Shortfall Payment. (a) Unless Sellers have made a Non-Shortfall Election (as defined in Section 2.10), at the close of business on the Marketing Termination Date (which shall be the twentieth (20th) Business Day (or, in the event Sellers exercise their Delay Election (as defined below) on the fortieth (40th) Business Day) after the later of (x) the Registration Statement Effective Date and (y) the Closing Date), if each Seller has not received an aggregate of at least one-half of the Minimum Realized Proceeds Amount (as defined below) from that portion of the Total Proceeds attributable to the Non-Escrowed Shares, then on the third (3rd) Business Day after the Marketing Termination Date, Purchaser will pay to each such Seller an amount equal to such shortfall payable in immediately available funds by wire transfer to an account designated by each Seller (such payments being herein referred to as the "Shortfall Payments" and the day such Shortfall Payments are due shall be referred to herein as the "Settlement Date"); provided, however, that if, on the Settlement Date, there are any previously executed trades of Shares for which settlement is then pending, the Settlement Date shall be postponed for up to three (3) Business Days to permit settlement thereof. On the Settlement Date, each Seller who receives a Shortfall Payment shall, as a condition precedent to Purchaser's obligation to make the Shortfall Payment to such Seller, deliver to Purchaser in consideration therefor, and Purchaser shall acquire ownership of, all unsold Non-Escrowed Shares of such Seller. Any amounts owed by such Seller under a Loan or the related Pledge Agreement (as defined in Section 2.04(b)) outstanding on the Settlement Date shall be set off against the amount of the Shortfall Payments and such Seller's obligations thereunder shall be deemed to be satisfied in full and such Loan or Loans shall be canceled. At the sole option of the Sellers, the Sellers may delay the Marketing Termination Date by twenty (20) Business Days (a "Delay Election") by delivering to Purchaser, on or before the second (2nd) Business Day after the date on which Sellers receive written notice from Purchaser that the Registration Statement Effective Time has occurred, a writing executed by both Sellers stating that the Sellers thereby make a Delay Election pursuant to the terms of this Section 2.03. If it does not occur sooner under the terms hereof, then the Settlement Date shall be on September 30, 1999. The "Minimum Realized Proceeds Amount" shall be Forty Three Million Eight Hundred Nine Thousand Dollars ($43,809,000). If either Seller is unable to deliver to Purchaser all or any portion of his unsold Non-Escrowed Shares on the Settlement Date free and clear of any liens, claims or encumbrances (other than liens, claims or encumbrances arising to secure an obligation of, or arising by way of any claims against, Purchaser or arising pursuant to the applicable Pledge Agreement), then, at the request of such Seller, delivered on or before the Settlement Date, Purchaser shall delay the Settlement Date with respect to such Seller until (A) such Seller is able to fully comply with each requirement of this Section 2.03(a), (B) Seller notifies Purchaser in writing that he will not be able to fully comply with each requirement of Sellers in this Section 2.03(a) and expressly waives any rights pursuant to Section 2.03(a) or (C) a final opinion of a court of competent jurisdiction, not subject to appeal, holds that a party other than such Seller has title to such Non-Escrowed Shares and that Seller has no claim to such Non-Escrowed Shares and may not tender them pursuant hereto. (b) At the close of business on the Marketing Termination Date (determined pursuant to Section 2.03(a)), if the Escrow Agent has not received an aggregate of at least Three Million Dollars ($3,000,000) from that portion of the Total Proceeds attributable to the Escrowed Shares, then on the Settlement Date, Purchaser will pay to the Escrow Agent an amount equal to such shortfall payable in immediately available funds by wire transfer to the account designated in the Escrow Agreement (such payment being herein referred to as the "Escrow Shortfall Payment"). Escrow Agent shall deliver to Purchaser in consideration therefor, and Purchaser shall acquire ownership of, all unsold Escrowed Shares. At the close of business on the Marketing Termination Date (determined pursuant to Section 2.03(a)), if the Escrow Agent has received in excess of Three Million Dollars ($3,000,000) from that portion of the Total Proceeds attributable to the Escrowed Shares, then, upon the taking of all action required to be taken as of the Settlement Date, the Escrow Agent shall distribute one-half (1/2) of such excess to each Seller. Purchaser and Sellers covenant and agree that the exercise or failure to exercise the Non-Shortfall Election shall have no effect on the Escrow Agent or the Escrowed Shares.
