Common use of Disposition of Escrow Deposit Clause in Contracts

Disposition of Escrow Deposit. Escrow Agent shall hold the Purchase Price Escrow Deposit and the Option Escrow Deposit (collectively, the "ESCROW DEPOSIT") in its possession pursuant to the terms and provisions of this Agreement and shall distribute the Escrow Deposit to the respective parties as set forth below: (a) On the Closing Date, the Escrow Agent shall distribute: (i) the Purchase Price Escrow Deposit to the Selling Optionholder and (ii) the Option Assignment Instruments covering all the Options to Buyer; PROVIDED, HOWEVER, that, upon receipt of a notice of any claim (a "NOTICE OF CLAIM") by the Selling Optionholder or Buyer for amounts owed to it pursuant to the indemnification provisions contained in Section 5.02 and 5.03 hereof or otherwise pursuant to this Agreement, as more fully set forth herein (each, a "CLAIM"), Escrow Agent shall distribute the Escrow Deposit on or after January 5, 1997 in accordance with 1.05(b) below. (b) Promptly upon receipt of any Notice of Claim, Escrow Agent shall mail a copy of such notice to the other parties, specifying the date on which Escrow Agent received such Notice of Claim. Escrow Agent shall retain in the Purchase Price Escrow Account an amount equal to the amount set forth in the Notice of Claim (the "DISPUTED AMOUNT") and shall retain in the Option Escrow Account such proportion of the Options (the "DISPUTED OPTIONS") that is equal to the proportion that the Disputed Amount bears to the Purchase Price. Thereafter, Escrow Agent shall distribute any undisputed amounts in the Escrow Account to the Selling Optionholder and any undisputed portion of the Options to Buyer. (c) Escrow Agent shall continue to hold any undistributed portions of the Escrow Deposit in escrow and shall only distribute same upon delivery of and in accordance with (i) joint written instructions of Buyer and the Selling Optionholder or (ii) written instructions of Buyer or the Selling Optionholder certifying that the dispute with respect to the Claim has been determined and resolved by entry of a final order, decree or judgment by a court of competent jurisdiction in the United States (the time for appeal therefrom having expired and no appeal having been perfected), or consent to entry of any judgment concerning the Claim, which instructions shall be accompanied by a copy of any such order, decree or judgment certified by the clerk of such court. (d) For purposes of enabling Escrow Agent to distribute Options to Buyer strictly in accordance with the provisions of this Agreement, Selling Optionholder hereby authorizes Escrow Agent to insert the date, and fill in the appropriate number of Options, into one or more of the blank Option Assignment Instruments. (e) At the Closing or as provided in Section 6.02 hereof, Escrow Agent shall distribute to Buyer the Escrow Interest earned on the Purchase Price Escrow Deposit from the date of establishment of the Purchase Price Escrow Account through the date of such distribution. In the event that any amounts are held as disputed funds under Section 1.05(b) or (c) above on the Closing Date, the Escrow Interest earned after the Closing Date attributable thereto shall be retained by Escrow Agent in the Purchase Price Escrow Account and shall be distributed by Escrow Agent to the party which ultimately prevails on the related Claim or, if both parties ultimately prevail, in accordance with their respective interests therein. (f) Each party shall be responsible for all taxes payable on any Escrow Interest distributed to it. Any taxes which become due with respect to accrued interest on any disputed funds held by Escrow Agent pursuant to Section 1.05(b) or (c) hereof shall be paid by Escrow Agent out of such disputed funds.

