Closing Escrow. Seller and Purchaser acknowledge that Escrow Agent undertakes hereunder to perform only such duties as are expressly set forth herein. The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows: (a) Escrow Agent may (i) act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and (iii) assume that any person purporting to give any writing in connection with the provisions hereof has been duly authorized to do so. (b) Seller and Purchaser agree, jointly and severally, to indemnify and hold harmless Escrow Agent from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing party. (c) Escrow Agent shall hold and disburse the Deposit in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement of the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursement. (d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is received. (e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence. (f) Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaser, and if a successor escrow agent is not appointed within such fifteen (15) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
Appears in 2 contracts
Samples: Contract of Sale (US Federal Properties Trust Inc.), Contract of Sale (US Federal Properties Trust Inc.)
Closing Escrow. (a) The Seller and the Purchaser acknowledge that pursuant to this Agreement the Seller is conveying legal title of the Shares to the Purchaser at the Closing. To facilitate efficiency at Closing the parties hereby appoint Wuersch & Xxxxxx LLP to serve as Closing escrow agent (the “Escrow Agent”). Prior to the Closing: (i) the Seller shall deliver to the Escrow Agent undertakes hereunder the Certificate, Stock Power, the irrevocable Instruction Letter and all other materials required to perform only such duties as are expressly be delivered by Seller to the Purchaser at the Closing pursuant to the terms and conditions set forth herein. The Deposit in this Agreement (the “Seller Escrow”); and any other funds deposited with (ii) the Purchaser shall deliver to the Purchase Price to the attorney trust account of the Escrow Agent will set forth on Exhibit A together with all other materials required to be delivered by Purchaser to the Seller at the Closing pursuant to the terms and conditions set forth in this Agreement (“Purchaser Escrow”), to be held and disbursed as follows:
(a) released at Closing by the Escrow Agent may (i) act or otherwise subject to disposition in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and (iii) assume that any person purporting to give any writing in connection accordance with the terms and conditions of this Section 6.6 (the “Escrow”). The Escrow Agent is expressly authorized by the parties to rely upon all representations, warranties, covenants and other provisions hereof has been duly authorized to do soof this Agreement.
(b) Seller and Purchaser agreeAt the Closing, jointly and severallyupon satisfaction or waiver of all conditions precedent set forth in Article 6 of this Agreement as advised by the parties in the form set forth on Exhibit C hereto, to indemnify and hold harmless the Escrow Agent shall (i) initiate and deliver the Purchase Price to the Seller by wire transfer in accordance with the Seller’s instructions set forth on Exhibit A; and (ii) upon FedWire confirmation (as defined below) of transmittal of the wire transfer to the Seller of the Purchase Price, the Escrow Agent shall deliver the Certificate, Stock Power and irrevocable Instruction Letter to the Company’s transfer agent for re-issuance of such securities on a new certificate in the name of Purchaser as holder of record of said securities. “FedWire confirmation” is the assignment of a unique transmittal number from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoeverthe Real Time Gross Settlement Funds Transfer system operated by the U.S. Federal Reserve Bank, which assignment shall be conveyed to the Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing partybank.
(c) Escrow Agent shall hold and disburse In the Deposit event of termination of this Agreement in accordance with the terms of this Agreement. and conditions set forth herein without Closing, the Escrow Agent will not make any disbursement of shall promptly return (i) the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice Seller Escrow to the party which will not receive Seller; and (ii) the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object Purchaser Escrow to the disbursement Purchaser, subject to reimbursement by written notice each party for reasonable out of pocket expenses expected to be incurred by the other party and to Escrow Agent prior for the returns to the scheduled disbursement will constitute binding acquiescence of such party to the disbursementparty.
(d) In the event of any controversy between the parties hereto or any third person with respect to the escrow services provided by the Escrow Agent, the Escrow Agent, at its sole discretion, shall not be required to make any determinations or take any action. If there is any disagreement about dispute as to whom the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunderis to deliver the Certificate, the Escrow Agent may, and upon at its sole discretion, hold the request of either respective Seller Escrow or PurchaserPurchaser Escrow until such party’s rights are finally determined in a judicial forum or proceeding having competent jurisdiction over the parties. Notwithstanding anything to the contrary herein, shall file an action in interpleader to resolve such disagreement, but the Escrow Agent will not take may elect to deposit the Seller Escrow or Purchaser Escrow into any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part court of its activities under this Contract until a final judgment in the interpleader action is receivedcompetent jurisdiction for resolution of any controversy.
