Release of Escrow Funds The Escrow Funds shall be paid by the Escrow Agent in accordance with the following:
(a) In the event that the Company advises the Escrow Agent in writing that the Offering has been terminated (the “Termination Notice”), the Escrow Agent shall promptly return the funds paid by each Investor to such Investor without interest or offset.
(b) At each Closing, the Company and the Placement Agent shall provide the Escrow Agent with written instructions regarding the disbursement of the Escrow Funds in accordance with Exhibit A attached hereto and made a part hereof and signed by the Company and the Placement Agent (the “Disbursement Instructions”).
(c) If by 5:00 P.M. Eastern time on the Final Termination Date, the Escrow Agent has not received written Disbursement Instructions from the Company and Placement Agent regarding the disbursement of the Escrow Funds in the Escrow Account, if any, then the Escrow Agent shall promptly return such Escrow Funds, if any, to the Investors without interest or offset. The Escrow Funds returned to the Investors shall be free and clear of any and all claims of the Escrow Agent.
(d) The Escrow Agent shall not be required to pay any uncollected funds or any funds that are not available for withdrawal.
(e) The Placement Agent or the Company will provide the Escrow Agent with the payment instructions for each Investor, to whom the funds should be returned in accordance with this section.
(f) In the event that Escrow Agent makes any payment to any other party pursuant to this Escrow Agreement and for any reason such payment (or any portion thereof) is required to be returned to the Escrow Account or another party or is subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a receiver, trustee or other party under any bankruptcy or insolvency law, other federal or state law, common law or equitable doctrine, then the recipient party shall repay to the Escrow Agent upon written request the amount so paid to it.
(g) The Escrow Agent shall, in its sole discretion, comply with judgments or orders issued or process entered by any court with respect to the Escrow Amount, including without limitation any attachment, levy or garnishment, without any obligation to determine such court's jurisdiction in the matter and in accordance with its normal business practices. If the Escrow Agent complies with any such judgment, order or process, then it shall not be liable to any of the Parties or any other person by reason of such compliance, regardless of the final disposition of any such judgment, order or process.
(h) Each Party understands and agrees that Escrow Agent shall have no obligation or duty to act upon a written direction delivered to Escrow Agent for the disbursement of all or part of the Escrow Amount under this Agreement (a “Written Direction”) if such Written Direction is not
(i) in writing,
(ii) signed by representatives of both Parties listed in Schedule II to this Agreement, in each case, each such individual an “Authorized Representative” of such Party), and
(iii) delivered to, and able to be authenticated by, Escrow Agent in accordance with Section 1.4 below.
(i) Upon request by any Party, the Escrow Agent set up each Party with on-line access to the account(s) established pursuant to this Agreement, which each Party can use to view and verify transaction on such account(s).
(j) A Party may specify in a Written Direction whether such Escrow Amount shall be disbursed by way of wire transfer or check. If the written notice for the disbursement of funds does not so specify the disbursement means, Escrow Agent may disburse the Escrow Amount by wire transfer.
Release of Escrow Subject to the provisions of Section 4.2, the Escrow Agent shall release the Company Documents and Subscriber Documents as follows:
(a) On the Closing Date, the Escrow Agent will simultaneously release the Company Documents to the Subscriber and release the Subscriber Documents to the Company except that the Due Diligence Fee will be released to the Due Diligence Fee Recipient and the Legal Fees will be released to the Subscriber’s attorneys.
(b) All funds to be delivered to the Company shall be delivered on the Closing Date pursuant to the wire instructions to be provided in writing by the Company to the Escrow Agent.
(c) Notwithstanding the above, upon receipt by the Escrow Agent of joint written instructions ("Joint Instructions") signed by the Company and the Subscriber, it shall deliver the Company Documents and Subscriber Documents in accordance with the terms of the Joint Instructions.
(d) Notwithstanding the above, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a "Court Order"), the Escrow Agent shall deliver the Company Documents and Subscriber Documents in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable.