Disposition of Escrow Deposit. Escrow Agent shall hold the Purchase Price Escrow Deposit and the Option Escrow Deposit IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT, AND BUYER SHALL NOT HAVE DEFAULTED UNDER THIS AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NO PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER (collectively, the "ESCROW DEPOSIT") in its possession pursuant to the terms and provisions of this Agreement and shall distribute the Escrow Deposit to the respective parties as set forth below: (a) On the Closing Date, the Escrow Agent shall distribute: (i) the Purchase Price Escrow Deposit to the Selling Optionholder and (ii) the Option Assignment Instruments covering all the Options to BuyerEXCEPT AS PROVIDED IN SECTIONS 10.1 AND 10.10); PROVIDED, HOWEVER, thatIF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY BY REASON OF SELLER'S DEFAULT, upon receipt of a notice of any claim AND BUYER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN BUYER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS AGREEMENT (a "NOTICE BUT NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED). IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE FOR ANY REASON OTHER THAN THE DEFAULT OF CLAIM"SELLER, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT. IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL CLOSE, THE ESCROW DEPOSIT SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE PRICE. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE SUBJECT PARTNERSHIP INTEREST, WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S BREACH OR DEFAULT. IN THE EVENT THE SALE CONTEMPLATED HEREBY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF SUBSECTIONS 10.1 AND 10.10 AND SECTION 6.2D OF THE OPERATING PARTNERSHIP AGREEMENT (AS TO WHICH BUYER SHALL HAVE NO FURTHER RIGHTS) by the Selling Optionholder or Buyer for amounts owed to it pursuant to the indemnification provisions contained in Section 5.02 and 5.03 hereof or otherwise pursuant to this Agreement, as more fully set forth herein (each, a "CLAIM"), Escrow Agent shall distribute the Escrow Deposit on or after January 5, 1997 in accordance with 1.05(b) below. (b) Promptly upon receipt of any Notice of Claim, Escrow Agent shall mail a copy of such notice to the other parties, specifying the date on which Escrow Agent received such Notice of ClaimAND THE PARTIES SHALL TAKE SUCH ACTION AS MAY BE REQUIRED TO CAUSE THE ESCROW DEPOSIT TO BE DELIVERED TO SELLER. Escrow Agent shall retain in the Purchase Price Escrow Account an amount equal to the amount set forth in the Notice of Claim (the "DISPUTED AMOUNT") and shall retain in the Option Escrow Account such proportion of the Options (the "DISPUTED OPTIONS") that is equal to the proportion that the Disputed Amount bears to the Purchase Price. Thereafter, Escrow Agent shall distribute any undisputed amounts in the Escrow Account to the Selling Optionholder and any undisputed portion of the Options to _____________________ ___________________ Buyer. (c) Escrow Agent shall continue to hold any undistributed portions of the Escrow Deposit in escrow and shall only distribute same upon delivery of and in accordance with (i) joint written instructions of Buyer and the Selling Optionholder or (ii) written instructions of Buyer or the Selling Optionholder certifying that the dispute with respect to the Claim has been determined and resolved by entry of a final order, decree or judgment by a court of competent jurisdiction in the United States (the time for appeal therefrom having expired and no appeal having been perfected), or consent to entry of any judgment concerning the Claim, which instructions shall be accompanied by a copy of any such order, decree or judgment certified by the clerk of such court. (d) For purposes of enabling Escrow Agent to distribute Options to Buyer strictly in accordance with the provisions of this Agreement, Selling Optionholder hereby authorizes Escrow Agent to insert the date, and fill in the appropriate number of Options, into one or more of the blank Option Assignment Instruments. (e) At the Closing or as provided in Section 6.02 hereof, Escrow Agent shall distribute to Buyer the Escrow Interest earned on the Purchase Price Escrow Deposit from the date of establishment of the Purchase Price Escrow Account through the date of such distribution. In the event that any amounts are held as disputed funds under Section 1.05(b) or (c) above on the Closing Date, the Escrow Interest earned after the Closing Date attributable thereto shall be retained by Escrow Agent in the Purchase Price Escrow Account and shall be distributed by Escrow Agent to the party which ultimately prevails on the related Claim or, if both parties ultimately prevail, in accordance with their respective interests therein. (f) Each party shall be responsible for all taxes payable on any Escrow Interest distributed to it. Any taxes which become due with respect to accrued interest on any disputed funds held by Escrow Agent pursuant to Section 1.05(b) or (c) hereof shall be paid by Escrow Agent out of such disputed funds.'s Initials Seller's Initials