(e) The Escrow Agent may consult with counsel Agent’s duties are limited to those set forth in this Agreement. Except in the case of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence, each of the Seller and the Purchaser agree to jointly and severally indemnify and hold harmless the Escrow Agent with respect to any and all services rendered hereunder, including, without limitation, all fees, costs, expenses and disbursements of counsel incurred in enforcing the rights of the Escrow Agent with respect to this Agreement and in defending any action against the Escrow Agent related to this Agreement, in each case irrespective of the outcome of such action thereto. The Seller and the Purchaser expressly exculpate the Escrow Agent for any and all actions taken, or omitted to be taken, in good faith reliance upon this Agreement and the transactions contemplated hereunder.
(f) Each of the parties expressly acknowledges and agrees that the Escrow Agent is serving as legal counsel to the Purchaser. Each of the Seller and the Purchaser hereby acknowledge that under no circumstances shall the escrow agency services of the Escrow Agent be deemed to constitute a conflict of interest in respect of services rendered hereby and each party fully and knowingly waives any claim of such conflict. The parties expressly acknowledge and agree that the Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaseract as its own legal counsel, and if a successor escrow agent is which representation shall not appointed within such fifteen (15) day period, be the basis for disqualification as either Escrow Agent may petition a court of competent jurisdiction to name a successor.or as counsel. Seller V.V. Purchaser T.S. R.T.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rudana Investment Group AG)
Closing Escrow. (a) The Seller and the Purchaser acknowledge that pursuant to this Agreement the Seller is conveying legal title of the Shares to the Purchaser at the Closing. To facilitate efficiency at Closing the parties hereby appoint Wuersch & Xxxxxx LLP to serve as Closing escrow agent (the “Escrow Agent”). Prior to the Closing: (i) the Seller shall deliver to the Escrow Agent undertakes hereunder the Certificate, Stock Power, the Seller /s/ AG Purchaser /s/ CD irrevocable Instruction Letter and all other materials required to perform only such duties as are expressly be delivered by Seller to the Purchaser at the Closing pursuant to the terms and conditions set forth herein. The Deposit in this Agreement (the “Seller Escrow”); and any other funds deposited with (ii) the Purchaser shall deliver to the Purchase Price to the attorney trust account of the Escrow Agent will set forth on Exhibit A together with all other materials required to be delivered by Purchaser to the Seller at the Closing pursuant to the terms and conditions set forth in this Agreement (“Purchaser Escrow”), to be held and disbursed as follows:
(a) released at Closing by the Escrow Agent may (i) act or otherwise subject to disposition in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and (iii) assume that any person purporting to give any writing in connection accordance with the terms and conditions of this Section 6.6 (the “Escrow”). The Escrow Agent is expressly authorized by the parties to rely upon all representations, warranties, covenants and other provisions hereof has been duly authorized to do soof this Agreement.
(b) Seller and Purchaser agreeAt the Closing, jointly and severallyupon satisfaction or waiver of all conditions precedent set forth in Article 6 of this Agreement as advised by the parties in the form set forth on Exhibit D hereto, to indemnify and hold harmless the Escrow Agent shall (i) initiate and deliver the Purchase Price to the Seller by wire transfer in accordance with the Seller’s instructions set forth on Exhibit A; and (ii) upon FedWire confirmation (as defined below) of transmittal of the wire transfer to the Seller of the Purchase Price, the Escrow Agent shall deliver the Certificate, Stock Power and irrevocable Instruction Letter to the Company’s transfer agent for re-issuance of such securities on a new certificate in the name of Purchaser as holder of record of said securities. “FedWire confirmation” is the assignment of a unique transmittal number from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoeverthe Real Time Gross Settlement Funds Transfer system operated by the U.S. Federal Reserve Bank, which assignment shall be conveyed to the Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing partybank.
(c) Escrow Agent shall hold and disburse In the Deposit event of termination of this Agreement in accordance with the terms of this Agreement. and conditions set forth herein without Closing, the Escrow Agent will not make any disbursement of shall promptly return (i) the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice Seller Escrow to the party which will not receive Seller; and (ii) the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object Purchaser Escrow to the disbursement Purchaser, subject to reimbursement by written notice each party for reasonable out of pocket expenses expected to be incurred by the other party and to Escrow Agent prior for the returns to the scheduled disbursement will constitute binding acquiescence of such party to the disbursementparty.
