Common use of Purchase Price and Deposit Clause in Contracts

Purchase Price and Deposit. The purchase price to be paid by Purchaser to Seller for the Property (the “Purchase Price”) is FOURTEEN MILLION FIVE HUNDRED THOUSAND AND 00/100 Dollars ($14,500,000.00), payable in United States dollars as follows: (a) [Intentionally Omitted]. (b) By no later than 5:00 p.m. Eastern (local New York, New York) time on October 7, 2011, Purchaser shall deposit with Commonwealth Land Title Insurance Company (“Escrow Agent”) the amount of One Million and No/100 Dollars ($1,000,000.00) (together with any interest earned thereon, the “Deposit”). The Deposit shall be in the form of cash, effected by wire transfer of immediately available good funds to an account designated by Escrow Agent. If Purchaser shall fail to deposit the entire Deposit by 5:00 p.m. Eastern (local New York, New York) time on the third business day following the Effective Date, Seller may, at any time prior to Purchaser’s deposit of the Deposit, terminate this Agreement, in which event (i) the parties shall have no further rights or obligations under this Agreement, except for any obligations that expressly survive termination. The Deposit shall be non-refundable; provided, however, that the Deposit shall be refundable to Purchaser if Purchaser terminates this Agreement in accordance with the provisions of this Agreement that expressly provide for a return of the Deposit to Purchaser upon such termination. (c) [Intentionally Omitted]. (d) From and after the Effective Date of this Agreement, the provisions of this Agreement shall govern Escrow Agent’s obligations with respect to the Deposit. (i) Escrow Agent shall deliver the Deposit to Seller or to Purchaser, as the case may be, under the following conditions: (1) Upon and subject to the occurrence of the Closing, Escrow Agent shall apply the Deposit to the satisfaction of the Purchase Price; or (2) Escrow Agent shall deliver the Deposit to Seller following receipt by Escrow Agent of written demand therefor from Seller stating that Seller is entitled to the Deposit under this Agreement, or that Seller has terminated this Agreement, provided Purchaser shall not have subsequently given written notice of objection in accordance with the provisions set forth below; or (3) Subject to the terms of this Agreement, the Deposit shall be returned to Purchaser following receipt by Escrow Agent of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, in each case provided Seller shall not have given written notice of objection in accordance with the provisions set forth below; or (4) The Deposit shall be delivered to Purchaser or Seller as directed by joint written instructions of Seller and Purchaser. (ii) Upon the giving of a written demand for the Deposit by Seller or Purchaser, pursuant to Section 4(d)(i)(2) or Section 4(d)(i)(3) above, Escrow Agent shall promptly give a copy of such demand to the other party. The other party shall have the right to object to the delivery of the Deposit, by giving written notice of such objection to Escrow Agent at any time within six (6) business days after such party’s receipt of the copy of such demand from Escrow Agent, but not thereafter. Such notice shall set forth the basis (in reasonable detail) for objecting to the delivery of the Deposit. Upon receipt of such notice of objection, Escrow Agent shall promptly give a copy of such notice to the party who filed the written demand. If the Escrow Agent does not timely receive a written objection from the other party to the proposed payment, the Escrow Agent is hereby authorized to make such delivery. If Escrow Agent shall have timely received such notice of objection, Escrow Agent shall continue to hold the Deposit until (x) Escrow Agent receives joint written notice from Seller and Purchaser directing the delivery of the Deposit, in which case Escrow Agent shall then deliver the Deposit in accordance with said direction, or (y) litigation is commenced between Seller and Purchaser, in which case Escrow Agent shall place the Deposit with the clerk of the court in which said litigation is pending, or (z) Escrow Agent takes such affirmative steps as Escrow Agent may elect, at Escrow Agent’s option, in order to terminate Escrow Agent’s duties hereunder, including but not limited to depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party in such interpleader action, as determined by a final non-appealable order of such court. (iii) Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable for any damages or claims incurred by Seller or Purchaser in connection with the performance of any duties imposed upon Escrow Agent by the provisions of this Agreement, except for those resulting from Escrow Agent’s own gross negligence, willful misconduct or breach of its obligations hereunder. Escrow Agent shall have no duties or responsibilities except those set forth herein. Escrow Agent shall not be bound by any modification, cancellation or rescission of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any reasonable out-of-pocket expenses (including reasonable legal fees and disbursements of outside counsel), including all of Escrow Agent’s reasonable out-of-pocket fees and expenses with respect to any interpleader action incurred in connection with this Agreement, and such liability shall be joint and several; provided, that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement by the losing party of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to hold the Deposit and may decline to take any other action. After delivery of the Deposit in accordance herewith, Escrow Agent shall have no further liability or obligation of any kind whatsoever. (iv) Escrow Agent shall have the right at any time to resign upon thirty (30) days’ prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice from Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company licensed to do business in the State of New York and having a branch located in New York City to act as successor Escrow Agent hereunder or to place the Deposit with a court of competent jurisdiction. Upon notice from Seller and Purchaser of their appointment of a successor Escrow Agent, Escrow