Fund in accordance with any written instruction from the REIT or the Operating Partnership (which shall include the amounts of each form of consideration to be disbursed, the person(s) to whom the disbursement is to be made, and the amount to be deducted from each Participant Account), provided that an officer of the REIT or the Operating Partnership certifies that such disbursement instructions (i) have been approved in accordance with Section 4.03 of the Indemnity Agreement, or (ii) represent a distribution to the Principals in accordance with Section 4.04 of the Indemnity Agreement. To the extent a disbursement is made in REIT Shares or OP Units, such disbursement shall be determined at a price per REIT Share or OP Unit equal to the IPO Price. To the extent that any disbursement is made pursuant to this Agreement in the form of REIT Shares or OP Units, the Consolidated Entities will purchase (at the IPO Price) such number of the securities as will permit the Escrow Agent to distribute cash in lieu of any fractional REIT Shares or OP Units. Prior to disbursing all or part of the Escrow Fund, the Escrow Agent will (i) notify the Principals in writing of the amount of the proposed disbursement and the portion thereof which is to be comprised of REIT Shares or OP Units and (ii) provide the Principals with the opportunity for at least ten (10) Business Days to (A) deposit an amount of cash, REIT Shares and/or OP Units into the Indemnity Holdback Escrow in exchange for an amount of REIT Shares and/or OP Units from the Indemnity Holdback Escrow of equal aggregate value and (B) direct the Escrow Agent to pay the proposed disbursement with an amount of cash, REIT Shares and/or OP Units equal in value to the originally proposed disbursement, but in such proportions as the Principal shall designate. For purposes of the preceding sentence, the value of all REIT Shares and/or OP Units shall be determined at a price per REIT Share or OP Unit equal to the IPO Price. In the event that the Principals directs the Escrow Agent to pay any proposed disbursement with proportions of cash, REIT Shares or OP Units that differ from those certified by the REIT or the Operating Partnership (and to the extent necessary, the Principals have deposited the necessary amounts of cash, REIT Shares and/or OP Units into the Indemnity Holdback Escrow to make such disbursement), the Escrow Agent shall pay such disbursement in accordance with the proportions of cash, REIT Shares and/or OP Units directed by the Principals rather than in accordance with such proportions certified by the REIT or the Operating Partnership.

DISBURSEMENTS OF ESCROW FUND. From time to time, the Escrow Agent shall disburse all or part of the Escrow Fund in accordance with any written instruction from the REIT or the Operating Partnership (which shall include the amounts of each form of consideration to be disbursed, the person(s) to whom the disbursement is to be made, and the amount to be deducted from each Participant Account), provided that an officer of the REIT or the Operating Partnership certifies that such disbursement instructions (i) have been approved in accordance with Section 4.03 of the Indemnity Agreement, or (ii) represent a distribution to the Principals Principal in accordance with Section 4.04 of the Indemnity Agreement. To the extent a disbursement is made in REIT Shares or OP Units, such disbursement shall be determined at a price per REIT Share or OP Unit equal to the IPO Price. To the extent that any disbursement is made pursuant to this Agreement in the form of REIT Shares or OP UnitsEscrow Securities, the Consolidated Entities will purchase (at the IPO Price) such number of the securities as will permit the Escrow Agent to distribute cash in lieu of any fractional REIT Shares shares or OP Units. Prior to disbursing all or part of the Escrow Fund, the Escrow Agent will (i) notify the Principals Principal in writing of the amount of the proposed disbursement and the portion thereof which is to be comprised of cash, REIT Shares or OP Units and (ii) provide the Principals Principal with the opportunity for at least ten (10) Business Days to (A) deposit an amount of cash, REIT Shares and/or OP Units into the Indemnity Holdback Escrow in exchange for an amount of cash, REIT Shares and/or OP Units from the Indemnity Holdback Escrow of equal aggregate value and (B) direct the Escrow Agent to pay the proposed disbursement with an amount of cash, REIT Shares and/or OP Units equal in value to the originally proposed disbursement, but in such proportions as the Principal shall designatedesignate to avoid adverse tax consequences. For purposes of the preceding sentence, the value of all REIT Shares and/or OP Units shall be determined at a price per REIT Share or OP Unit equal to the IPO Price. In the event that the Principals Principal directs the Escrow Agent to pay any proposed disbursement with proportions of cash, REIT Shares or OP Units that differ from those certified by the REIT or the Operating Partnership (and to the extent necessary, the Principals have Principal has deposited the necessary amounts of cash, REIT Shares and/or OP Units into the Indemnity Holdback Escrow to make such disbursement), the Escrow Agent shall pay such disbursement in accordance with the proportions of cash, REIT Shares and/or OP Units directed by the Principals Principal rather than in accordance with such proportions certified by the REIT or the Operating Partnership.

