Common use of Post-Closing Escrow Clause in Contracts

Post-Closing Escrow. As used herein, the term "Costs Savings" shall mean the documented and approved (by the Acquirer and Contributor in their good faith reasonable judgment) amounts by which the total actual "Development Expenses" incurred as of Closing in connection with the Project is less than the total "Development Budget" for work completed as of Closing (as those terms are defined in that certain Hotel Development Agreement dated February 28, 2002, as amended by a First Amendment to Hotel Development Agreement dated as of July 1, 2003 (the "Hotel Development Agreement"), between Stormont Hospitality Group, LLC (the "Developer") and the Partnership). In the event that the Acquirer elects to pay off the Project Loan prior to Project Close-Out (as defined below), then the Acquirer agrees to fund into an escrow account (the "Escrow") an amount equal to the difference between (a) $27,750,000, and (b) the actual principal amount of the Project Loan which is paid off at Closing. The Escrow shall be held by Acquirer until Project Close-Out occurs. The Developer shall be entitled to request and receive from the Escrow monthly disbursements of funds in accordance with the draw procedures set forth in the Hotel Development Agreement to pay actual Development Expenses incurred which are shown on the Development Budget but which were not paid or payable prior to Closing. If the Escrow is established as provided above, then upon the occurrence of Project Close-Out, if Costs Savings exist, any amounts remaining in the Escrow shall be distributed as follows within five (5) business days after Project Close-Out: (i) 80% shall be distributed in cash in the following order: first to the Acquirer up to the amount of any "Operating Losses" (as defined below) that have been incurred (such amount being referred to herein as the "Operating Loss Off-Set Amount"), and the remaining portion, if any, to the Contributor (or its designee), and (ii) 20% to the Stormont Limited Partner. If the amount distributed to the Contributor (or its designee) from the Escrow is insufficient to pay the Contributor (or its designee) 80% of the Cost Savings (less the Operating Loss Off-Set Amount), then the Acquirer shall pay such insufficient amount to the Contributor (or its designee) in cash within five (5) business days after Project Close-Out occurs. The Acquirer acknowledges that BCC or its affiliate has posted with the Project Lender a $1,000,000 certificate of deposit (the "CD"), which is being held by the Project Lender as collateral for the Project Loan. The Acquirer, the Contributor and BCC hereby agree to use commercially reasonable efforts to have the then-current balance of the CD released by the Project Lender to BCC (or its designee) at Closing. In the event the Project Lender draws on any portion of the CD prior to Closing to cover Operating Losses (as defined below), then the remaining balance of the CD being held by the Project Lender will be released to BCC at Closing. The difference, if any, between $1,000,000 and the amount of the CD that is actually released to BCC by the Project Lender is hereinafter referred to as the "CD Make-Up Amount". The Acquirer shall pay to BCC the CD Make-Up Amount within five (5) business days after Project Close-Out (as defined below). The term "Operating Losses" shall mean the amount by which the operating expenses (including the payment of any debt service on the Project Loan) for the Project exceed the gross revenues generated by the Project during the period of time from the date the Project is open to the public for paying overnight guests through the Closing Date.