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Shortfall Payment. On or before the date on which the Plan is filed with the Bankruptcy Court, InfiniCom shall deposit the sum of $225,000 (the "Shortfall Principal Deposit") into an escrow account (the "Escrow Account") with an escrow company (which may be a bank or trust company) mutually acceptable to InfiniCom and Scoop (the "Escrow Holder"). The Escrow Holder shall be instructed to invest all amounts from time to time on deposit in the Escrow Account in such securities as InfiniCom and Scoop shall mutually agree. All investment earnings from such investments ("Investment Earnings") shall be credited to the Escrow Account. On or before the fifth (5th) day of each month after the date on which the Plan is filed with the Bankruptcy Court, InfiniCom shall deposit with the Escrow Holder for deposit into the Escrow Account an amount (the "Shortfall Interest Amount"; the Shortfall Principal Deposit together with all Shortfall Interest Amounts and, to the extent not included in a Shortfall Interest Amount, all Investment Earnings, collectively, the "Shortfall Deposit") equal to the difference between (a) Unless Sellers have made the product of (i) $22,500 and (ii) a Non-Shortfall Election (as defined fraction, the numerator of which is the number of days in Section 2.10), at the close of business on calendar month preceding the Marketing Termination Date (which shall be the twentieth (20th) Business Day (payment date or, in the event Sellers exercise their Delay Election case of the first such payment, from and including April 1, 1999 through but excluding the payment date (as defined beloweach such period, an "Applicable Interest Period"), and the denominator of which shall be three hundred sixty five (365) and (b) the Investment Earnings, if any, for the Applicable Interest Period. Subject to the terms and conditions set forth in this Agreement, to the extent that the Estate of Scoop on the fortieth (40th) Business Day) after the later of (x) the Registration Statement Effective Date and has insufficient funds available to pay in full the allowed amount of all Eligible Claims (y) the Closing Date), if each Seller has not received an aggregate amount of at least one-half of the Minimum Realized Proceeds Amount (as defined below) from that portion of the Total Proceeds attributable to the Non-Escrowed Shares, then on the third (3rd) Business Day after the Marketing Termination Date, Purchaser will pay to each such Seller an amount equal to such shortfall payable in immediately available funds by wire transfer to an account designated by each Seller (such payments being herein insufficiency shall be referred to as the "Shortfall Payments" Amount"), InfiniCom and Scoop shall cause the Escrow Holder to pay to the Disbursing Agent from the Shortfall Deposit in the Escrow Account on the Closing Date for distribution to the holders of Eligible Claims in accordance with the Plan an amount (collectively, the "Shortfall Payment") equal to (x) the lesser of the Shortfall Amount or the Shortfall Principal Deposit (such lesser amount, the "Shortfall Principal Amount") plus (y) simple interest on the Shortfall Principal Amount at the rate of 10% per annum (based on a year of 365 days and actual days elapsed) from and including April 1, 1999 to but excluding the earlier of August 31, 1999 or the date on which the Plan is confirmed. The Shortfall Deposit is non-refundable to the extent necessary to pay the Shortfall Payment, and the day such Shortfall Payments are due only grounds under which InfiniCom shall be referred entitled to herein as obtain a refund of the "Settlement Date"Shortfall Deposit are if this Agreement is terminated under Section 5.1(a), (b) or (d); provided, however, that if, on the Settlement Date, there are any previously executed trades of Shares for which settlement is then pending, the Settlement Date InfiniCom shall be postponed for up entitled to three (3) Business Days to permit settlement thereof. On the Settlement Date, each Seller who receives a refund of any Shortfall Payment shall, as a condition precedent to Purchaser's obligation to make Deposit remaining in the Escrow Account after the Shortfall Payment is made to the Disbursing Agent (such