Agent shall deliver the Deposit to such successor Escrow Agent selected hereunder, provided such successor Escrow Agent shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of the Deposit and such assumption agreement, the successor Escrow Agent shall become the Escrow Agent for all purposes hereunder and shall have all of the rights and obligations of the Escrow Agent hereunder, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. (v) Subject to the provisions of Section 4(d)(iii), Seller and Purchaser each hereby agrees to jointly and severally indemnify, defend and hold harmless Escrow Agent from and against any and all loss, cost, damage, expense and reasonable attorneys’ fees actually incurred by Escrow Agent arising out of it acting as the Escrow Agent hereunder, other than to the extent arising from Escrow Agent’s gross negligence, willful misconduct or breach of its obligations hereunder. (vi) [Intentionally Omitted]. (vii) Escrow Agent is not a party to, and is not bound by, or charged with notice of any agreement out of which this escrow may arise, other than this Agreement. (viii) Escrow Agent is acting solely as a stakeholder and depository, and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness, or validity of the subject matter of the escrow, or for the identity or authority of any person executing or depositing it. (ix) [Intentionally Omitted]. (x) The provisions of this Section 4(d) shall survive the Closing or termination of this Agreement until the Survival Date set forth in Section 41 (Survival) hereof. (xi) Purchaser and Seller reserve the right, at any time and from time to time, to substitute a new escrow agent in place of Escrow Agent. (xii) Other than Seller and Purchaser, none of the Seller Parties or Purchaser Parties shall have any liability to Escrow Agent in connection with the performance of Section 4 of this Agreement, and Escrow Agent hereby waives any and all claims against any and all of such parties arising out of, or in any way connected with, the provisions of this Agreement to which Escrow Agent has consented, agreed and acknowledged. (e) [Intentionally Omitted]. (f) All monies payable by Purchaser under this Agreement, unless otherwise specified in this Agreement, shall be paid by Purchaser causing such monies to be wire transferred in immediately available federal funds at such bank account or accounts designated by Seller, and divided into such amounts designated by Seller as may be required to facilitate the consummation of the transactions contemplated by this Agreement. (g) As used in this Agreement, the term “business day” shall mean every day other than Saturdays, Sundays, all days observed by the federal or New York State government as legal holidays, all days on which commercial banks in New York State are required by law to be closed, and all days when because of emergencies that may arise commercial banks or New York City courts are closed. Any reference in this Agreement to a “day” or a number of “days” (other than references to a “business day” or “business days”) shall mean a calendar day or calendar days.

Purchase Price and Deposit. The (a) Subject to adjustment pursuant to the express provisions of this Agreement, the aggregate purchase price to be paid by Purchaser to Seller for the Property Properties (the “Purchase Price”) is FOURTEEN MILLION FIVE HUNDRED THOUSAND AND Five Hundred Eighty Million and 00/100 Dollars ($14,500,000.00580,000,000.00), which shall be allocated among each Property and any Personalty in accordance with Schedule 4(a), and subject to apportionment as provided in Section 7, payable in United States dollars cash. At the Closing, Purchaser shall deliver to Seller the Purchase Price as follows: (a) [Intentionally Omitted]adjusted pursuant to Sections 7 and 11. (b) By no later than 5:00 p.m. Eastern Within two (local New York, New York2) time on October 7, 2011, Purchaser shall deposit with Commonwealth Land Title Insurance Company (“Escrow Agent”) the amount of One Million and No/100 Dollars ($1,000,000.00) (together with any interest earned thereon, the “Deposit”). The Deposit shall be in the form of cash, effected by wire transfer of immediately available good funds to an account designated by Escrow Agent. If Purchaser shall fail to deposit the entire Deposit by 5:00 p.m. Eastern (local New York, New York) time on the third business day days following the Effective Date, Seller mayPurchaser shall deliver the sum of Fifteen Million and 00/100 Dollars ($15,000,000.00) (the “Deposit”) to Fidelity National Title Insurance Company, at any time prior to Purchaser’s deposit of as escrow agent (in such capacity, the Deposit, terminate this Agreement, in which “Escrow Agent”). In the event (i) the parties shall have no further rights or obligations under this Agreement, except Purchaser fails for any obligations that expressly survive termination. The Deposit shall be non-refundable; provided, however, that the Deposit shall be refundable reason to Purchaser if Purchaser terminates this Agreement in accordance with the provisions of this Agreement that expressly provide for a return of deliver the Deposit to Purchaser upon such terminationthe Escrow Agent when and as required hereunder, at Seller’s option, exercisable by notice to Purchaser, this Agreement shall terminate and be null and void, and no party shall have any further obligation to the other except for obligations which expressly survive the termination hereof. (c) [Intentionally Omitted]. (d) From The Deposit shall be held and after applied by Escrow Agent in accordance with the Effective Date of this Agreement, the provisions applicable terms and conditions of this Agreement shall govern Escrow Agent’s obligations with respect to and the Deposit.following: (i) Upon receipt by Escrow Agent of the Deposit or any portion thereof, Escrow Agent shall cause the same to be deposited into a commingled trust account and shall invest the Deposit in an interest bearing, federally insured account as directed by Purchaser and reasonably acceptable to Seller upon receipt of a Form W-9, it being agreed that Escrow Agent shall not be liable for (y) any loss of such investment (unless due to Escrow