(d) In the event of any controversy between the parties hereto or any third person with respect to the escrow services provided by the Escrow Agent, the Escrow Agent, at its sole discretion, shall not be required to make any determinations or take any action. If there is any disagreement about dispute as to whom the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunderis to deliver the Certificate, the Escrow Agent may, and upon at its sole discretion, hold the request of either respective Seller Escrow or PurchaserPurchaser Escrow until such party’s rights are finally determined in a judicial forum or proceeding having competent jurisdiction over the parties. Notwithstanding anything to the contrary herein, shall file an action in interpleader to resolve such disagreement, but the Escrow Agent will not take may elect to deposit the Seller Escrow or Purchaser Escrow into any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part court of its activities under this Contract until a final judgment in the interpleader action is receivedcompetent jurisdiction for resolution of any controversy.
(e) The Escrow Agent may consult with counsel Agent’s duties are limited to those set forth in this Agreement. Except in the case of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence, each of the Seller and the Purchaser agree to jointly and severally indemnify and hold harmless the Escrow Agent with respect to any and all services rendered hereunder, including, without limitation, all fees, costs, expenses and disbursements of counsel incurred in enforcing the rights of the Escrow Agent with respect to this Agreement and in defending any action against the Escrow Agent related to this Agreement, in each case irrespective of the outcome of such action thereto. The Seller and the Purchaser expressly exculpate the Escrow Agent for any and all actions taken, or omitted to be taken, in good faith reliance upon this Agreement and the transactions contemplated hereunder.
(f) Each of the parties expressly acknowledges and agrees that the Escrow Agent is serving as legal counsel to the Purchaser. Each of the Seller and the Purchaser hereby acknowledge that under no circumstances shall the escrow agency services of the Escrow Agent be deemed to constitute a conflict of interest in respect of services rendered hereby and each party fully and knowingly waives any claim of such conflict. The parties expressly acknowledge and agree that the Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaseract as its own legal counsel, and if a successor escrow agent is which representation shall not appointed within such fifteen (15) day period, be the basis for disqualification as either Escrow Agent may petition a court of competent jurisdiction to name a successoror as counsel.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rudana Investment Group AG)
Closing Escrow. (i) The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Salmon and Nostrand, Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000-0000, or at such other place as Buyer and Seller mutually agree, at 9:00 a.m. local time, on the second business day following the satisfaction or waiver of all the conditions to the obligations of the Parties to consummate the transactions contemplated hereby or such other date as the arties may mutually determine (the “Closing Date”).
(ii) At the Closing, Buyer will (i) pay the Cash Purchase Price by wire transfer of immediately available funds to such account as Seller may direct by written notice delivered to Buyer by Seller, provided that the Cash Purchase Price shall be reduced by $1,000,000 (the “Escrow Amount”), which Escrow Amount shall be delivered by Buyer by wire transfer at the Closing of immediately available funds to First American Title Company (the “Escrow Agent”), under an escrow agreement to be entered into on the Closing Date by Seller, Buyer and Purchaser acknowledge that the Escrow Agent, substantially in the form of Exhibit A hereto (the “Escrow Agreement”), such Escrow Amount to be held by the Escrow Agent undertakes hereunder for a period of one year from the Closing Date in order to perform only such duties as are expressly help secure the prompt payment of any claims for Losses made under Section 8.2 hereof; and (ii) deliver the Parent Shares set forth hereinin Section 2.3(ii) above. The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
Simultaneously, (a) Escrow Agent may Seller will assign and transfer to Buyer good and valid title in and to the Acquired Assets (free and clear of all Security Interests) by delivery of (i) act general assignment and xxxx of sale substantially in reliance upon any writing or instrument or signature which it, in good faith, believes form and substance reasonably satisfactory to be genuineBuyer, (ii) assume an assignment of the validity Intellectual Property in form and accuracy substance reasonably satisfactory to Buyer, (iii) a general warranty deed in proper statutory form for recording and otherwise in form and substance reasonably satisfactory to Buyer conveying title to the Real Property and (iv) such other good and sufficient instruments of any statement or assertion contained conveyance, assignment and transfer, in such a writing or instrumentform and substance reasonably acceptable to Buyer, as shall be effective to vest in Buyer good, marketable title to the Acquired Assets (the instruments referred to in clauses (i), (ii), (iii) and (iv) being collectively referred to herein as the “Assignment Instruments”), and (iiib) Buyer will assume that any person purporting from Seller the due payment, performance and discharge of the Assumed Liabilities by delivery of an assumption agreement in form and substance reasonably acceptable to give any writing Seller, and (ii) such other good and sufficient instruments of assumption, in connection with form and substance reasonably acceptable to Seller, as shall be effective to cause Buyer to assume the provisions hereof has been duly authorized Assumed Liabilities as and to do so.
