Common use of Earnxxx Xxxey Clause in Contracts

Earnxxx Xxxey. Concurrently with the execution of this Agreement, Buyer shall deposit, in a strict joint order escrow (the "Earnxxx Xxxey Escrow") with the Escrow Agent the sum of Five Million and No/100 Dollars ($5,000,000.00) (the "Initial Deposit"), such amount to be held as an earnxxx xxxey deposit hereunder in accordance with the provisions of a strict joint order escrow agreement in the form attached hereto as Exhibit D (the "Earnxxx Xxxey Escrow Agreement"). If Buyer terminates this Agreement on or before the Firm Date pursuant to Section 3.06(b) hereof, the Escrow Agent shall remit the Initial Deposit to the Buyer. If the Buyer does not terminate this Agreement on or before the Firm Date, (i) the Initial Deposit shall become non-refundable and the Buyer shall have no right to receive the Initial Deposit at any time thereafter, unless an Intentional Seller Default shall have occurred as specified in Section 8.07(a) of this Agreement, and (ii) on the Firm Date, Buyer shall deposit into the Earnxxx Xxxey Escrow with the Escrow Agent the sum of Fifteen Million and No/100 Dollars ($15,000,000.00) (the "Additional Deposit"). If Buyer terminates this Agreement pursuant to Section 3.06(d) after the Firm Date and prior to the expiration of the Due Diligence Period, the Escrow Agent shall no later than two (2) Business Days after the receipt of the Due Diligence Termination Notice refund the Additional Deposit to the Buyer and deliver the Initial Deposit to the Sellers. At the Closing, unless this Agreement has been terminated in accordance with the terms hereof, Buyer and Sellers shall cause their respective representatives to direct the transfer of the remaining Earnxxx Xxxey in the Earnxxx Xxxey Escrow to Sellers, such amount to be applied in partial satisfaction of the obligation of Buyer with respect to the Purchase Price. All Earnxxx Xxxey deposited in the Earnxxx Xxxey Escrow shall be invested from time to time in United States government securities, commercial paper, certificates of deposit or other interest- 27 -22- bearing accounts or certificates as directed by Buyer and as reasonably approved by Sellers, in all events such investments to have dates of maturity not later than the then estimated date for Closing. All costs and expenses of the Escrow Agent incurred in connection with the establishment of the Earnxxx Xxxey Escrow or the Earnxxx Xxxey Escrow Agreement shall be paid from the investment income generated by the Earnxxx Xxxey Escrow.

Earnxxx Xxxey. Concurrently with Upon the execution of this Agreement, Buyer shall deposit, in a strict joint order escrow Highwoods will deliver to Chicago Title Insurance Company (hereinafter referred to as the "Escrow Agent") the sum of Fifty Thousand and no/100 Dollars ($50,000.00) (hereinafter the "Initial Earnxxx Xxxey"). The Initial Earnxxx Xxxey Escrowshall be deposited by the Escrow Agent into an interest bearing account at the direction of Highwoods, and shall be paid to Owner or Highwoods according to the provisions set forth below. If Highwoods has not terminated this Agreement prior to the end of the Inspection Period as defined in Section 7 below, Highwoods shall deposit an additional Fifty Thousand and no/100 Dollars ($50,000.00) (hereinafter, the "Additional Earnxxx Xxxey") with the Escrow Agent by 5:00 p.m. on the sum first business day immediately following the Inspection Period. The Additional Earnxxx Xxxey shall be deposited by the Escrow Agent into an interest bearing account at the direction of Five Million Highwoods, and No/100 Dollars ($5,000,000.00) (shall be paid to Owner or Highwoods according to the provisions set forth below. The Initial Earnxxx Xxxey and the Additional Earnxxx Xxxey are collectively referred to herein as the "Initial Deposit")Earnxxx Xxxey." In the event the transaction contemplated by this Agreement closes or should this transaction not close solely because of any default on the part of Owner, such amount or if any of the conditions precedent set forth in Section 8 fail to be held satisfied at Closing, or if Highwoods terminates its obligations set forth herein pursuant to any other provision of this Agreement, then the Escrow Agent shall pay to Highwoods all Earnxxx Xxxey, including interest which has accrued thereon, but such return shall not affect any other remedies available to Highwoods, as an earnxxx xxxey deposit hereunder specified and limited in this Agreement, in the event of a breach of this Agreement by Owner; provided, in the event Highwoods terminates this Agreement pursuant to Section 7 hereof, $100 of the Earnxxx Xxxey should be paid to Owner as consideration for Highwoods' right to terminate this Agreement pursuant to Section 7. In the event the transaction contemplated by this Agreement is not closed solely because of any default on the part of Highwoods, then the Escrow Agent shall pay to Owner all Earnxxx Xxxey, including interest which has accrued thereon, and such payment shall be and represent liquidated damages arising out of Highwoods' default, which liquidated damages