DISBURSEMENTS OF ESCROW FUND. From time The Escrow Agent shall hold the Escrow Fund in its possession until authorized to timemake disbursements as provided below. Except as provided in Sections 5(b), 5(c), and 5(d), the Escrow Agent shall disburse all or part of only make disbursements from the Escrow Fund in accordance with any a joint written instruction direction from the REIT or Purchaser Parties and the Operating Partnership Company Parties executed and delivered to the Escrow Agent (which shall include a "Written Direction"). (a) In the amounts of each form of consideration to be disbursed, event that the person(sPurchaser presents a certificate (the "Purchase Price Adjustment Certificate") to whom the disbursement is to be madeEscrow Agent, and the amount to be deducted from each Participant Account), provided that executed by an officer of the REIT or the Operating Partnership certifies that such disbursement instructions person enclosing either (i) have been approved in accordance with Section 4.03 a copy of the Indemnity AgreementClosing Certificate issued pursuant to Section 2.2(b) of the Asset Purchase Agreement and a statement that no objection was made by the Company or the Company Parent to the Closing Period during the Response Period, or (ii) represent a distribution copy of the Independent Accountant's decision rendered pursuant to Section 2.2(b) of the Asset Purchase Agreement, in each case stating: (i) the dollar amount and conversion to Purchaser Parent Shares and/or Company Parent Shares, as applicable, or portion thereof, to be disbursed by the Escrow Agent from the Escrow Fund (the "Purchase Price Adjustment Amount"); (ii) the name of the payee and appropriate contact information; and (iii) that the Purchaser has sent a copy of such Purchase Price Adjustment Certificate to the Principals other parties hereto in accordance with Section 4.04 17 hereof, then the Escrow Agent shall be authorized, five (5) business days after the receipt of such certificate, to transfer Purchaser Parent Shares and/or Company Parent Shares from the Shares Escrow to the Purchaser, in payment of the Indemnity amount due to the Purchaser to satisfy the Purchase Price Adjustment under the Asset Purchase Agreement. To Any such distribution shall first consist of the extent distribution of Purchaser Parent Shares, and thereafter, Company Parent Shares, as necessary to satisfy the Purchase Price Adjustment. (b) If, at any time on or before June [____], 2004 (the "Escrow Termination Date"), an event occurs in which the Purchaser believes constitutes the basis for the Purchaser Parties or any other Purchaser Indemnified Party to receive indemnity from the Indemnifying Parties pursuant to Article 9.1 of the Asset Purchase Agreement, the Purchaser shall furnish written notice in accordance with Section 17 hereof of such event (the "Indemnity Notice") to each of the Company Parties and the Escrow Agent setting forth the Purchaser Parties' or any other Purchaser Indemnified Party's belief of the basis therefor together with a disbursement good faith estimate of the reasonably foreseeable dollar amount, to be disbursed by the Escrow Agent from the Escrow Fund (the "Disputed Amount") then the Escrow Agent shall be authorized to make disbursements to the Purchaser of the Disputed Amount thirty (30) days after the receipt thereof; provided, however, if, within thirty (30) days following receipt by the Escrow Agent of such Indemnity Notice, the Escrow Agent receives a certificate executed by the Company or the Company Parent (a "Company Certificate") that the Company Parties in good faith dispute the Purchaser's claim, the Escrow Agent shall be authorized to disburse to the Purchaser the portion of the Disputed Amount which is made not disputed by the Company Parties in REIT Shares or OP Unitsthe Company Certificate. If the Purchaser Parties and the Company Parties are unable to resolve any dispute that arises under this Section 5(b) within twenty (20) days of the Escrow Agent's receipt of the Company Certificate, such disbursement dispute shall be determined submitted to dispute resolution pursuant to Section 9.4 of the Asset Purchase Agreement. The Escrow Agent shall set aside the undistributed portion of the Disputed Amount until the arbitrator provided for in Section 9.4 of the Asset Purchase Agreement shall deliver its final decision, at a price per REIT Share or OP Unit equal which time the Escrow Agent shall release such Disputed Amount in accordance