Partial Release After the First Open Defeasance Date and prior to the First Open Payment Date, and provided no Event of Default exists, Borrower may from time to time obtain a partial release (a “Partial Release”) from the lien of the Mortgage and the Loan Documents of up to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto (each such individual Mortgaged Property to be released, a “Partial Release Property”), provided that all of the following conditions precedent have been satisfied with respect to any such Partial Release of any such Partial Release Property:
(a) No Partial Release of a Partial Release Property will be permitted until after the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release of the Partial Release Property will be permitted on or after the First Open Payment Date. No more than two Partial Release Properties may be released during the term of the Loan.
(b) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the Debt Service Coverage Ratio for the remainder of the Mortgaged Property (i.e., exclusive of any income from the Partial Release Property) is and shall continue to be equal to or greater than the greater of (i) the Debt Service Coverage Ratio for the Mortgaged Property calculated immediately prior to the Partial Release (i.e., inclusive of the income from the Partial Release Property), and (ii) 1.30:1.00. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth on Schedule 2.17.
(c) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the value of the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lender, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior to the Partial Release, less the allocated loan amount for the Partial Release Property) which is the lesser of (i) 75% and (ii) the loan-to-value ratio for the Mortgaged Property (inclusive of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower.
(e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance.
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security interest in the remainder of the Mortgaged Property.
(g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Property pursuant to documentation reasonably satisfactory to Lender.
(h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Property, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained herein, and all other reasonable out-of-pocket costs, fees, and expenses incurred by Lender in connection with the requested release of the Partial Release Property.
(j) Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Release, including, but not limited to, the preparation, negotiation and review of any and all materials required to be provided in connection therewith (including Lender’s reasonable attorneys’ fees and expenses).
Partial Releases (a) At any time prior to the Maturity Date, Administrative Agent shall, at the Borrower's request, issue partial releases from the Lien of a Mortgage and other Security Documents of Land Held for Development, Lots Under Development, one or more Housing Units, one or more Finished Lots or other Collateral; provided, however, that prior to or simultaneously with each such partial release all of the following conditions shall be satisfied:
(i) the sales price for any sale, transfer or conveyance must be at the Fair Market Value for such Collateral;
(ii) [intentionally omitted];
(iii) if Collateral constituting more than 10% of the Borrowing Base in the Borrowing Base Certificate most recently delivered is to be released from the Mortgages in any month, Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate demonstrating on a pro forma basis, and the Administrative Agent shall have determined to its reasonable satisfaction, that the outstanding principal balance of the Loans together with the aggregate amount of all Letter of Credit Liabilities will not exceed the Maximum Loan Availability after giving effect to such request and any Release Consideration to be paid and/or the acceptance of any Property as an additional or replacement Borrowing Base Property to be given concurrently with such request;
(iv) the Borrower requests in writing to the Administrative Agent a payoff letter for the Collateral it seeks to release from the Mortgage not less than three (3) Business Days prior to the date such payoff is needed, together with all data reasonably necessary to support the Borrower’s being entitled to the partial release, including, without limitation, a legal description for the Collateral to be released and a partial release document prepared by the Borrower, all at the Borrower’s expense and all in form and content satisfactory to the Administrative Agent;
(v) the Borrower shall submit to the Administrative Agent within five (5) Business Days after the closing of the sale, a photocopy of the final signed closing statement with respect to the sale of such Collateral, it being understood that the Borrower’s failure to submit a closing statement within such time period shall not constitute a Default hereunder;
(vi) the Borrower shall pay all costs and expenses of the Administrative Agent, including, without limitation, reasonable legal fees and expenses incurred by the Administrative Agent in connection with any partial release of the Mortgage;