shall be the full extent of Highwoods' liability with respect to such default and Owner shall have no further right or claim against Highwoods. Upon the filing of a written demand for the Earnxxx Xxxey by Highwoods or Owner, pursuant to this Section 3, the Escrow Agent shall promptly mail a copy thereof to the other party. The other party shall have the right to object to the delivery of the Earnxxx Xxxey by filing written notice of such objection with the Escrow Agent such that it is actually received by the Escrow Agent at any time within ten (10) days after the mailing of such copy to it, but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Earnxxx Xxxey. Upon receipt of such notice, the Escrow Agent shall promptly mail a copy thereof to the party who filed the written demand. If the Escrow Agent does not receive a notice of objection as set forth above, it shall pay the Earnxxx Xxxey, plus interest which has accrued thereon, to the party requesting payment of same. In the event the Escrow Agent shall have received the notice of objection provided for above and within the time therein prescribed, the Escrow Agent shall continue to hold the Earnxxx Xxxey until (i) the Escrow Agent receives written notice from Owner and Highwoods directing the disbursement of said Earnxxx Xxxey, in which case the Escrow Agent shall then disburse said Earnxxx Xxxey in accordance with said direction; or (ii) in the event of litigation between Owner and Highwoods, the Escrow Agent shall deliver the Earnxxx Xxxey to the Clerk of the Court in which said litigation is pending; or (iii) the Escrow Agent takes such affirmative steps as the Escrow Agent may, in the Escrow Agent's reasonable opinion, elect in order to terminate the Escrow Agent's duties, including but not limited to, deposit in the Court of appropriate jurisdiction in connection with an action for interpleader, the costs thereof to be borne by whichever of Owner or Highwoods is the losing party. The Escrow Agent may act upon any instrument or other writing believed by it in good faith to be genuine and to be signed and presented by the proper person, and shall not be liable in connection with the performance of any duties imposed upon the Escrow Agent by the provisions of a strict joint order escrow agreement this Agreement, except for the Escrow Agent's willful default. The Escrow Agent shall have no duties or responsibilities except those set forth herein. The Escrow Agent shall not be bound by any modification of this Agreement, unless the same is in writing and signed by Highwoods and Owner, and, if the Escrow Agent's duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. In the event that the Escrow Agent shall be uncertain as to the Escrow Agent's duties or rights hereunder, or shall receive instructions from Highwoods or Owner which, in the form attached hereto as Exhibit D (Escrow Agent's opinion, are in conflict with any of the "Earnxxx Xxxey Escrow Agreement"). If Buyer terminates this Agreement on or before the Firm Date pursuant to Section 3.06(b) provisions hereof, the Escrow Agent shall remit the Initial Deposit be entitled to the Buyer. If the Buyer does not terminate this Agreement on or before the Firm Date, (i) the Initial Deposit shall become non-refundable hold and the Buyer shall have no right to receive the Initial Deposit at any time thereafter, unless an Intentional Seller Default shall have occurred as specified in Section 8.07(a) of this Agreement, and (ii) on the Firm Date, Buyer shall deposit into apply the Earnxxx Xxxey Escrow with the Escrow Agent the sum of Fifteen Million and No/100 Dollars ($15,000,000.00) (the "Additional Deposit"). If Buyer terminates this Agreement pursuant to Section 3.06(d) after the Firm Date preceding paragraph and prior may decline to the expiration of the Due Diligence Period, the take any other action. The Escrow Agent shall no later than two (2) Business Days after the receipt of the Due Diligence Termination Notice refund the Additional Deposit to the Buyer and deliver the Initial Deposit to the Sellers. At the Closing, unless this Agreement has been terminated in accordance with the terms hereof, Buyer and Sellers shall cause their respective representatives to direct the transfer of the remaining Earnxxx Xxxey in the Earnxxx Xxxey Escrow to Sellers, such amount to be applied in partial satisfaction of the obligation of Buyer with respect to the Purchase Price. All Earnxxx Xxxey deposited in the Earnxxx Xxxey Escrow shall be invested from time to time in United States government securities, commercial paper, certificates of deposit or other interest- 27 -22- bearing accounts or certificates not charge a fee for its services as directed by Buyer and as reasonably approved by Sellers, in all events such investments to have dates of maturity not later than the then estimated date for Closing. All costs and expenses of the Escrow Agent incurred in connection with the establishment of the Earnxxx Xxxey Escrow or the Earnxxx Xxxey Escrow Agreement shall be paid from the investment income generated by the Earnxxx Xxxey Escrowescrow agent.