Disposition of Escrow Deposit. Escrow Agent shall will hold the Purchase Price Escrow Deposit and the Option Escrow Deposit (collectively, the "ESCROW DEPOSIT") in its possession pursuant to under the terms and provisions of this Agreement and shall distribute until authorized hereunder to deliver the Escrow Deposit to the respective parties or any specified portion thereof as set forth belowfollows: (a) On the Closing DateDate (as defined in Section 1.03 of the Securities Purchase Agreement), the Escrow Agent shall distribute: (i) the Purchase Price Escrow Deposit to the Selling Optionholder and (ii) the Option Assignment Instruments covering all the Options to Buyer; PROVIDED, HOWEVER, thatshall, upon receipt of a notice of any claim (a "NOTICE OF CLAIM") by joint written instructions from Buyer and the Selling Optionholder or Buyer for amounts owed to it pursuant to the indemnification provisions contained Shareholders Representative and in Section 5.02 and 5.03 hereof or otherwise pursuant to this Agreementaccordance therewith, as more fully set forth herein (each, a "CLAIM"), Escrow Agent shall distribute disburse the Escrow Deposit held on or after January 5, 1997 in accordance with 1.05(b) below. (b) Promptly upon receipt of any Notice of Claim, Escrow Agent shall mail a copy of such notice date to the other partiesSelling Shareholders Representative, specifying less the date on which Escrow Agent received such amounts, if any, covered by the Buyer's Purchase Price Claim Notice (as defined below) pursuant to clause (i) of Claimthis subsection (a). Escrow Agent shall retain in the Escrow Account such amounts and shall only release such funds in accordance with clause (ii) of this subsection (a). (i) If the Closing (as defined in Section 1.03 of the Securities Purchase Agreement) occurs prior to final determination of the Purchase Price adjustments pursuant to Section 1.04 of the Securities Purchase Agreement (including the dispute resolution mechanisms contained therein), Escrow Account an amount equal Agent shall, at Closing, disburse the Escrow Deposit held on such date to the amount Selling Shareholders Representative, less any amounts covered by any claim notice (the "Buyer's Purchase Price Claim Notice") delivered by Buyer to the Escrow Agent on or prior to the Closing Date (the "Disputed Purchase Price"); PROVIDED, THAT, and only to the extent that, such Disputed Purchase Price satisfies the criteria for the holding back of disputed amounts by Escrow Agent set forth in the Notice last sentence of Claim (the "DISPUTED AMOUNT") and shall retain in the Option Escrow Account such proportion of the Options (the "DISPUTED OPTIONS") that is equal to the proportion that the Disputed Amount bears to the Purchase Price. Thereafter, Escrow Agent shall distribute any undisputed amounts in the Escrow Account to the Selling Optionholder and any undisputed portion of the Options to Buyer. Section 1.04 (c) Escrow Agent shall continue to hold any undistributed portions of the Escrow Deposit in escrow and shall only distribute same upon delivery of and in accordance with (i) joint written instructions of Buyer and the Selling Optionholder or (ii) written instructions of Buyer or the Selling Optionholder certifying that the dispute with respect to the Claim has been determined and resolved by entry of a final order, decree or judgment by a court of competent jurisdiction in the United States (the time for appeal therefrom having expired and no appeal having been perfected), or consent to entry of any judgment concerning the Claim, which instructions shall be accompanied by a copy of any such order, decree or judgment certified by the clerk of such court. (d) For purposes of enabling Escrow Agent to distribute Options to Buyer strictly in accordance with the provisions of this Agreement, Selling Optionholder hereby authorizes Escrow Agent to insert the date, and fill in the appropriate number of Options, into one or more of the blank Option Assignment Instruments. (e) At the Closing or as provided in Section 6.02 hereof, Escrow Agent shall distribute to Buyer the Escrow Interest earned on the Purchase Price Escrow Deposit from the date of establishment of the Purchase Price Escrow Account through the date of such distribution. In the event that any amounts are held as disputed funds under Section 1.05(b) or (c) above on the Closing Date, the Escrow Interest earned after the Closing Date attributable thereto shall be retained by Escrow Agent in the Purchase Price Escrow Account and shall be distributed by Escrow Agent to the party which ultimately prevails on the related Claim or, if both parties ultimately prevail, in accordance with their respective interests therein. (f) Each party shall be responsible for all taxes payable on any Escrow Interest distributed to it. Any taxes which become due with respect to accrued interest on any disputed funds held by Escrow Agent pursuant to Section 1.05(b) or (c) hereof shall be paid by Escrow Agent out of such disputed funds.