the extent provided in Section 2.2 (the instruments referred to in this clause (b) Seller and Purchaser agreebeing collectively referred to herein as the “Assumption Instruments”). At the Closing, jointly and severally, to indemnify and hold harmless Escrow Agent from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may there shall also be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing party.
(c) Escrow Agent shall hold and disburse the Deposit in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement of the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursement.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is received.
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice delivered to Seller and PurchaserBuyer the opinions, certificates and if a successor escrow agent is not appointed within such fifteen (15) day periodother contracts, Escrow Agent may petition a court of competent jurisdiction documents and instruments required to name a successorbe delivered under Section 6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cardiodynamics International Corp)
Closing Escrow. The Closing will take place at the offices of Purchaser, or at such other place as Purchaser and Seller mutually agree, at 10:00 A.M. local time, on the Closing Date. At the Closing, Purchaser will pay the Cash Component (calculated, for purposes of the Closing, using the Estimated SAV and Estimated SLA) by delivering to Seller a promissory note on substantially the terms described in Exhibit J attached hereto (the “Purchaser acknowledge Promissory Note”). Also at the Closing, or as soon thereafter as practicable, Purchaser shall deliver stock certificates representing the Stock Component to Seller as Seller may reasonably direct by written notice delivered to Purchaser by Seller at least two (2) Business Days before the Closing Date; provided that a stock certificate or certificates representing 750,000 of the shares comprising the Stock Component (the “Escrow Agent undertakes hereunder Shares”) shall be delivered by Purchaser to perform only such duties Xxxxxxxxxx & Xxxxx LLP, as are expressly set forth hereinescrow agent (the “Escrow Agent”), under an escrow agreement to be entered into on the Closing Date by Seller, Purchaser and the Escrow Agent, substantially in the form of Exhibit A hereto (the “Escrow Agreement”). The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
Simultaneously at the Closing, (a) Escrow Agent may Seller will assign and transfer to Purchaser good and valid title in and to the Assets (free and clear of all Liens, other than Permitted Liens) by delivery of (i) act a General Assignment and Bill of Sale substantially in reliance upon any writing or instrument or signature which itthe form of Exhibit B hereto (the “General Assignment”), in good faith, believes to be genuineduly executed by Seller, (ii) assume an assignment of the validity Intellectual Property in form and accuracy of any statement or assertion contained in such a writing or instrumentsubstance reasonably satisfactory to Purchaser, and (iii) assume that any person purporting such other good and sufficient instruments of conveyance, assignment and transfer, in form and substance reasonably acceptable to give any writing Purchaser’s counsel, as shall be effective to vest in connection with Purchaser good title to the provisions hereof has been duly authorized Assets (the General Assignment and the other instruments referred to do so.
in clauses (ii) and (iii) being collectively referred to herein as the “Assignment Instruments”), and (b) Purchaser will assume from Seller the due payment, performance and discharge of the Assumed Liabilities by delivery of (i) an Assumption Agreement substantially in the form of Exhibit C hereto (the “Assumption Agreement”), duly executed by Purchaser, and (ii) such other good and sufficient instruments of assumption, in form and substance reasonably acceptable to Seller’s counsel, as shall be effective to cause Purchaser to assume the Assumed Liabilities as and to the extent provided in Section 1.2(a) (the Assumption Agreement and such other instruments referred to in clause (ii) being collectively referred to herein as the “Assumption Instruments”). At the Closing, there shall also be delivered to Seller and Purchaser agreethe opinions, jointly certificates and severallyother contracts, documents and instruments required to indemnify be delivered under Articles 6 and hold harmless Escrow Agent from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing party7.
(c) Escrow Agent shall hold and disburse the Deposit in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement of the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursement.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is received.