Earnxxx Xxxey. Concurrently Simultaneously with the execution and delivery of this Agreement, Buyer shall deposit, in a strict joint order escrow Purchaser is depositing with Colliers Caubxx & Xo. (the "Earnxxx Xxxey EscrowEscrow Agent"), having its office at Suite 500, South Tower, 1335 Xxxxxxxxx Xxxxxx, XX, Xxxxxxx, XX 00000-0000; Xxtention: Michxxx X. Xxxxxx, xxe sum of Twenty Five Thousand and No/100 Dollars ($25,000.00) (the "First Deposit") in good funds, either by certified bank or cashier's check or by federal wire transfer. If Purchaser does not exercise the right to terminate this Agreement in accordance with Section 2.3 or Section 3.2 hereof, Purchaser shall, on or before the last date of the Inspection Period (as such term is defined in Section 3.1 hereof), deposit with the Escrow Agent the additional sum of Twenty Five Million Thousand and No/100 Dollars ($5,000,000.0025,000.00) (the "Initial Second Deposit")) in good funds, such amount to be held either by certified bank or cashier's check or by federal wire transfer as an earnxxx xxxey additional deposit hereunder under this Agreement. The Escrow Agent shall hold the First Deposit and the Second Deposit in an interest-bearing account for the benefit of Purchaser. The First Deposit and the Second Deposit, together with all interest earned on such sums, are herein referred to collectively as the "Earnxxx Xxxey." All interest accruing on such sums shall become a part of the Earnxxx Xxxey and shall be distributed as Earnxxx Xxxey in accordance with the provisions terms of a strict joint order escrow agreement in the form attached hereto as Exhibit D (the "Earnxxx Xxxey Escrow this Agreement"). If Buyer terminates this Agreement on or before the Firm Date pursuant to Section 3.06(b) hereof, the Escrow Agent shall remit the Initial Deposit to the Buyer. If the Buyer Purchaser does not terminate this Agreement on as provided in Section 3.2 hereof and thereafter fails to deliver the Second Deposit to the Escrow Agent within the time period specified above, this Agreement shall terminate automatically as of the last day of the Inspection Period, Escrow Agent shall deliver the Earnxxx Xxxey to Seller promptly thereafter and neither party shall have any further rights, obligations or before liabilities hereunder except to the Firm Dateextent that any right, (i) obligation or liability set forth herein expressly survives termination of this Agreement. If Purchaser does not terminate this Agreement and makes the Initial Second Deposit as herein provided and the transaction contemplated hereby is not consummated as herein provided for any reason other than a default by Seller hereunder or the failure of Seller to deliver title to the Property to Purchaser as herein required, the Earnxxx Xxxey shall become be non-refundable and the Buyer to Purchaser and, in such event, shall have no right to receive the Initial Deposit at any time thereafter, unless an Intentional Seller Default shall have occurred as specified in Section 8.07(a) of this Agreement, and (ii) on the Firm Date, Buyer shall deposit into the Earnxxx Xxxey Escrow with be delivered by the Escrow Agent the sum of Fifteen Million and No/100 Dollars ($15,000,000.00) (the "Additional Deposit")to Seller. If Buyer terminates this Agreement pursuant to Section 3.06(d) after the Firm Date and prior to the expiration Time is of the Due Diligence Period, essence for the Escrow Agent shall no later than two (2) Business Days after the receipt delivery of the Due Diligence Termination Notice refund the Additional Second Deposit to the Buyer and deliver the Initial Deposit to the Sellers. At the Closing, unless under this Agreement has been terminated in accordance with the terms hereof, Buyer and Sellers shall cause their respective representatives to direct the transfer of the remaining Earnxxx Xxxey in the Earnxxx Xxxey Escrow to Sellers, such amount to be applied in partial satisfaction of the obligation of Buyer with respect to the Purchase Price. All Earnxxx Xxxey deposited in the Earnxxx Xxxey Escrow shall be invested from time to time in United States government securities, commercial paper, certificates of deposit or other interest- 27 -22- bearing accounts or certificates as directed by Buyer and as reasonably approved by Sellers, in all events such investments to have dates of maturity not later than the then estimated date for Closing. All costs and expenses of the Escrow Agent incurred in connection with the establishment of the Earnxxx Xxxey Escrow or the Earnxxx Xxxey Escrow Agreement shall be paid from the investment income generated by the Earnxxx Xxxey EscrowAgreement.