with the arbitrator's award. (c) If, at any time prior to the IPO Price. To Escrow Termination Date, the extent Escrow Agent receives a certificate executed by the Purchaser Parties (together with all Indemnity Notices and Company Certificates, the "Certificates") stating (i) that the Purchaser or any disbursement other Indemnified Party is made entitled to indemnification from the Indemnifying Parties pursuant to this Article 9 of the Asset Purchase Agreement by reason of a binding arbitration award pursuant to Section 9.4 of the Asset Purchase Agreement and attaching a copy of such award, (ii) the dollar amount of such indemnification which is to be disbursed by the Escrow Agent from the Escrow Fund (which shall not exceed the amount granted in such award) and the form conversion to the Purchaser Parent Shares and/or the Company Parent Shares, as applicable, and (iii) the name of REIT Shares or OP Unitsthe payee and appropriate contact information (which shall be the Person in whose name such award has been entered), then the Escrow Agent shall be authorized, ten (10) days after receipt thereof, to make disbursements of the amount indicated in such certificate. The mailing of the Certificates, along with all documents and instruments thereto, shall be simultaneously mailed to the Escrow Agent and the Company Parties by the Purchaser in accordance with Section 17 hereof. (d) No later than twenty (20) days prior to the Escrow Termination Date, the Consolidated Entities will purchase (at Escrow Agent shall notify the IPO Price) such number of Purchaser Parties and the securities as will permit Company Parties in writing that, unless the Purchaser Parties notify the Escrow Agent to distribute cash the contrary in lieu of any fractional REIT Shares or OP Units. Prior a writing received prior to disbursing all or part of the Escrow FundTermination Date, the Escrow Agent will (i) notify assign and deliver to the Principals Company or the Company Parent or its nominee, as applicable, the remaining Escrow Fund; provided, however, that in writing of the amount of event the proposed disbursement and Purchaser Parties have prior to the portion thereof which is Escrow Termination Date delivered an Indemnity Notice to be comprised of REIT Shares or OP Units and (ii) provide the Principals with the opportunity for at least ten (10) Business Days to (A) deposit an amount of cash, REIT Shares and/or OP Units into the Indemnity Holdback Escrow in exchange for an amount of REIT Shares and/or OP Units from the Indemnity Holdback Escrow of equal aggregate value and (B) direct the Escrow Agent to pay the proposed disbursement in accordance with an amount of cash, REIT Shares and/or OP Units equal in value to the originally proposed disbursement, but in such proportions as the Principal shall designate. For purposes of the preceding sentence, the value of all REIT Shares and/or OP Units shall be determined at a price per REIT Share or OP Unit equal to the IPO Price. In the event that the Principals directs the Escrow Agent to pay any proposed disbursement with proportions of cash, REIT Shares or OP Units that differ from those certified by the REIT or the Operating Partnership (and to the extent necessary, the Principals have deposited the necessary amounts of cash, REIT Shares and/or OP Units into the Indemnity Holdback Escrow to make such disbursementSection 5(b), the Escrow Agent shall pay only be authorized under this Section 5(d) to assign and deliver the excess of the Escrow Fund over the Disputed Amount (to the extent such disbursement in accordance with the proportions of cash, REIT Shares and/or OP Units directed Disputed Amount has not already been disbursed by the Principals rather than in accordance with such proportions certified by Escrow Agent to the REIT Purchaser, pursuant to Section 5(b) or the Operating Partnership.otherwise). (e)