Disposition of Escrow Deposit. Escrow Agent 9.1 If the transaction herein provided shall hold not close by reason of Seller’s default under this Agreement or the Purchase Price failure of satisfaction of the conditions benefiting Buyer under Section 4 or the termination of this Agreement in accordance with Section 6, then any remaining Escrow Deposit shall be immediately returned to Buyer, and the Option Escrow Deposit (collectively, the "ESCROW DEPOSIT") in its possession pursuant no party shall have any further obligation or liability to the terms and other (except under those provisions of the TIC Agreement or the provisions of this Agreement that expressly survive a termination of this Agreement); provided, however, if the transactions, or some of them, provided for hereunder shall fail to close by reason of Seller’s default, then Buyer shall be entitled to either (1) specifically enforce this Agreement or (2) terminate Buyer’s remaining purchase obligations under this Agreement and obtain a return of any remaining Escrow Deposit, but no other action, for rescission of previously completed transfers of partial interests hereunder, for damages or otherwise, shall distribute be permitted. 9.2 IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF BUYER’S DEFAULT (ALL CONDITIONS BENEFITING BUYER UNDER SECTION 4 HAVING BEEN SATISFIED OR WAIVED IN WRITING), THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT, AND IN SUCH EVENT, BUYER SHALL NOT BE LIABLE TO SELLER FOR MONETARY DAMAGES EXCEPT FOR FORFEITURE OF THE ESCROW DEPOSIT (AND AS PROVIDED UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT). IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER’S BREACH OR DEFAULT. IN THE EVENT THE SALE CONTEMPLATED HEREBY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER’S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT AND THE PARTIES SHALL TAKE SUCH ACTION AS MAY BE REQUIRED TO CAUSE THE ESCROW DEPOSIT TO BE DELIVERED TO SELLER. NOTWITHSTANDING ANYTHING HEREIN CONTAINED TO THE CONTRARY, IF ANY OF THE TRANSACTIONS PROVIDED FOR HEREUNDER SHALL FAIL TO CLOSE BY REASON OF BUYER’S DEFAULT, SELLER SHALL HAVE FULLY PERFORMED OR HAVE TENDERED FULL PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE AND SELLER HAS GIVEN BUYER WRITTEN NOTICE TO BUYER OF ITS ELECTION TO PROCEED UNDER THIS SENTENCE WITHIN THIRTY (30) DAYS AFTER SUCH DEFAULT, THEN SELLER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS AGREEMENT (AND SELLER SHALL NOT, AS TO THE PENDING TRANSFER OF AN INTEREST IN THE PROPERTY, BE ENTITLED TO THE FOREGOING LIQUIDATED DAMAGES BY REASON OF SUCH DEFAULT OF BUYER, OR TO BRING ANY OTHER ACTION, FOR DAMAGES OR OTHERWISE, EXCEPT FOR DAMAGES CUSTOMARILY AVAILABLE IN SPECIFIC PERFORMANCE ACTIONS RESULTING FROM A DELAY IN THE CLOSING, PROVIDED, FURTHER, THAT SUCH SPECIFIC PERFORMANCE ACTION SHALL BE FILED AND PROSECUTED PURSUANT TO AN ARBITRATION PROCEEDING UNDER SECTION 10 OF THIS AGREEMENT. 9.3 In the event the transaction herein provided shall close, the Escrow Deposit to the respective parties shall be applied as set forth below: (a) On the Closing Date, the Escrow Agent shall distribute: (i) a partial payment of the Purchase Price Escrow Deposit to the Selling Optionholder and (ii) the Option Assignment Instruments covering all the Options to Buyer; PROVIDED, HOWEVER, that, upon receipt of a notice of any claim (a "NOTICE OF CLAIM") by the Selling Optionholder or Buyer for amounts owed to it pursuant to the indemnification provisions contained in Section 5.02 and 5.03 hereof or otherwise pursuant to this Agreement, as more fully set forth herein (each, a "CLAIM"), Escrow Agent shall distribute the Escrow Deposit on or after January 5, 1997 in accordance with 1.05(b) below. (b) Promptly upon receipt of any Notice of Claim, Escrow Agent shall mail a copy of such notice to the other parties, specifying the date on which Escrow Agent received such Notice of Claim. Escrow Agent shall retain in the Purchase Price Escrow Account an amount equal to the amount set forth in the Notice of Claim (the "DISPUTED AMOUNT") and shall retain in the Option Escrow Account such proportion of the Options (the "DISPUTED OPTIONS") that is equal