(vii) the Borrower pays, or causes to be paid, to the Administrative Agent the Release Consideration for any Collateral to be released from the Mortgages under this Section 4.2(a), which Release Consideration shall be applied to payment of any outstanding Revolving Loans hereunder, and to the extent no Revolving Loans are outstanding or if following payment of outstanding Revolving Loans additional funds remain, such Release Consideration shall be returned to the Borrower within one (1) Business Day of receipt of such proceeds by the Administrative Agent; and
(viii) no monetary Default, material non-monetary Default or Event of Default exists. Notwithstanding the provisions of Section 4.2(a)(viii), during the existence of an Event of Default, provided that (i) the conditions set forth in Sections 4.2(a)(i) through (a)(vi) are satisfied, and (ii) Borrower pays, or causes to be paid, to the Administrative Agent the Release Consideration required to be paid under Section 4.2(a)(vii) (which the parties agree shall be applied in accordance with Section 11.5), then the Administrative Agent shall issue partial releases from the Lien of a Mortgage and other Security Documents for (y) the sale, transfer or conveyance by the Borrower of any Presold Housing Unit, Lots Under Development, Finished Lots or Land Held for Development pursuant to a valid, bona-fide agreement between the Borrower and a third party entered into prior to the occurrence of the applicable Event of Default, or (z) the sale, transfer or conveyance by the Borrower of any other Housing Unit, Lots Under Development, Finished Lots or Land Held for Development with the prior written consent of the Administrative Agent in its sole discretion.
(i) With respect to any Collateral other than Housing Units, upon five (5) Business Days prior written request by the Borrower, the Administrative Agent will execute all partial release documents for such Collateral other than Housing Units released from Mortgages, and (ii) with respect to any Housing Units, once per month, the Administrative Agent will execute all partial release documents for such Housing Units released from Mortgages during the preceding month, which partial release documents will be executed on the forms of release previously prepared and forwarded by the Borrower as set forth above or on such other release documentation in form and substance reasonably acceptable to the Administrative Agent and customarily used in the applicable jurisdiction.
(c) Upon request by the Borrower and without payment of any release price or Release Consideration, or other amount, the Administrative Agent shall also release land from the Lien of the Mortgages and other Security Documents or subordinate such Liens, all as necessary to effect necessary dedications of roadways or utility and service areas to Governmental Authorities or utility companies, to convey common areas to homeowners or condominium associations, and to allow the recordation of plats, easements and declarations to the extent such are common or reasonably necessary for the development of Collateral for residential purposes, and Borrower shall pay all costs and expenses of the Administrative Agent including, without limitation, reasonable legal fees incurred by the Administrative Agent in connection with any such release. Releases of Collateral from the Mortgages and other Security Documents shall not affect or impair the Lien of the Mortgages and the Administrative Agent’s Lien and security interests created by the other Loan Documents as to the Collateral and other property encumbered by the Mortgages and the other Loan Documents not theretofore released, and said Liens and security interests shall continue in full force and effect as to the Collateral and such other property not released. Except as set forth in this Section 4.2, no Collateral shall be released from the Lien of a Mortgage applicable thereto. Lenders hereby irrevocably authorize the Administrative Agent to release Collateral in accordance with this Section 4.2.
Release of Escrow Securities (1) When an emerging issuer becomes an established issuer, the release schedule for its escrow securities changes.
(2) If an emerging issuer becomes an established issuer 18 months or more after its listing date, all escrow securities will be released immediately.
(3) If an emerging issuer becomes an established issuer within 18 months after its listing date, all escrow securities that would have been released to that time, if the Issuer was an established issuer on its listing date, will be released immediately. Remaining escrow securities will be released in equal installments on the day that is 6 months, 12 months and 18 months after the listing date.
Release from Escrow (1) The Shareholder irrevocably directs the Escrow Agent to retain the Shares until the Shares are released from escrow pursuant to subsection (2) or surrendered for cancellation pursuant to section 8.
(2) The Escrow Agent shall not release the Shares from escrow unless the Escrow Agent has received a letter from the Superintendent or the Exchange consenting to the release.