Post-Closing Escrow. As used herein, At the term "Costs Savings" shall mean the documented and approved (by Closing when the Acquirer and Contributor in their good faith reasonable judgment) amounts by which the total actual "Development Expenses" incurred as of Closing in connection with the Project is less than the total "Development Budget" for work completed as of Closing (as those terms are defined in that certain Hotel Development Agreement dated February 28, 2002, as amended by a First Amendment to Hotel Development Agreement dated as of July 1, 2003 (the "Hotel Development Agreement"), between Stormont Hospitality Group, LLC (the "Developer") and the Partnership). In the event that the Acquirer elects to pay pays off the Project Loan prior to Project Close-Out (as defined below)Loan, then the Acquirer agrees to fund into an escrow account (the "Escrow") an amount equal to the difference between (a) $27,750,00017,500,000, and (b) the actual principal amount of the Project Loan which is paid off at Closing. The Escrow shall be held by Acquirer until "Project Close-Out Out" (as defined below) occurs. As used herein, the term "Project Close-Out" shall mean the point in time when all of the following have occurred (collectively, the "Project Close-Out"): (a) all of the conditions have been satisfied in order for "Placement in Service" to occur under Section 5.2.2 of the Development Agreement dated as of December 23, 2002 (the "Development Agreement") between the Company and Armada/Xxxxxxx Development Company, L.L.C. (the "Developer"), and (b) any and all disputes with the Developer, the General Contractor (as defined in the Development Agreement), and all other contractors and subcontractor relating to the construction and development of the Project have been settled and final payments of the "Development Fee" and all other costs and expenses shown on the current "Approved Budget" (as those terms are defined in the Development Agreement) have been paid (including any retainage amounts). The Developer shall be entitled to request and receive from the Escrow monthly disbursements of funds in accordance (upon complying with the Project Loan draw procedures set forth in the Hotel Development Agreement Agreement) in order to pay actual Development Expenses development costs and expenses incurred which are shown on the Development current Approved Budget but which were not paid or payable prior to Closing. If the Escrow is established as provided above, then upon the occurrence of Once Project Close-OutOut has occurred, if Costs Savings existthe total costs and expenses that were incurred in order for Project Close-Out to occur is less than the total costs and expense shown on the current Approved Budget (such difference being hereinafter referred to as the "Cost Savings"), any amounts remaining in then the Acquirer agrees to cause the Company to pay to the Contributor from the Escrow shall be distributed as follows 50% of the Cost Savings within five thirty (530) business days after Project Close-Out: (i) 80% shall be distributed in cash in the following order: first to the Acquirer up to the amount of any "Operating Losses" (as defined below) that have been incurred (such amount being referred to herein as the "Operating Loss Off-Set Amount"), and the remaining portion, if any, to the Contributor (or its designee), and (ii) 20% to the Stormont Limited PartnerOut occurs. If the amount distributed available in the Escrow for distribution to the Contributor (or its designee) from the Escrow is insufficient to pay the Contributor (or its designee) 8050% of the Cost Savings (less the Operating Loss Off-Set Amount)Savings, then the Acquirer shall pay such insufficient amount to the Contributor (in the form of Units provided the Contributor continues to be an accredited investor at such time, or its designee) in cash if the Contributor is not an accredited investor at such time) within five thirty (530) business days after Project Close-Out occurs. The Acquirer acknowledges that BCC or its affiliate has posted with the Project Lender a $1,000,000 certificate of deposit (the "CD"), which is being held by the Project Lender as collateral for the Project Loan. The Acquirer, the Contributor and BCC hereby agree to use commercially reasonable efforts to have the then-current balance of the CD released by the Project Lender to BCC (or its designee) at Closing. In the event the Project Lender draws on any portion of the CD prior to Closing to cover Operating Losses (as defined below), then the remaining balance of the CD being held by the Project Lender will be released to BCC at Closing. The difference, if any, between $1,000,000 and the amount of the CD that is actually released to BCC by the Project Lender is hereinafter referred to as the "CD Make-Up Amount". The Acquirer shall pay to BCC the CD Make-Up Amount within five (5) business days after Project Close-Out (as defined below). The term "Operating Losses" shall mean the amount by which the operating expenses (including the payment of any debt service on the Project Loan) for the Project exceed the gross revenues generated by the Project during the period of time from the date the Project is open to the public for paying overnight guests through the Closing Date.