Agent’s gross negligence, willful misconduct or breach of this Agreement) or (z) any failure to attain a favorable rate of return on such investment. A Form W-9 must be completed and executed by either Purchaser or Seller, as the case may be, concurrently with the execution of this Agreement. The failure to submit to Escrow Agent an executed, completed Form W-9 shall stay Escrow Agent’s obligation to deposit the escrow in either a segregated account or an interest bearing account until such time that said form has been provided to Escrow Agent. The party providing the Form W-9 shall receive a 1099 for the interest on the Deposit regardless of which party actually receives the interest on the Deposit. Escrow Agent shall deliver the Deposit to Seller or to Purchaser, as the case may be, under the following conditions: (1) Upon and subject The Deposit shall be delivered to Seller at the occurrence of the Closing, Closing upon receipt by Escrow Agent shall apply of a statement executed by Seller and Purchaser authorizing the Deposit to the satisfaction of the Purchase Pricebe released; or (2) Escrow Agent The Deposit shall deliver the Deposit be delivered to Seller following receipt by Escrow Agent of written demand therefor from Seller stating that Seller is entitled to Purchaser has defaulted in the Deposit performance of its obligations under this Agreement, or that Seller has terminated this Agreement, provided Purchaser shall not have subsequently given written notice of objection in accordance with the provisions set forth below; or (3) Subject to the terms of this Agreement, the The Deposit shall be returned delivered to Purchaser following receipt by Escrow Agent of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, in each case provided Seller shall not have given written notice of objection in accordance with the provisions set forth below; or (4) The Deposit shall be delivered to Purchaser or Seller as directed by joint written instructions of Seller and Purchaser. (ii) Upon the giving filing of a written demand for the Deposit by Seller or Purchaser, pursuant to Section 4(d)(i)(2subsection (2) or Section 4(d)(i)(3(3) above, Escrow Agent shall promptly give notice thereof (including a copy of such demand demand) to the other party. The other party shall have the right to object to the delivery of the Deposit, by giving written notice of such objection to Escrow Agent at any time within six ten (610) business days after such party’s receipt of the copy of such demand notice from Escrow Agent, but not thereafter. Such notice shall set forth the basis (in reasonable detail) for objecting to the delivery of the Deposit. Upon receipt of such notice of objection, Escrow Agent shall promptly give a copy of such notice to the party who filed the written demand. If the Escrow Agent does not timely receive a written objection from the other party to the proposed payment, the Escrow Agent is hereby authorized to make such delivery. If Escrow Agent shall have timely received such notice of objection, then Escrow Agent shall continue to hold the Deposit Deposit, until (x) Escrow Agent receives joint written notice from Seller and Purchaser directing the delivery disbursement of the Deposit, in which case Escrow Agent shall then deliver disburse the Deposit Deposit, in accordance with said direction, or (y) litigation is commenced between Seller and Purchaser, in which case Escrow Agent shall place deposit the Deposit with the clerk of the court in which said litigation is pending, or (z) Escrow Agent takes such affirmative steps as Escrow Agent may reasonably elect, at Escrow Agent’s option, in order to terminate Escrow Agent’s duties hereunder, including but not limited to depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party in such interpleader action, as determined by a final non-appealable order of such court. (iii) Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person Person or persons Persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable for any damages or claims incurred by Seller or Purchaser in connection with the performance of any duties imposed upon Escrow Agent by the provisions of this Agreement, except for those resulting from Escrow Agent’s own gross negligence, willful misconduct or breach beach of its obligations hereunderthis Agreement. Escrow Agent shall have no duties or responsibilities except those set forth herein. Escrow Agent shall not be bound by any modification, cancellation or rescission of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any reasonable out-of-pocket expenses (including reasonable legal fees and disbursements of outside counsel), including all of Escrow Agent’s reasonable out-of-pocket fees and expenses with respect to any interpleader action incurred in connection with this Agreement, and such liability shall be joint and several; provided, that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement by the losing party of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to hold the Deposit and may decline to take any other action, unless directed in a joint written notice from Purchaser and Seller. After delivery of the Deposit in accordance herewith, Escrow Agent shall have no further liability or obligation of any kind whatsoever. (iv) Escrow Agent shall have the right at any time to resign upon thirty ten (3010) business days’ prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice from of Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company licensed to do business in the State of New York and having a branch located in New York City County to act as successor Escrow Agent hereunder or to place hereunder. At any time after the Deposit with a court of competent jurisdiction. Upon notice from Seller and Purchaser of their appointment of a successor Escrow Agentten (10) business day period, Escrow Agent shall have the right to deliver the Deposit to such any successor Escrow Agent selected hereunder, provided such successor Escrow Agent shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of the Deposit all such amounts and such assumption agreement, the successor Escrow Agent shall become the Escrow Agent for all purposes hereunder