(3) The approval of the Superintendent or the Exchange to a release from escrow of any of the Shares shall terminate this agreement only in respect of the Shares so released.
Waiver and Release of Claims In consideration of, and subject to, the payment to be made to me by ____________ (the “Employer”) of the "Severance Payment" and the “Prorated Target Bonus Amount” (in each case as defined in the Severance Agreement, dated as of _________, entered into between me and the Company (the "Agreement")), I hereby waive any claims I may have for employment or re-employment by the Employer or any parent or subsidiary of the Employer after the date hereof, and I further agree to and do release and forever discharge the Employer and any parent or subsidiary of the Employer, and their respective past and present officers, directors, shareholders, insurers, employees and agents from any and all claims and causes of action, known or unknown, arising out of or relating to my employment with the Employer or any parent or subsidiary of the Employer, or the termination thereof, including, but not limited to, wrongful discharge, breach of contract, tort, fraud, the Civil Rights Acts, Age Discrimination in Employment Act as amended by the Older Workers’ Benefits Protection Act, Employee Retirement Income Security Act of 1974, Americans with Disabilities Act, or any other federal, state or local legislation or common law relating to employment or discrimination in employment or otherwise; provided however, that no claim that I may have against the Employer in any capacity other than as an Employer shall be waived pursuant to this Waiver and Release. Notwithstanding the foregoing or any other provision hereof, nothing in this Waiver and Release of Claims shall adversely affect (i) my rights to ongoing Severance Benefits under the terms of the Agreement; (ii) my rights to benefits (other than severance payments or benefits) under plans, programs and arrangements of the Employer or any parent or subsidiary of the Employer; (iii) my rights to indemnification under any indemnification agreement, applicable law or the certificates of incorporation or bylaws of the Employer or any parent or subsidiary of the Employer, (iv) my rights under any director's and officers' liability insurance policy covering me, (v) my workers compensation rights, or (vi) my unemployment insurance rights. I acknowledge that I have signed this Waiver and Release of Claims voluntarily, knowingly, of my own free will and without reservation or duress, and that no promises or representations have been made to me by any person to induce me to do so other than the promise of payment set forth in the first paragraph above and the Employer’s acknowledgment of my rights reserved under the second paragraph above. I understand that this release will be deemed to be an application for benefits under the Agreement and that my entitlement thereto shall be governed by the terms and conditions of the Agreement and any applicable plan. I expressly hereby consent to such terms and conditions. I acknowledge that (i) I am waiving any rights or claims I might have under the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act (“ADEA”); (ii) I have received consideration beyond that to which I was previously entitled; (iii) I have been given forty-five (45) days to review and consider this Waiver and Release of Claims (unless I have signed a written waiver of such review and consideration period); (iv) I have had the opportunity to consult with an attorney or other advisor of my choice and have been advised by the Company to do so if I choose; and (vi) I have been separately furnished a written schedule of all persons, listed by job title and age, within the affected decisional unit who were selected and not selected for the benefits extended by this Agreement, as may be required by the ADEA. I may revoke this Waiver and Release of Claims seven days or less after its execution by providing written notice to the Employer. I acknowledge that it is my intention and the intention of the Employer in executing this Waiver and Release of Claims that the same shall be effective as a bar to each and every claim, demand and cause of action hereinabove specified. In furtherance of this intention, I hereby expressly waive any and all rights and benefits conferred upon me by the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE, to the extent applicable to me, and expressly I consent that this Waiver and Release of Claims shall be given full force and effect according to each and all of its express terms and provisions, including as well those related to unknown and unsuspected claims, demands and causes of action, if any, as well as those relating to any other claims, demands and causes of action hereinabove specified. SECTION 1542 provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." I acknowledge that I may hereafter discover claims or facts in addition to or different from those which I now know or believe to exist with respect to the subject matter of this Waiver and Release of Claims and which, if known or suspected at the time of executing this Waiver and Release of Claims, may have materially affected this settlement. Finally, I acknowledge that I have read this Waiver and Release of Claims and understand all of its terms. ____________ (the “Old Employer”) and ______________ (the “Executive”) have entered into a Severance Agreement dated ______________ (the “Agreement”). The Executive is transferring employment from the Old Employer to ____________ (the “New Employer”), effective ________. The fourth bullet of the Agreement provides that, if the Executive transfers to the Company or an Affiliate, the Old Employer shall assign the Agreement to the Company or Affiliate. To order to carry out the provisions of the fourth bullet of the Agreement –