to the proportion that the Disputed Amount bears to the Installment Purchase Price. Thereafter, Escrow Agent shall distribute any undisputed amounts in the Escrow Account to the Selling Optionholder and any undisputed portion of the Options to Buyer. (c) Escrow Agent shall continue to hold any undistributed portions of the Escrow Deposit in escrow and shall only distribute same upon delivery of and in accordance with (i) joint written instructions of Buyer and the Selling Optionholder or (ii) written instructions of Buyer or the Selling Optionholder certifying that the dispute with respect to the Claim has been determined and resolved by entry of a final order, decree or judgment by a court of competent jurisdiction in the United States (the time for appeal therefrom having expired and no appeal having been perfected), or consent to entry of any judgment concerning the Claim, which instructions shall be accompanied by a copy of any such order, decree or judgment certified by the clerk of such court. (d) For purposes of enabling Escrow Agent to distribute Options to Buyer strictly in accordance with the provisions of Section 3.1 hereof, if applicable. 9.4 Notwithstanding anything to the contrary in this Agreement, Selling Optionholder hereby authorizes Escrow Agent to insert the date, and fill in the appropriate number of Options, into one no event shall Buyer or more of the blank Option Assignment Instruments. (e) At the Closing or as provided in Section 6.02 hereof, Escrow Agent shall distribute to Buyer the Escrow Interest earned on the Purchase Price Escrow Deposit from the date of establishment of the Purchase Price Escrow Account through the date of such distribution. In the event that any amounts are held as disputed funds under Section 1.05(b) or (c) above on the Closing Date, the Escrow Interest earned after the Closing Date attributable thereto shall Seller be retained by Escrow Agent in the Purchase Price Escrow Account and shall be distributed by Escrow Agent liable to the party which ultimately prevails on the related Claim or, if both parties ultimately prevail, in accordance with their respective interests therein. (f) Each party shall be responsible other for all taxes payable on any Escrow Interest distributed to it. Any taxes which become due consequential or punitive damages with respect to accrued interest on any disputed funds held by Escrow Agent pursuant to Section 1.05(b) or (c) hereof shall be paid by Escrow Agent out of such disputed fundsdefaults under this Agreement.

Disposition of Escrow Deposit. Escrow Agent shall hold the Purchase Price Escrow Deposit and the Option Escrow Deposit 9.1 IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER’S DEFAULT UNDER THIS AGREEMENT OR THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION 4 OR SECTION 6, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NO PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER (collectively, the "ESCROW DEPOSIT") in its possession pursuant to the terms and provisions of this Agreement and shall distribute the Escrow Deposit to the respective parties as set forth below: (a) On the Closing Date, the Escrow Agent shall distribute: (i) the Purchase Price Escrow Deposit to the Selling Optionholder and (ii) the Option Assignment Instruments covering all the Options to BuyerEXCEPT UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT); PROVIDED, HOWEVER, thatIF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE BY REASON OF SELLER’S DEFAULT, upon receipt of a notice of any claim THEN BUYER SHALL BE ENTITLED TO EITHER (a "NOTICE 1) SPECIFICALLY ENFORCE THIS AGREEMENT OR (2) TERMINATE THIS AGREEMENT AND OBTAIN A RETURN OF CLAIM") by the Selling Optionholder or Buyer for amounts owed to it pursuant to the indemnification provisions contained in Section 5.02 and 5.03 hereof or otherwise pursuant to this AgreementTHE ESCROW DEPOSIT AND UPON SUCH TERMINATION BUYER SHALL BE ENTITLED TO RECOVER FROM SELLER ALL OF BUYER’S REASONABLE, as more fully set forth herein (eachOUT-OF-POCKET, a "CLAIM")DOCUMENTED COSTS AND EXPENSES ACTUALLY INCURRED IN CONNECTION WITH THE NEGOTIATION AND DELIVERY OF THIS AGREEMENT, Escrow Agent shall distribute the Escrow Deposit on or after January 5ALL DUE DILIGENCE PERFORMED BY OR ON BEHALF OF BUYER IN CONNECTION WITH THE PROPERTY AND ALL COSTS INCURRED IN CONNECTION WITH BUYER’S EFFORTS TO OBTAIN FINANCING FOR THE PROPERTY; PROVIDED, 1997 in accordance with 1.05(b) belowTHAT SELLER’S OBLIGATION TO REIMBURSE BUYER FOR SUCH COSTS AND EXPENSES SHALL NOT EXCEED $150,000.00. NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED, AND BUYER SPECIFICALLY WAIVES THE RIGHT TO RECOVER EITHER CONSEQUENTIAL OR EXEMPLARY DAMAGES, AND FURTHER WAIVES THE RIGHT TO A JURY TRIAL. 