and shall have all of the rights and obligations of the Escrow Agent hereunder, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. (v) Subject to the provisions of Section 4(d)(iii), Seller and Purchaser each hereby agrees to jointly and severally (but not jointly) indemnify, defend and hold harmless Escrow Agent from and against fifty percent (50%) of any and all loss, cost, damage, expense and reasonable out-of-pocket attorneys’ fees and expenses actually incurred by Escrow Agent arising out of it acting as the Escrow Agent hereunder, other than to the extent arising from Escrow Agent’s gross negligence, willful misconduct or breach of its obligations hereunderthis Agreement. (vi) [Intentionally Omitted]The interest earned on the Deposit shall be paid to the party entitled to receive the Deposit as provided in this Agreement. Purchaser shall receive a credit against the Purchase Price with respect to any such interest paid to Seller at Closing. The party receiving such interest (including Purchaser if it receives a credit on account of same against the Purchase Price as aforesaid) shall pay any income taxes thereon. The taxpayer identification numbers of Seller and Purchaser shall be provided to Escrow Agent by such party upon request. (vii) Escrow Agent is not a party to, and is not bound by, or charged with notice of any agreement out of which this escrow may arise, other than this Agreement. (viii) Escrow Agent is acting solely as a stakeholder and depository, and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness, or validity of the subject matter of the escrow, or for the identity or authority of any person executing or depositing it. (ix) [Intentionally Omitted]. (x) The provisions of this Section 4(d4(c) shall survive the Closing or termination of this Agreement until the Survival Date set forth in Section 41 (Survival) hereofAgreement. (xid) Purchaser and Seller reserve All interest earned on the right, at any time and from time to time, to substitute a new escrow agent Deposit shall be deemed included in place of Escrow Agent. (xii) Other than Seller and Purchaser, none of the Seller Parties or Purchaser Parties shall have any liability to Escrow Agent in connection with the performance of Section 4 “Deposit” for all purposes of this Agreement, and Escrow Agent hereby waives any and all claims against any and all of such parties arising out of, or in any way connected with, the provisions of this Agreement to which Escrow Agent has consented, agreed and acknowledged. (e) [Intentionally Omitted]In the event the Closing occurs, the entire Deposit shall be applied against the Purchase Price payable at the Closing, and Purchaser shall receive a credit therefor. (f) The Deposit shall be non-refundable to Purchaser, except as expressly provided in this Agreement. The Deposit shall be applied to the Purchase Price on the Closing Date. (g) Seller and Purchaser hereby acknowledge and agree that, notwithstanding anything in this Agreement to the contrary, the sum of ONE HUNDRED DOLLARS ($100.00) of the Deposit (the “Independent Consideration”) shall be paid to Seller if this Agreement is terminated for any reason. Seller and Purchaser further acknowledge and agree that the Independent Consideration has been bargained for and agreed to as consideration for Seller’s execution and delivery of this Agreement. (h) Upon the disbursement of the Deposit to Purchaser or Seller as provided herein in connection with any termination of this Agreement, this Agreement shall be null and void, and no party shall have any further obligation to the other except for those obligations which expressly survive termination of this Agreement. (i) All monies payable by Purchaser under this Agreement, unless otherwise specified in this Agreement, shall be paid by Purchaser causing such monies to be wire transferred in immediately available federal funds at such bank account or accounts designated by Selleraccounts, and divided into such amounts amounts, designated by Seller to Purchaser in writing at least two (2) business days prior to the date such funds are required to be paid as may be required to facilitate the consummation of the transactions contemplated by this Agreement. (gj) As used in this Agreement, the term “business day” shall mean every day other than Saturdays, Sundays, all days observed by the federal or New York State government as legal holidays, holidays and all days on which commercial banks in New York State are required by law to be closed, and all days when because of emergencies that may arise commercial banks or New York City courts are closed. . (k) Any reference in this Agreement to a “day” or a number of “days” (other than references to a “business day” or “business days”) shall mean a calendar day or calendar days, provided that if the calendar day or last calendar day to perform any act or give any notice or approval shall fall on a calendar day that is not a business day, such act or notice may be timely performed or given on the next succeeding business day.

Purchase Price and Deposit. The purchase price (as the same may be adjusted pursuant to be paid by Purchaser to Seller for the Property (this Agreement, the “Purchase Price”) is FOURTEEN MILLION FIVE HUNDRED THOUSAND AND 00/100 Dollars for the Assets shall be $300,500,000.00 ($14,500,000.00), payable in United States dollars with such Purchase Price being allocated to each Property based on the Individual Values) and Purchaser shall pay or shall cause to be paid the Purchase Price as follows: (a) [Intentionally Omitted]. (b) By no 2.1 No later than 5:00 p.m. Eastern (local New York, New YorkYork City time) time on October 7, 2011the Diligence Cut-Off Date (as defined below), Purchaser shall deposit deposit, or cause to be deposited, with Commonwealth Land Fidelity National Title Insurance Company Company, as Escrowee (in such capacity, “Escrow AgentEscrowee”) ), the amount sum of One Fifteen Million and No/100 Dollars ($1,000,000.0015,000,000) (together with any all accrued interest earned thereon, the “Deposit”). The Deposit shall be in the form of cash, effected by wire transfer of immediately available good federal funds pursuant to an account