Earnxxx Xxxey. (a) Concurrently with the execution of this Agreement, Buyer has deposited with State Street Bank & Trust Company, as the initial Pre-Closing Escrow Agent, under the Pre-Closing Escrow Agreement, an irrevocable letter of credit having a face amount equal to $11,350,000. The Pre-Closing Escrow Agent shall deposit, in a strict joint order escrow (hold the "Earnxxx Xxxey Escrow"(and all earnings thereon) under the terms of the Pre-Closing Escrow Agreement in trust for the benefit of the parties hereto. (b) From time to time on and after the earlier of December 15, 1999 and the LMA Commencement Date, Buyer will deliver to the Pre-Closing Escrow Agent one or more letters of credit (each in form and substance reasonably acceptable to Sellers), and/or deposit cash with the Pre-Closing Escrow Agent the sum of Five Million and No/100 Dollars ($5,000,000.00) (the "Initial Deposit")Agent, such amount to be held as an earnxxx xxxey deposit hereunder in accordance with by the provisions of a strict joint order escrow agreement in Pre-Closing Escrow Agent pursuant to the form attached hereto as Exhibit D (the "Earnxxx Xxxey Pre-Closing Escrow Agreement"). If Buyer terminates this Agreement on or before the Firm Date pursuant to Section 3.06(b) hereof, the Escrow Agent shall remit the Initial Deposit to the Buyer. If the Buyer does not terminate this Agreement on or before the Firm Date, (i) the Initial Deposit shall become non-refundable and the Buyer shall have no right to receive the Initial Deposit such that at any time thereafter, unless an Intentional Seller Default shall have occurred as specified in Section 8.07(a) of this Agreement, and (ii) on the Firm Date, Buyer shall deposit into all times the Earnxxx Xxxey Escrow with the Escrow Agent the sum of Fifteen Million and No/100 Dollars ($15,000,000.00) (the "Additional Deposit"). If Buyer terminates this Agreement pursuant to Section 3.06(d) after the Firm Date and prior to the expiration of the Due Diligence Period, the Escrow Agent shall no later than two (2) Business Days after the receipt of the Due Diligence Termination Notice refund the Additional Deposit to the Buyer and deliver the Initial Deposit to the Sellers. At the Closing, unless this Agreement has been terminated in accordance with the terms hereof, Buyer and Sellers shall cause their respective representatives to direct the transfer of the remaining Earnxxx Xxxey in the Earnxxx Xxxey Escrow to Sellers, such amount to be applied in partial satisfaction of the obligation of Buyer with respect to the Purchase Price. All Earnxxx Xxxey deposited in the Earnxxx Xxxey Escrow shall be invested from time to time in United States government securities, commercial paper, certificates of deposit or other interest- 27 -22- bearing accounts or certificates as directed by Buyer and as reasonably approved by Sellers, in all events such investments to have dates of maturity Amount is not later less than the then estimated date for Closing. All costs and expenses of the Escrow Agent incurred in connection with the establishment amount of the Earnxxx Xxxey Requirement then in effect. No such letter of credit or cash will be deemed to have been delivered to or deposited with the Pre-Closing Escrow Agent unless and until Buyer, Continuity and the Pre-Closing Escrow Agent have executed and delivered an amendment or supplement to the Pre-Closing Escrow Agreement in form and substance reasonably satisfactory to Sellers and Buyer setting forth the procedures for the holding and disposition of such letter of credit (and the proceeds of any drawing thereunder and the investment earnings on any such proceeds) and/or such cash and the investment earnings thereon (and Continuity agrees to execute and deliver any such amendment or supplement that is reasonably satisfactory in form and substance to Sellers). Notwithstanding this Section 2.4(b), if this Agreement is terminated and there is a dispute as to which party(ies) is entitled to the Earnxxx Xxxey, then (i) if the Earnxxx Xxxey Escrow Agreement Amount is greater than the Seller's Liquidated Damages Amount then Buyer shall be paid entitled to a return of cash from the investment income generated by account set up to hold the Earnxxx Xxxey Escrow(or a reduction of any letter of credit outstanding in such account) such that the Earnxxx Xxxey Amount and the Seller's Liquidated Damages Amount are equal, or (ii) if the Seller's Liquidated Damages Amount is greater than the Earnxxx Xxxey Amount then Buyer shall be required to pay cash into the account set up to hold the Earnxxx Xxxey (or to increase any letter of credit outstanding in such account) such that the Earnxxx Xxxey Amount and the Seller's Liquidated Damages Amount are equal. (c) If the Closing does not occur, the Earnxxx Xxxey (and all earnings thereon) shall be delivered to Connoisseur Sellers or returned to Buyer, in accordance with Section 11.2. If the Closing does occur, the Earnxxx Xxxey (and all earnings thereon) shall be delivered to Buyer as provided in Section 2.5.