Sellerremaining amount, deliver the "Shortfall Excess"). The Shortfall Excess, if any, may be repaid to Purchaser InfiniCom in consideration thereforincrements, and Purchaser shall acquire ownership ofor as a whole, all unsold Non-Escrowed Shares as distributions are made to holders of such Seller. Any amounts owed by such Seller under a Loan or Eligible Claims; provided, however, that the related Pledge Agreement (as defined in Section 2.04(b)) outstanding on the Settlement Date shall be set off against the full amount of the any Shortfall Payments and such Seller's obligations thereunder Excess shall be deemed have been paid to be satisfied in full and such Loan or Loans shall be canceled. At the sole option of the Sellers, the Sellers may delay the Marketing Termination Date by twenty (20) Business Days (a "Delay Election") by delivering to Purchaser, InfiniCom on or before the second earlier of (2ndA) Business Day the date numerically corresponding to the Effective Date in the twelfth month after the Effective Date or (B) the business day immediately following the first date on which Sellers receive written notice from Purchaser that the Registration Statement Effective Time has occurred, a writing executed by both Sellers stating that the Sellers thereby make a Delay Election pursuant all Eligible Claims shall have been paid. The Shortfall Deposit shall be subject to the terms jurisdiction of this Section 2.03. If it does not occur sooner under the terms hereofBankruptcy Court, then and in the Settlement Date shall be on September 30event that any dispute should arise among Scoop, 1999. The "Minimum Realized Proceeds Amount" shall be Forty Three Million Eight Hundred Nine Thousand Dollars ($43,809,000). If either Seller is unable to deliver to Purchaser all or any portion InfiniCom and the Creditors' Committee regarding the disposition of his unsold Non-Escrowed Shares on the Settlement Date free and clear of any liensShortfall Deposit, claims or encumbrances (other than liens, claims or encumbrances arising to secure an obligation of, or arising by way of any claims against, Purchaser or arising pursuant to the applicable Pledge Agreement), then, at Bankruptcy Court will determine the request merits of such Seller, delivered on or before the Settlement Date, Purchaser shall delay the Settlement Date with respect to such Seller until (A) such Seller is able to fully comply with each requirement of this Section 2.03(a), (B) Seller notifies Purchaser in writing that he will not be able to fully comply with each requirement of Sellers in this Section 2.03(a) and expressly waives any rights pursuant to Section 2.03(a) or (C) a final opinion of a court of competent jurisdiction, not subject to appeal, holds that a party other than such Seller has title to such Non-Escrowed Shares and that Seller has no claim to such Non-Escrowed Shares and may not tender them pursuant heretodispute.
(b) At the close of business on the Marketing Termination Date (determined pursuant to Section 2.03(a)), if the Escrow Agent has not received an aggregate of at least Three Million Dollars ($3,000,000) from that portion of the Total Proceeds attributable to the Escrowed Shares, then on the Settlement Date, Purchaser will pay to the Escrow Agent an amount equal to such shortfall payable in immediately available funds by wire transfer to the account designated in the Escrow Agreement (such payment being herein referred to as the "Escrow Shortfall Payment"). Escrow Agent shall deliver to Purchaser in consideration therefor, and Purchaser shall acquire ownership of, all unsold Escrowed Shares. At the close of business on the Marketing Termination Date (determined pursuant to Section 2.03(a)), if the Escrow Agent has received in excess of Three Million Dollars ($3,000,000) from that portion of the Total Proceeds attributable to the Escrowed Shares, then, upon the taking of all action required to be taken as of the Settlement Date, the Escrow Agent shall distribute one-half (1/2) of such excess to each Seller. Purchaser and Sellers covenant and agree that the exercise or failure to exercise the Non-Shortfall Election shall have no effect on the Escrow Agent or the Escrowed Shares.
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