designated wiring instructions provided by Escrow AgentEscrowee, to be held by Escrowee pursuant to Exhibit “B”. If Purchaser shall fail to deposit deposit, or fail to cause to be deposited, the entire Deposit in accordance with the foregoing by 5:00 p.m. Eastern (local New York, New YorkYork City time) time on the third business day following the Effective Diligence Cut-Off Date, then Seller may, at any time prior to Purchaser’s deposit of the Depositin its sole discretion, terminate this Agreement and seek liquidated damages pursuant to Section 5.1 from Purchaser, whereupon neither party shall have any further rights, obligations or liability to the other hereunder, except for liability of Purchaser under Section 5.1 which expressly survives the termination of this Agreement and any other liability which expressly survives termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, in which no event (i) shall Purchaser have the parties right to cure a default to deposit the Deposit in accordance with this Section 2.1. At Closing, subject to the procedures set forth in Article 8, Escrowee shall have no further rights or obligations under deliver the Deposit to Seller for application toward the Purchase Price. In the event that this Agreement is terminated in accordance with its terms, including, without limitation, a termination in accordance with Section 7.4, the Deposit shall be paid to the party hereto entitled to receive the Deposit in accordance with the terms of this Agreement, except . Each of Purchaser and Seller will provide to Escrowee an IRS Form W-9 for the reporting of any obligations that expressly survive terminationsuch interest income. The Deposit shall be non-refundablerefundable to Purchaser in any and all events and shall be deemed fully earned by Seller upon delivery thereof to Escrowee in consideration for Seller’s agreement to enter into this Agreement, except as otherwise expressly set forth herein. The provisions of this Section 2.1 shall survive any termination of this Agreement. 2.2 Purchaser shall have the right, at its option during the term of this Agreement, to substitute one or more letters of credit for all or any portion of the Deposit. The letter(s) of credit shall be drawn on XX Xxxxxx Xxxxx or any other financial institution reasonably acceptable to Seller and shall name Escrowee as beneficiary. The letter(s) of credit shall be in form and substance reasonably satisfactory to Purchaser and Seller and shall not impose any conditions to the drawing thereof other than a certificate from the Escrowee that Escrowee is entitled to draw upon the letter of credit pursuant to the terms of this Agreement. If any letter(s) of credit does not have an expiration date of later than October 6, 2015, then Purchaser shall renew or extend such letter(s) of credit at least fifteen (15) days prior to the expiration thereof. If Purchaser fails to deliver proper renewals or extension documentation prior to the deadline for same, then Escrowee shall draw upon the letter(s) of credit which has not been timely renewed or extended and hold the proceeds thereof as a portion of the Deposit under this Agreement. In such event, Purchaser may, at its option, again replace any portion of the cash Deposit with a letter of credit satisfying the requirements of this Agreement. Subject to Section 8.4, the letter(s) of credit shall be held by Escrowee and disbursed (i.e., drawn with funds being paid to Seller in accordance with the terms hereof or if the Deposit is due to be paid to Purchaser, returned to Purchaser) in the same fashion as the Deposit under this Agreement. Except as otherwise provided in this Agreement, the letter(s) of credit shall not be drawn upon by Escrowee until the Escrowee is otherwise authorized to deliver the Deposit to Seller pursuant to this Agreement; provided, however, that the Deposit shall be refundable to Purchaser if Purchaser terminates this Agreement notwithstanding any notice requirements in accordance with the provisions of this Agreement that expressly provide for a return of the Deposit to Purchaser upon such termination. (c) [Intentionally Omitted]. (d) From and after the Effective Date of this Agreement, Escrowee shall be entitled to draw upon any expiring letter(s) of credit which is not timely renewed or extended pursuant to the provisions terms of this Section, in which event Escrowee will hold and disburse the proceeds thereof in the manner set forth in this Agreement shall govern Escrow Agent’s obligations with respect to the Deposit. (i) Escrow Agent 2.3 The Deposit shall deliver the Deposit to Seller or to Purchaser, as the case may be, under the following conditions: (1) Upon and subject be applied to the occurrence of Purchase Price and Purchaser shall pay, or shall cause to be paid, the Closing, Escrow Agent shall apply the Deposit to the satisfaction balance of the Purchase Price; or Price (2) Escrow Agent shall deliver the Deposit “Closing Payment”), to Seller following receipt by on the Closing Date, which Closing Payment shall be deposited into Escrow Agent of written demand therefor from Seller stating that Seller is entitled to on the Deposit under this Agreement, or that Seller has terminated this Agreement, provided Purchaser shall not have subsequently given written notice of objection Escrow Closing Date in accordance with the provisions set forth below; or (3) Subject to the terms of this Agreement, the Deposit shall be returned to Purchaser following receipt by Escrow Agent of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, in each case provided Seller shall not have given written notice of objection in accordance with the provisions set forth below; or (4) The Deposit shall be delivered to Purchaser or Seller as directed by joint written instructions of Seller and PurchaserArticle 8. (ii) Upon the giving of a written demand for the Deposit by Seller or Purchaser, pursuant to Section 4(d)(i)(2) or Section 4(d)(i)(3) above, Escrow Agent shall promptly give a copy of such demand to the other party. The other party shall have the right to object to the delivery of the Deposit, by giving written notice of such objection to Escrow Agent at any time within six (6) business days after such party’s receipt of the copy of such demand from Escrow Agent, but not thereafter. Such notice shall set forth the basis (in reasonable detail) for objecting to the delivery of the Deposit. Upon receipt of such notice of objection, Escrow Agent shall promptly give a copy of such notice to the party who filed the written demand. If the Escrow Agent does not timely receive a written objection from the other party to the proposed payment, the Escrow Agent is hereby authorized to make such delivery. If Escrow Agent shall have timely received such notice of objection, Escrow Agent shall continue to hold the Deposit until (x) Escrow Agent receives joint written notice from Seller and Purchaser directing the delivery of the Deposit, in which case Escrow Agent shall then deliver the Deposit in accordance with said direction, or (y) litigation is commenced between Seller and Purchaser, in which case Escrow Agent shall place the Deposit with the clerk of the court in which said litigation is pending, or (z) Escrow Agent takes such affirmative steps as Escrow Agent may elect, at Escrow Agent’s option, in order to terminate Escrow Agent’s duties hereunder, including but not limited to depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party in such interpleader action, as determined by a final non-appealable order of such court. (iii) Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable for any damages or claims incurred by Seller or Purchaser in connection with the performance of any duties imposed upon Escrow Agent by the provisions of this Agreement, except for those resulting from Escrow Agent’s own gross negligence, willful misconduct or breach of its obligations hereunder. Escrow Agent shall have no duties or responsibilities except those set forth herein. Escrow Agent shall not be bound by any modification, cancellation or rescission of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any reasonable out-of-pocket expenses (including reasonable legal fees and disbursements of outside counsel), including all of Escrow Agent’s reasonable out-of-pocket fees and expenses with respect to any interpleader action incurred in connection with this Agreement, and such liability shall be joint and several; provided, that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement by the losing party of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to hold the Deposit and may decline to take any other action. After delivery of the Deposit in accordance herewith, Escrow Agent shall have no further liability or obligation of any kind whatsoever. (iv) Escrow Agent shall have the right at any time to resign upon thirty (30) days’ prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice from Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company licensed to do business in the State of New York and having a branch located in New York City to act as successor Escrow Agent hereunder or to place the Deposit with a court of competent jurisdiction. Upon notice from Seller and Purchaser of their appointment of a successor Escrow Agent, Escrow Agent shall deliver the Deposit to such successor Escrow Agent selected hereunder, provided such successor Escrow Agent shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of the Deposit and such assumption agreement, the successor Escrow Agent shall become the Escrow Agent for all purposes hereunder and shall have all of the rights and obligations of the Escrow Agent hereunder, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. (v) Subject to the provisions of Section 4(d)(iii), Seller and Purchaser each hereby agrees to jointly and severally indemnify, defend and hold harmless Escrow Agent from and against any and all loss, cost, damage, expense and reasonable attorneys’ fees actually incurred by Escrow Agent arising out of it acting as the Escrow Agent hereunder, other than to the extent arising from Escrow Agent’s gross negligence, willful misconduct or breach of its obligations hereunder. (vi) [Intentionally Omitted]. (vii) Escrow Agent is not a party to, and is not bound by, or charged with notice of any agreement out of which this escrow may arise, other than this Agreement. (viii) Escrow Agent is acting solely as a stakeholder and depository, and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness, or validity of the subject matter of the escrow, or for the identity or authority of any person executing or depositing it. (ix) [Intentionally Omitted]. (x) The provisions of this Section 4(d) shall survive the Closing or termination of this Agreement until the Survival Date set forth in Section 41 (Survival) hereof. (xi) Purchaser and Seller reserve the right, at any time and from time to time, to substitute a new escrow agent in place of Escrow Agent. (xii) Other than Seller and Purchaser, none of the Seller Parties or Purchaser Parties shall have any liability to Escrow Agent in connection with the performance of Section 4 of this Agreement, and Escrow Agent hereby waives any and all claims against any and all of such parties arising out of, or in any way connected with, the provisions of this Agreement to which Escrow Agent has consented, agreed and acknowledged. (e) [Intentionally Omitted]. (f) All monies payable by Purchaser under this Agreement, unless otherwise specified in this Agreement, shall be paid by Purchaser causing such monies to be wire transferred in immediately available federal funds at such bank account or accounts designated by Seller, and divided into such amounts designated by Seller as may be required to facilitate the consummation of the transactions contemplated by this Agreement. (g) As used in this Agreement, the term “business day” shall mean every day other than Saturdays, Sundays, all days observed by the federal or New York State government as legal holidays, all days on which commercial banks in New York State are required by law to be closed, and all days when because of emergencies that may arise commercial banks or New York City courts are closed. Any reference in this Agreement to a “day” or a number of “days” (other than references to a “business day” or “business days”) shall mean a calendar day or calendar days.