Release of Claims Executive agrees that the foregoing consideration represents settlement in full of all outstanding obligations owed to Executive by the Company. Executive, on behalf of Executive, and Executive’s respective heirs, family members, executors and assigns, hereby fully and forever releases the Company and its past, present and future officers, agents, directors, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, parents, predecessor and successor corporations, and assigns, from, and agrees not to xxx or otherwise institute or cause to be instituted any legal or administrative proceedings concerning any claim, duty, obligation or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that Executive may possess arising from any omissions, acts or facts that have occurred up until and including the Effective Date of this Agreement including, without limitation,
(a) any and all claims relating to or arising from Executive’s employment relationship with the Company and the termination of that relationship;
(b) any and all claims relating to, or arising from, Executive’s right to purchase, or actual purchase of shares of stock of the Company, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; breach of contract, both express and implied; breach of a covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; and conversion;
(d) any and all claims for violation of any federal, state or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, The Worker Adjustment and Retraining Notification Act, the California Fair Employment and Housing Act, and Labor Code section 201, et seq. and section 970, et seq. and all amendments to each such Act as well as the regulations issued under each such Act;
(e) any and all claims for violation of the federal, or any state, constitution;
(f) any and all claims arising out of any other laws and regulations relating to employment or employment discrimination; and
(g) any and all claims for attorneys’ fees and costs. Executive agrees that the release set forth in this section shall be and remain in effect in all respects as a complete general release as to the matters released. This release does not extend to any severance obligations due Executive under the Management Retention Agreement. Nothing in this Agreement waives Executive’s rights to indemnification or any payments under any fiduciary insurance policy, if any, provided by any act or agreement of the Company, state or federal law or policy of insurance.
General Release of Claims Employee knowingly and voluntarily releases and forever discharges the Company from any and all claims, rights, causes of action, demands, fees costs, expenses, including attorneys’ fees, and liabilities of any kind whatsoever, whether known or unknown, against the Company, that Employee has, has ever had or may have as of the date of execution of this Agreement and General Release, including, but not limited to, any alleged violation of: ● The Age Discrimination in Employment Act of 1967, as amended; ● The Older Workers Benefit Protection Act of 1990; ● The National Labor Relations Act, as amended; ● Title VII of the Civil Rights Act of 1964, as amended; ● The Civil Rights Act of 1991; ● Sections 1981 through 1988 of Title 42 of the United States Code, as amended; ● The Employee Retirement Income Security Act of 1974, as amended; ● The Immigration Reform and Control Act, as amended; ● The Americans with Disabilities Act of 1990, as amended; ● The Worker Adjustment and Retraining Notification Act, as amended; ● The Occupational Safety and Health Act, as amended; ● The Family and Medical Leave Act of 1993; ● All other federal, state or local civil or human rights laws, whistleblower laws, or any other local, state or federal law, regulations and ordinances; ● All public policy, contract, tort, or common laws; and ● All allegations for costs, fees, and other expenses including attorneys’ fees incurred in these matters. Notwithstanding anything herein to the contrary, the sole matters to which the Agreement and General Release do not apply are: (i) Employee’s rights of indemnification and directors and officers liability insurance coverage to which the Executive was entitled immediately prior to __________ __, 20__ with regard to the Executive’s service as an officer and director of the Company (including, without limitation, under Article 15 of the Severance Agreement); (ii) Employee’s rights under any tax-qualified pension plan or claims for accrued vested benefits under any other employee benefit plan, policy or arrangement maintained by the Company or under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; (iii) Employee’s rights under Article 7 or Article 11 of the Severance Agreement, as the case may be; and (iv) Employee’s rights as a stockholder of the Company.