DISBURSEMENTS OF ESCROW FUND. From (a) Escrow Agent shall disburse Escrow Fund, or a portion thereof, at any time and from time to time, upon receipt of, and in accordance with, a Joint Written Direction substantially in the form of Attachment 1 hereto and received by Escrow Agent shall disburse all or part as set forth in Section 15. Such Joint Written Direction must contain the amount of the Escrow Fund in accordance with any written instruction from the REIT or the Operating Partnership (which shall include the amounts of each form of consideration to be disbursedso released and complete payment instructions, including funds transfer instructions or an address to which a check should be sent. (b) Purchaser and Seller, as between themselves, hereby agree that if Purchaser makes a claim for any uncollected accounts receivable pursuant to Section 2.2(d)(ii) of the person(sPurchase Agreement, Purchaser and Seller shall execute and deliver to Escrow Agent a Joint Written Direction, authorizing Escrow Agent to disburse the Indemnity Escrow Amount to Purchaser in the amount of such uncollected accounts receivable. (c) Purchaser and Seller, as between themselves, hereby agree that Purchaser and Seller shall execute and deliver to whom Escrow Agent a Joint Written Direction, authorizing Escrow Agent to disburse the disbursement Adjustment Escrow Amount to Seller or Purchaser, as applicable, pursuant to the terms of Section 2.2(b) of the Purchase Agreement. (d) Upon the expiration of the Escrow Period, Escrow Agent shall distribute to Seller pursuant to the funds transfer instruction set forth in this Section 4(c), as promptly as practicable, any remaining Indemnity Escrow Amount not subject to a Claim Notice as provided in Section 6. Purchaser and Seller each acknowledges that the Escrow Agent is authorized to use the following funds transfer instructions to disburse any funds due to Seller: Bank Name: Eagle Bank Bank Address: 0000 Xxxxxxxx Xxxxxx Xxxxxxxx, XX 00000 ABA No.: 000000000 Account Name: Xxxxxxxx Real Estate Services, L. C. Account No.: 020-017-7905 (e) Prior to any disbursement, Escrow Agent must receive reasonable identifying information regarding the recipient so that Escrow Agent is able to comply with its regulatory obligations and reasonable business practices, including without limitation a completed United States Internal Revenue Service (“IRS”) Form W-9 or Form W-8, as applicable. All disbursements of Escrow Fund will be made, subject to the fees and claims of Escrow Agent and the amount Indemnified Parties pursuant to be deducted from Section 11 and Section 12. (f) Purchaser and Seller may each Participant Account), provided that an officer of the REIT or the Operating Partnership certifies that such disbursement instructions (i) have been approved deliver written notice to Escrow Agent in accordance with Section 4.03 of the Indemnity Agreement15 changing their respective funds transfer instructions, or (ii) represent a distribution to the Principals in accordance with Section 4.04 of the Indemnity Agreement. To the extent a disbursement is made in REIT Shares or OP Units, such disbursement shall be determined at a price per REIT Share or OP Unit equal to the IPO Price. To the extent that any disbursement is made pursuant to this Agreement in the form of REIT Shares or OP Units, the Consolidated Entities which notice will purchase (at the IPO Price) such number of the securities as will permit the Escrow Agent to distribute cash in lieu of any fractional REIT Shares or OP Units. Prior to disbursing all or part of the Escrow Fund, the Escrow Agent will (i) notify the Principals in writing of the amount of the proposed disbursement and the portion thereof which is to be comprised of REIT Shares or OP Units and (ii) provide the Principals with the opportunity for at least ten (10) Business Days to (A) deposit an amount of cash, REIT Shares and/or OP Units into the Indemnity Holdback Escrow in exchange for an amount of REIT Shares and/or OP Units from the Indemnity Holdback Escrow of equal aggregate value and (B) direct the Escrow Agent to pay the proposed disbursement with an amount of cash, REIT Shares and/or OP Units equal in value to the originally proposed disbursement, but in such proportions as the Principal shall designate. For purposes of the preceding sentence, the value of all REIT Shares and/or OP Units shall be determined at a price per REIT Share or OP Unit equal to the IPO Price. In the event that the Principals directs the Escrow Agent to pay any proposed disbursement with proportions of cash, REIT Shares or OP Units that differ from those certified by the REIT or the Operating Partnership (and to the extent necessary, the Principals have deposited the necessary amounts of cash, REIT Shares and/or OP Units into the Indemnity Holdback Escrow to make such disbursement), the Escrow Agent shall pay such disbursement in accordance with the proportions of cash, REIT Shares and/or OP Units directed by the Principals rather than in accordance with such proportions certified by the REIT or the Operating Partnership.3 7 2602403v32602403v7