Purchase Price and Deposit. The purchase price to be paid by Purchaser to Seller for the Property (the “Purchase Price”) is FOURTEEN MILLION FIVE HUNDRED THOUSAND AND One Hundred Twenty Million and 00/100 Dollars ($14,500,000.00120,000,000.00), subject to apportionment as provided in Section 6, payable in United States dollars as follows: (a) [Intentionally Omitted]. (b) By no later than 5:00 p.m. Eastern ten (local New York, New York10) time on October 7, 2011business days following the mutual execution and delivery of this Agreement, Purchaser shall deposit with Commonwealth deliver Land Title Insurance Company Services USA, Inc., attention Xxxxxxxx Xxxxxx, as escrow agent (the “Escrow Agent”) an ACH transfer of immediately available federal funds in the amount of One Three Million and No/100 00/100 Dollars ($1,000,000.003,000,000.00) (together the “Initial Deposit”) to the escrow account of Escrow Agent in accordance with the ACH instructions set forth on Exhibit 1. By no later than five (5) business days after the expiration of the Due Diligence Period, in the event that Purchaser has elected to proceed with the transaction set forth herein, Purchaser shall deliver to Escrow Agent an ACH transfer of immediately available federal funds in the amount of Three Million and 00/100 Dollars ($3,000,000.00) (the “Additional Deposit” and, the Additional Deposit, collectively with the Initial Deposit and any interest earned thereonaccruing on such deposits, the “Deposit”)) to the escrow account of Escrow Agent in accordance with the ACH instructions set forth on Exhibit 1. The In the event that Purchaser fails to timely remit either installment of the Deposit, this Agreement shall terminate, the Initial Deposit shall be refunded to Purchaser, if applicable, and, except for obligations of the parties that by the express terms of this Agreement survive termination, shall be of no further force and effect. Except in the form event of cashSeller default or as otherwise provided in this Agreement, effected by wire transfer the Deposit shall be nonrefundable to Purchaser upon waiver of immediately available good funds Purchaser’s Due Diligence contingency as set forth in Section 2(b) hereof. (i) A portion of the Initial Deposit in the amount of One Thousand and 00/100 Dollars ($1,000.00) (the “Independent Consideration”) shall be earned and payable to an account designated Seller, and non-refundable to Purchaser, as independent consideration for the rights and options granted to Purchaser hereunder, including, without limitation, the right and option to inspect the Property and to terminate this Agreement for any or no reason during the Due Diligence 1 NTD – TBD, subject to completion of review of lease file and discussion of approach to tenants with modified triple net leases. Period as provided herein. The Independent Consideration may, at Seller’s request, be disbursed to or at the direction of Seller at any time following receipt thereof by Escrow Agent. If Purchaser Closing occurs, then the Independent Consideration shall fail be credited toward the Purchase Price in the same manner as the rest of the Deposit. If this Agreement is terminated prior to deposit the entire Deposit by 5:00 p.m. Eastern (local New YorkClosing for any reason, New Yorkthen, notwithstanding any other provision of this Agreement, including Section 3(a)(ii) time on the third business day following the Effective Datebelow, Seller may, at any time prior shall be entitled to Purchaser’s deposit retain the Independent Consideration. (ii) Upon receipt by Escrow Agent of the Deposit, terminate this AgreementEscrow Agent shall cause the same to be deposited into an interest bearing escrow account at a reputable bank selected by Escrow Agent, in which event it being agreed that Escrow Agent shall not be liable for (ix) the parties shall have no further rights any loss of such investment (unless due to Escrow Agent’s gross negligence, willful misconduct or obligations under this Agreement, except for any obligations that expressly survive termination. The Deposit shall be non-refundable; provided, however, that the Deposit shall be refundable to Purchaser if Purchaser terminates this Agreement in accordance with the provisions of this Agreement that expressly provide for a return of the Deposit to Purchaser upon such termination. (c) [Intentionally Omitted]. (d) From and after the Effective Date breach of this Agreement, the provisions ) or (y) any failure to attain a favorable rate of this Agreement shall govern Escrow Agent’s obligations with respect to the Deposit. (i) return on such investment. Escrow Agent shall promptly deliver the Deposit (together with all interest accrued thereon) to Seller or to Purchaser, as the case may be, under the following conditions: (1) Upon and subject The Deposit shall be delivered to the occurrence of Seller at the Closing, it being agreed that Seller and Purchaser shall deliver to Escrow Agent shall apply at Closing a statement executed by Xxxxxx and Purchaser authorizing that the Deposit Deposit, together with all interest accrued thereon, may be released to or at the satisfaction direction of the Purchase PriceSeller; or (2) Escrow Agent The Deposit shall deliver the Deposit be delivered to Seller following receipt by Escrow Agent of written demand therefor from Seller stating that Seller is entitled Purchaser has failed to the Deposit under this Agreement, or that Seller has terminated this Agreementclose without legal excuse, provided Purchaser shall not have subsequently given written notice of objection in accordance with the provisions set forth below; or (3) The Deposit shall be delivered to Purchaser promptly following receipt by Escrow Agent of written demand therefor from Purchaser if such demand is made any time prior to the expiration of the Due Diligence Period; or (4) Subject to the terms of this Agreementsubsection (3) above, the Deposit shall be returned delivered to Purchaser following receipt by Escrow Agent of written demand therefor from Purchaser stating that Seller has defaulted in the performance of its obligations under this Agreement or that this Agreement was terminated under circumstances entitling Purchaser to the return of the Deposit, together with all interest accrued thereon, and specifying the Section of this Agreement which entitles Purchaser to the return of the Deposit, in each case provided Seller shall not have given written notice of objection in accordance together with the provisions set forth belowall interest accrued thereon; or (45) The Deposit shall be delivered to Purchaser or Seller as directed by joint written instructions of Seller and Purchaser. (iiiii) Upon the giving filing of a written demand for the Deposit by Seller or Purchaser, Purchaser pursuant to Section 4(d)(i)(2subsection (2) or Section 4(d)(i)(3(4) above, Escrow Agent shall promptly give notice thereof (including a copy of such demand demand) to the other party. The other party shall have the right to object to the delivery of the Deposit, Deposit by giving written notice of such objection to Escrow Agent at any