Disbursement of Escrow Funds (a) Subject to Section 3(b) and Section 10, NCPS shall promptly disburse in accordance with the Instruction Letter the liquidated value of the Escrow Funds from the Escrow Account to Issuer by wire transfer no later than one Business Day following receipt of the following documents:
(i) Minimum Offering Notice;
(ii) Subscription Accounting substantiating the fulfillment of the Minimum Offering;
(iii) Instruction Letter; and
(iv) such other certificates, notices or other documents as NCPS may reasonably require; provided that NCPS shall not be obligated to disburse the liquidated value of the Escrow Funds to Issuer if NCPS has reason to believe that (A) Cash Investment Instruments in full payment for that number of Securities equal to or greater than the Minimum Offering have not been received, deposited with and collected by NCPS, or (B) any of the information or the certifications, representations, warranties or opinions set forth in the Minimum Offering Notice, Subscription Accounting, Instruction Letter or other certificates, notices or other documents are incorrect or incomplete. After the initial disbursement of Escrow Funds to Issuer pursuant to this Section 4(a), NCPS shall promptly disburse any additional funds received with respect to the Securities to Issuer by wire transfer no later than one Business Day after NCPS receives from or on behalf of Issuer (1) Issuer’s request for closing via NCPS’s online portal and (2) Issuer’s written verification that the subscriptions therefor are in good order. Any ACH transaction must comply with all applicable laws, rules, regulations, codes and orders of applicable governmental, regulatory, judicial and law enforcement authorities and self-regulatory authorities (collectively, “Law”), including, without limitation, NACHA’s operating rules that apply to the ACH network as in effect from time to time. NCPS is not responsible for errors in the completion, accuracy or timeliness of any transfer properly initiated by NCPS in accordance with joint written instructions occasioned by the acts or omissions of any third party financial institution or a party to the transaction, or the insufficiency or lack of availability of funds on deposit in any account.
(b) No later than three Business Days after receipt from Subscriber of any required payment instructions and receipt by NCPS of written notice: (i) from Issuer Party that Issuer Party intends to reject a Subscriber’s subscription; (ii) from Issuer Party that there will be no closing of the sale of Securities to Subscribers; (iii) from any federal or state regulatory authority that any application by Issuer to conduct a banking business has been denied; or (iv) from the SEC or any other federal or state regulatory authority that a stop or similar order has been issued with respect to the Offering Document and has remained in effect for at least 20 days, NCPS shall pay to each Subscriber by the same method the amount of the Cash Investment received by NCPS from such Subscriber or promptly return to Subscriber such Subscriber’s Cash Investment Instrument; provided that amounts in excess of $25,000 will be returned via wire transfer upon confirmation by NCPS of Subscriber’s account information.
(c) Notwithstanding anything to the contrary contained herein, if NCPS shall not have received an Instruction Letter on or before the Expiration Date or the Termination Date (as defined below), subject to Section 5, NCPS shall, within three Business Days after such Expiration Date or Termination Date and receipt from Subscriber of any required payment instructions, and without any further instruction or direction from Issuer Party, pay to each Subscriber by the same method the amount of the Cash Investment received by NCPS from such Subscriber or promptly return to Subscriber such Subscriber’s Cash Investment Instrument; provided that amounts in excess of $25,000 will be returned via wire transfer upon confirmation by NCPS of Subscriber’s account information.
(d) Issuer Party shall, or cause Subscriber to, provide NCPS with information sufficient to effect such payment or return to Subscriber as outlined in this Section 4, including, without limitation, updated payment information in the event a payment or return to Subscriber for any reason cannot be made by the same method as received by NCPS.