Post-Closing Escrow. As used herein, At the term "Costs Savings" shall mean the documented and approved (by Closing when the Acquirer and Contributor in their good faith reasonable judgment) amounts by which the total actual "Development Expenses" incurred as of Closing in connection with the Project is less than the total "Development Budget" for work completed as of Closing (as those terms are defined in that certain Hotel Development Agreement dated February 28, 2002, as amended by a First Amendment to Hotel Development Agreement dated as of July 1, 2003 (the "Hotel Development Agreement"), between Stormont Hospitality Group, LLC (the "Developer") and the Partnership). In the event that the Acquirer elects to pay pays off the Project Loan prior to Project Close-Out (as defined below)Loan, then the Acquirer agrees to fund into an escrow account (the "Escrow") an amount equal to the difference between (a) $27,750,00017,500,000, and (b) the actual principal amount of the Project Loan which is paid off at Closing. The Escrow shall be held by Acquirer until "Project Close-Out occursOut" (as defined below) occurs As used herein, the term "Project Close-Out" shall mean the point in time when all of the following have occurred (collectively, the "Project Close-Out"): (a) all of the conditions have been satisfied in order for "Placement in Service" to occur under Section 5.2.2 of the Development Agreement dated as of December 23, 2002 (the "Development Agreement") between the Company and Armada/Xxxxxxx Development Company, L.L.C. (the "Developer"), and (b) any and all disputes with the Developer, the General Contractor (as defined in the Development Agreement), and all other contractors and subcontractor relating to the construction and development of the Project have been settled and final payments of the "Development Fee" and all other costs and expenses shown on the current "Approved Budget" (as those terms are defined in the Development Agreement) have been paid (including any retainage amounts). The Developer shall be entitled to request and receive from the Escrow monthly disbursements of funds in accordance (upon complying with the Project Loan draw procedures set forth in the Hotel Development Agreement Agreement) in order to pay actual Development Expenses development costs and expenses incurred which are shown on the Development current Approved Budget but which were not paid or payable prior to Closing. If the Escrow is established as provided above, then upon the occurrence of Once Project Close-OutOut has occurred, if Costs Savings existthe total costs and expenses that were incurred in order for Project Close-Out to occur is less than the total costs and expense shown on the current Approved Budget (such difference being hereinafter referred to as the "Cost Savings"), any amounts remaining in then the Acquirer agrees to cause the Company to pay to the Contributor from the Escrow shall be distributed as follows 50% of the Cost Savings within five thirty (530) business days after Project Close-Out: (i) 80% shall be distributed in cash in the following order: first to the Acquirer up to the amount of any "Operating Losses" (as defined below) that have been incurred (such amount being referred to herein as the "Operating Loss Off-Set Amount"), and the remaining portion, if any, to the Contributor (or its designee), and (ii) 20% to the Stormont Limited PartnerOut occurs. If the amount distributed available in the Escrow for distribution to the Contributor (or its designee) from the Escrow is insufficient to pay the Contributor (or its designee) 8050% of the Cost Savings (less the Operating Loss Off-Set Amount)Savings, then the Acquirer shall pay such insufficient amount to the Contributor (in the form of Units provided the Contributor continues to be an accredited investor at such time, or its designee) in cash if the Contributor is not an accredited investor at such time) within five thirty (530) business days after Project Close-Out occurs. The Acquirer acknowledges that BCC or its affiliate has posted with the Project Lender a $1,000,000 certificate of deposit (the "CD"), which is being held by the Project Lender as collateral for the Project Loan. The Acquirer, the Contributor and BCC hereby agree to use commercially reasonable efforts to have the then-current balance of the CD released by the Project Lender to BCC (or its designee) at Closing. In the event the Project Lender draws on any portion of the CD prior to Closing to cover Operating Losses (as defined below), then the remaining balance of the CD being held by the Project Lender will be released to BCC at Closing. The difference, if any, between $1,000,000 and the amount of the CD that is actually released to BCC by the Project Lender is hereinafter referred to as the "CD Make-Up Amount". The Acquirer shall pay to BCC the CD Make-Up Amount within five (5) business days after Project Close-Out (as defined below). The term "Operating Losses" shall mean the amount by which the operating expenses (including the payment of any debt service on the Project Loan) for the Project exceed the gross revenues generated by the Project during the period of time from the date the Project is open to the public for paying overnight guests through the Closing Date.

Post-Closing Escrow. As used hereinAt the Closing, the term "Costs Savings" Xxxxxxx Money Deposit shall mean be deemed converted to the documented and approved (by Post-Closing Escrow. The funds held in the Acquirer and Contributor in their good faith reasonable judgment) amounts by which the total actual "Development Expenses" incurred as of Post-Closing in connection with the Project is less than the total "Development Budget" for work completed as of Closing (as those terms are defined in that certain Hotel Development Agreement dated February 28, 2002Escrow shall be turned over to Seller, as amended by a First Amendment to Hotel Development Agreement dated as of July 1, 2003 (the "Hotel Development Agreement"), between Stormont Hospitality Group, LLC (the "Developer") and the Partnership). In the event that the Acquirer elects to pay off the Project Loan prior to Project Close-Out (as defined below), then the Acquirer agrees to fund into an escrow account (the "Escrow") an amount equal to the difference between follows: (a) $27,750,000, and One-half (1/2) on