9.2 IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE FOR ANY REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION 4 OR SECTION 6 OR THE DEFAULT OF SELLER, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT, AND IN SUCH EVENT, BUYER SHALL NOT BE LIABLE TO SELLER FOR MONETARY DAMAGES EXCEPT FOR FORFEITURE OF THE ESCROW DEPOSIT (b) Promptly upon receipt of any Notice of ClaimAND AS PROVIDED UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT). IN CONNECTION WITH THE FOREGOING, Escrow Agent shall mail a copy of such notice to the other partiesTHE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, specifying the date on which Escrow Agent received such Notice of ClaimTHAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER’S BREACH OR DEFAULT. Escrow Agent shall retain in the Purchase Price Escrow Account an amount equal to the amount set forth in the Notice of Claim (the "DISPUTED AMOUNT") and shall retain in the Option Escrow Account such proportion of the Options (the "DISPUTED OPTIONS") that is equal to the proportion that the Disputed Amount bears to the Purchase Price. ThereafterIN THE EVENT THE SALE CONTEMPLATED HEREBY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER’S DEFAULT, Escrow Agent shall distribute any undisputed amounts in the Escrow Account to the Selling Optionholder and any undisputed portion of the Options to BuyerTHEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT AND THE PARTIES SHALL TAKE SUCH ACTION AS MAY BE REQUIRED TO CAUSE THE ESCROW DEPOSIT TO BE DELIVERED TO SELLER. (c) Escrow Agent shall continue to hold any undistributed portions of the Escrow Deposit in escrow and shall only distribute same upon delivery of and in accordance with (i) joint written instructions of Buyer and the Selling Optionholder or (ii) written instructions of Buyer or the Selling Optionholder certifying that the dispute with respect to the Claim has been determined and resolved by entry of a final order, decree or judgment by a court of competent jurisdiction in the United States (the time for appeal therefrom having expired and no appeal having been perfected), or consent to entry of any judgment concerning the Claim, which instructions shall be accompanied by a copy of any such order, decree or judgment certified by the clerk of such court. (d) For purposes of enabling Escrow Agent to distribute Options to Buyer strictly in accordance with the provisions of this Agreement, Selling Optionholder hereby authorizes Escrow Agent to insert the date, and fill in the appropriate number of Options, into one or more of the blank Option Assignment Instruments. (e) At the Closing or as provided in Section 6.02 hereof, Escrow Agent shall distribute to Buyer the Escrow Interest earned on the Purchase Price Escrow Deposit from the date of establishment of the Purchase Price Escrow Account through the date of such distribution. In the event that any amounts are held as disputed funds under Section 1.05(b) or (c) above on the Closing Date, the Escrow Interest earned after the Closing Date attributable thereto shall be retained by Escrow Agent in the Purchase Price Escrow Account and shall be distributed by Escrow Agent to the party which ultimately prevails on the related Claim or, if both parties ultimately prevail, in accordance with their respective interests therein. (f) Each party shall be responsible for all taxes payable on any Escrow Interest distributed to it. Any taxes which become due with respect to accrued interest on any disputed funds held by Escrow Agent pursuant to Section 1.05(b) or (c) hereof shall be paid by Escrow Agent out of such disputed funds.