time within six five (65) business days after such party’s receipt of the copy of such demand notice from Escrow Agent, but not thereafter. Such notice shall set forth the basis (in reasonable detail) for objecting to the delivery of the Deposit. Upon receipt of such notice of objection, Escrow Agent shall promptly give a copy of such notice to the party who filed the written demand. If demand for delivery of the Escrow Agent does not timely receive a written objection from the other party to the proposed payment, the Escrow Agent is hereby authorized to make such deliveryDeposit. If Escrow Agent shall have timely received such a notice of objection, Escrow Agent shall continue to hold the Deposit until (x) Escrow Agent receives joint written notice from Seller and Purchaser directing the delivery of retain the Deposit, in which case Escrow Agent shall then together with all interest accrued thereon, and thereafter deliver the Deposit in accordance with said direction, or (y) litigation is commenced between Seller and Purchaser, in which case Escrow Agent shall place the Deposit with the clerk of the court in which said litigation is pending, or (z) Escrow Agent takes such affirmative steps as Escrow Agent may elect, at Escrow Agent’s option, in order same to terminate Escrow Agent’s duties hereunder, including but not limited to depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne by whichever of either Seller or Purchaser is the losing party in such interpleader action, as determined by a final non-appealable order of such court. (iii) Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Seller or Purchaser, as the case may be, and shall not be liable for any damages or claims incurred by Seller or Purchaser in connection with the performance of any duties imposed upon Escrow Agent by the provisions of this Agreement, except for those resulting from Escrow Agent’s own gross negligence, willful misconduct or breach of its obligations hereunder. Escrow Agent shall have no duties or responsibilities except those set forth herein. Escrow Agent shall not be bound by any modification, cancellation or rescission of this Agreement unless the same is in writing and signed by Purchaser and Seller, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Seller and Purchaser for any reasonable out-of-pocket expenses (including reasonable legal fees and disbursements of outside counsel), including all of Escrow Agent’s reasonable out-of-pocket fees and expenses with respect to any interpleader action incurred in connection with this Agreement, and such liability shall be joint and several; provided, that, as between Purchaser and Seller, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement by the losing party of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Purchaser or Seller that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to hold the Deposit and may decline to take any other action. After delivery of the Deposit in accordance herewith, Escrow Agent shall have no further liability or obligation of any kind whatsoever. (iv) Escrow Agent shall have the right at any time to resign upon thirty (30) days’ prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select direct by a successor Escrow Agent and shall notify Escrow Agent statement executed by both of them or as directed by the name and address order of such successor Escrow Agent within ten (10) business days after receipt of notice from Escrow Agent of its intent to resign. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser a bank or trust company licensed to do business in the State of New York and having a branch located in New York City to act as successor Escrow Agent hereunder or to place the Deposit with a any court of competent jurisdiction. Upon notice from Seller and Purchaser of their appointment of a successor Escrow Agent, ; provided Escrow Agent shall deliver the Deposit to such successor Escrow Agent selected hereunder, provided such successor Escrow Agent shall execute and deliver to Seller and Purchaser an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of the Deposit and such assumption agreement, the successor Escrow Agent shall become the Escrow Agent for all purposes hereunder and shall have all of the rights and obligations of the Escrow Agent hereunder, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. (v) Subject to the provisions of Section 4(d)(iii), Seller and Purchaser each hereby agrees to jointly and severally indemnify, defend and hold harmless Escrow Agent from and against any and all loss, cost, damage, expense and reasonable attorneys’ fees actually incurred by Escrow Agent arising out of it acting as the Escrow Agent hereunder, other than to the extent arising from Escrow Agent’s gross negligence, willful misconduct or breach of its obligations hereunder. (vi) [Intentionally Omitted]. (vii) Escrow Agent is not a party to, and is not bound by, or charged with notice of any agreement out of which this escrow may arise, other than this Agreement. (viii) Escrow Agent is acting solely as a stakeholder and depository, and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness, or validity of the subject matter of the escrow, or for the identity or authority of any person executing or depositing it. (ix) [Intentionally Omitted]. (x) The provisions of this Section 4(d) shall survive the Closing or termination of this Agreement until the Survival Date set forth in Section 41 (Survival) hereof. (xi) Purchaser and Seller reserve the rightmay, at any time a dispute between Purchaser and from time Seller shall exist as to time, to substitute a new escrow agent in place of Escrow Agent. (xii) Other than Seller and Purchaser, none the disposition of the Seller Parties or Purchaser Parties shall have any liability to Escrow Agent in connection Deposit, with the performance of Section 4 of this Agreement, and Escrow Agent hereby waives any and all claims against any and all of such parties arising out of, or in any way connected with, the provisions of this Agreement to which Escrow Agent has consented, agreed and acknowledged. (e) [Intentionally Omitted]. (f) All monies payable by Purchaser under this Agreement, unless otherwise specified in this Agreement, shall be paid by Purchaser causing such monies to be wire transferred in immediately available federal funds at such bank account or accounts designated by Seller, and divided into such amounts designated by Seller as may be required to facilitate the consummation of the transactions contemplated by this Agreement. (g) As used in this Agreement, the term “business day” shall mean every day other not less than Saturdays, Sundays, all days observed by the federal or New York State government as legal holidays, all days on which commercial banks in New York State are required by law to be closed, and all days when because of emergencies that may arise commercial banks or New York City courts are closed. Any reference in this Agreement to a “day” or a number of “days” (other than references to a “business day” or “business days”) shall mean a calendar day or calendar days.five