Earnxxx Xxxey. Concurrently (a) Simultaneously with the execution and delivery of this Agreement, Purchaser is depositing with Chicago Title Insurance Company ("Escrow Agent"), having an office at 1601 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Xxtention: Adrixxxx Xxxxxxx, xxe sum of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) (the "First Deposit") in good funds, either by certified bank or cashier's check or by federal wire transfer. If Purchaser does not exercise the right to terminate this Agreement in accordance with Section 2.3 or Section 3.2 hereof, Purchaser shall, on or before the last date of the Inspection Period (as such term is defined in Section 3.1 hereof), deposit with the Escrow Agent the additional sum of Two Hundred Fifty Thousand and No/100 Dollars ($250,000) (the "Second Deposit") in good funds, either by certified bank or cashier's check or by federal wire transfer as an additional deposit under this Agreement. Escrow Agent shall hold the First Deposit and Second Deposit in an interest-bearing account in accordance with the terms and conditions of an escrow agreement entered into among Seller, Purchaser and Escrow Agent simultaneously with the execution of this Agreement. The First Deposit and Second Deposit, Buyer shall deposittogether with all interest earned on such sums, in a strict joint order escrow (are herein referred to collectively as the "Earnxxx Xxxey Escrow") with the Escrow Agent the Ernexx Xxxey." All interest accruing on such sum of Five Million and No/100 Dollars ($5,000,000.00) (the "Initial Deposit"), such amount to be held as an earnxxx xxxey deposit hereunder in accordance with the provisions of a strict joint order escrow agreement in the form attached hereto as Exhibit D (the "Earnxxx Xxxey Escrow Agreement"). If Buyer terminates this Agreement on or before the Firm Date pursuant to Section 3.06(b) hereof, the Escrow Agent shall remit the Initial Deposit to the Buyer. If the Buyer does not terminate this Agreement on or before the Firm Date, (i) the Initial Deposit shall become non-refundable and the Buyer shall have no right to receive the Initial Deposit at any time thereafter, unless an Intentional Seller Default shall have occurred as specified in Section 8.07(a) a part of this Agreement, and (ii) on the Firm Date, Buyer shall deposit into the Earnxxx Xxxey Escrow with the Escrow Agent the sum of Fifteen Million and No/100 Dollars ($15,000,000.00) (the "Additional Deposit"). If Buyer terminates this Agreement pursuant to Section 3.06(d) after the Firm Date and prior to the expiration of the Due Diligence Period, the Escrow Agent shall no later than two (2) Business Days after the receipt of the Due Diligence Termination Notice refund the Additional Deposit to the Buyer and deliver the Initial Deposit to the Sellers. At the Closing, unless this Agreement has been terminated be distributed as Earnxxx Xxxey in accordance with the terms hereofof this Agreement. (b) If Purchaser does not exercise its termination rights under Sections 2.3 and 3.2 and Purchaser fails to deliver the Second Deposit to the Escrow Agent within the time period specified above, Buyer and Sellers this Agreement shall cause their respective representatives to direct terminate automatically on the transfer last day of the remaining Earnxxx Xxxey in Inspection Period, Escrow Agent shall deliver the Earnxxx Xxxey Escrow to SellersSeller promptly thereafter and neither party shall have any further rights, such amount obligations or liabilities hereunder except to be applied in partial satisfaction the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. Time is of the obligation essence for the delivery of Buyer with respect to the Purchase Price. All Earnxxx Xxxey deposited in the Earnxxx Xxxey Escrow shall be invested from time to time in United States government securities, commercial paper, certificates of deposit or other interest- 27 -22- bearing accounts or certificates as directed by Buyer and as reasonably approved by Sellers, in all events such investments to have dates of maturity not later than the then estimated date for Closing. All costs and expenses of the Escrow Agent incurred in connection with the establishment of the Earnxxx Xxxey Escrow or the Earnxxx Xxxey Escrow Agreement shall be paid from the investment income generated by the Earnxxx Xxxey Escrowunder this Agreement.