the ninetieth (90th) day after the Closing; (b) The remaining one-half (1/2) on the actual principal amount of one-hundred eightieth (180th) day after the Project Loan which is paid off at Closing. The ; (c) All funds held in the Post-Closing Escrow shall will be held by Acquirer until Project Close-Out occurs. The Developer shall be entitled turned over to request and receive from the Escrow monthly disbursements of funds Seller in accordance with the draw procedures set forth foregoing provisions, except that, should any current customer of the Seller chargeback, attempt to recover expenses from, or bring a cause of action against Buyer in connection with Seller's "Signature" accounts or other accounts, which were existing or could have been brought as of the Closing Date, said chargeback, claims for expenses and causes of actions may be satisfied from and up to the extent of the Post-Closing Escrow; (d) In the event of any customer's return of Seller's inventory (in such customer's possession as of the Closing Date) to the Buyer in connection with or related to any asserted chargebacks, claims for expenses or causes of action as referenced in the Hotel Development Agreement foregoing provisions, Buyer shall remain obligated to pay actual Development Expenses incurred which are shown on deliver such returned inventory to the Development Budget but which were not paid Seller, whether in salable or payable non-salable condition, prior to Closing. If satisfying any such asserted chargebacks, claims for expenses or causes of action from the Escrow is established funds in the Post-Closing Escrow; (e) Upon the commencement of any chargeback claim for expenses, or cause of action as provided described above, all funds then upon the occurrence of Project Close-Out, if Costs Savings exist, any amounts remaining in the Post-Closing Escrow shall remain therein and be distributed held pending the resolution or disposition of said chargeback, claim for expenses or cause of action; provided, however, if all asserted chargebacks, claims for expenses, or causes of action as follows within five described above raised in the first ninety (590) business days after Project Close-Out: the Closing are resolved or disposed of during the 180 days after the Closing in an amount less than $75,000, the balance of the funds remaining to cover the first ninety (i90) 80% days after the Closing shall be distributed in cash released and turned over to the Seller/; (f) Buyer specifically further acknowledges and agrees that in the following order: first event of a default of this Agreement by Seller after the Closing Date, the damages to be awarded to Buyer shall be limited to the Acquirer up funds remaining in the Post-Closing Escrow and Buyer shall -------- 1. By way of example and not by limitation, if a chargeback or return in accordance with Article III, Section 7(c) in the amount of $25,000 were asserted against Buyer on the 30th day after Closing and honored by the Buyer on the 60th day after Closing, provided no further chargeback, claim, or action is brought in the remaining 30 days after Closing, $50,000 would be released and turned over to Seller from the Post-Closing Escrow. have no further recourse against the Seller, any of its related Debtor companies, Reorganized Model, the Debtors' Bankruptcy Estates or Quality King Distributors, Inc. in connection with any asserted chargeback claim for expenses, causes of action or other claim on account of or by a customer of Seller or on Buyer's own behalf in excess of the funds remaining in the Post-Closing Escrow; and (g) Seller specifically further acknowledges and agrees that in the event of a default of this Agreement by Buyer prior to or at the Closing Date, including without limitation, the failure to pay Seller the balance of the Purchase Price, the damages to be awarded Seller shall be limited to the amount of any "Operating Losses" (as defined below) that have been incurred (such amount being referred to herein as the "Operating Loss Off-Set Amount"), and the remaining portion, if any, to the Contributor (or its designee), and (ii) 20% to the Stormont Limited Partner. If the amount distributed to the Contributor (or its designee) from the Escrow is insufficient to pay the Contributor (or its designee) 80% of the Cost Savings (less the Operating Loss Off-Set Amount), then the Acquirer shall pay such insufficient amount to the Contributor (or its designee) in cash within five (5) business days after Project Close-Out occurs. The Acquirer acknowledges that BCC or its affiliate has posted with the Project Lender a $1,000,000 certificate of deposit (the "CD"), which is being held by the Project Lender as collateral for the Project Loan. The Acquirer, the Contributor and BCC hereby agree to use commercially reasonable efforts to have the then-current balance of the CD released by the Project Lender to BCC (or its designee) at Closing. In the event the Project Lender draws on any portion of the CD prior to Closing to cover Operating Losses (as defined below), then the remaining balance of the CD being held by the Project Lender will be released to BCC at Closing. The difference, if any, between $1,000,000 and the amount of the CD that is actually released to BCC by the Project Lender is hereinafter referred to as the "CD Make-Up Amount". The Acquirer shall pay to BCC the CD Make-Up Amount within five (5) business days after Project Close-Out (as defined below). The term "Operating Losses" shall mean the amount by which the operating expenses (including the payment of any debt service on the Project Loan) for the Project exceed the gross revenues generated by the Project during the period of time from the date the Project is open to the public for paying overnight guests through the Closing DateXxxxxxx Money Deposit.