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaser, and if a successor escrow agent is not appointed within such fifteen (15) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
Appears in 1 contract
Samples: Asset Purchase Agreement
Closing Escrow. Seller and Purchaser acknowledge that Escrow Agent undertakes hereunder to perform only such duties as are expressly set forth herein. The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
(a) Escrow Agent may (i) act in reliance upon any writing At the Closing, the Sellers shall deliver to the Purchaser Sub the Unwire Securities and all share certificates, subscription rights certificates, debt instruments and interim or instrument or signature which itother certificates, if any, evidencing the Unwire Securities to be sold to the Purchaser Sub pursuant to this Agreement, in good faitheach case duly endorsed in blank or accompanied by duly executed instruments of transfer in blank, believes to be genuine, (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrumentif applicable, and (iii) assume the share register of the Company, setting forth the Purchaser Sub as the owner of all Unwire Securities representing shares in the Company, together, in each case, with all necessary documentary or stock transfer stamps affixed and accompanied by such other assignments, certificates of authority, consents to transfer instruments and evidence of title to such shares as may be reasonably requested by counsel to the Purchaser in order that any person purporting all right, title and interest in and to give any writing in connection with the provisions hereof has been duly authorized Unwire Securities pass to do sothe Purchaser Sub from the Sellers.
(b) Seller At the Closing, in consideration for the Sellers' delivery of the Unwire Securities to the Purchaser Sub, CellPoint shall deliver or cause to be delivered to (i) the Sellers, stock certificates evidencing 1,021,250 CellPoint Shares (constituting 95% of the aggregate CellPoint Shares to be issued hereunder), registered in the names of the Sellers (or their respective designees as the Sellers shall have notified the Purchaser prior to the Closing) as to the actual registered owners and Purchaser agreethe number of shares, jointly and severally(ii) the Escrow Agent, to indemnify and hold harmless be held by the Escrow Agent from pursuant to, and against any in accordance with, Article X hereof and all actual claimsthe Escrow Agreement:
A) stock certificates evidencing 53,750 CellPoint Shares (constituting 5% of the aggregate CellPoint Shares to be issued hereunder), liabilities, losses, actions, suits or proceedings at law or which are to be held in equity, or any other reasonable expenses, fees or charges escrow pending determination of any character or nature whatsoeverindemnification obligations of the Sellers pursuant to Article X hereof (the "Seller Escrow Shares"); and
B) 53,750 shares of CellPoint Common Stock, which are to be held in escrow pending determination of any indemnification obligations of the Purchaser pursuant to Article X hereof (the "Purchaser Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Shares"). The Seller Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees Shares and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses Purchaser Escrow Shares are incurred by collectively referred to as the "Escrow Agent Shares". The share certificates evidencing the Escrow Shares deposited in connection escrow with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing party.
(c) Escrow Agent shall hold and disburse the Deposit be accompanied by duly endorsed stock powers which are also to be held in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement of the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursementescrow.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is received.
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaser, and if a successor escrow agent is not appointed within such fifteen (15) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
Appears in 1 contract
Closing Escrow. (a) The Seller and the Purchaser acknowledge that pursuant to this Agreement the Seller is conveying legal title of the Shares to the Purchaser at the Closing. To facilitate efficiency at Closing the parties hereby appoint Wuersch & Xxxxxx LLP to serve as Closing escrow agent (the “Escrow Agent”). Prior to the Closing: (i) the Seller shall deliver to the Escrow Agent undertakes hereunder the Certificate, Stock Power, the irrevocable Instruction Letter and all other materials required to perform only such duties as are expressly be delivered by Seller to the Purchaser at the Closing pursuant to the terms and conditions set forth herein. The Deposit in this Agreement (the “Seller Escrow”); and any other funds deposited with (ii) the Purchaser shall deliver the Purchase Price to the attorney trust account of the Escrow Agent will set forth on Exhibit A together with all other materials required to be delivered by Purchaser to the Seller at the Closing pursuant to the terms and conditions set forth in this Agreement (“Purchaser Escrow”), to be held and disbursed as follows:
(a) released at Closing by the Escrow Agent may (i) act or otherwise subject to disposition in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and (iii) assume that any person purporting to give any writing in connection accordance with the terms and conditions of this Section 6.6 (the “Escrow”). The Escrow Agent is expressly authorized by the parties to rely upon all representations, warranties, covenants and other provisions hereof has been duly authorized to do so.of this Agreement. Seller TM Purchaser RT TS
(b) Seller and Purchaser agreeAt the Closing, jointly and severallyupon satisfaction or waiver of all conditions precedent set forth in Article 6 of this Agreement as advised by the parties in the form set forth on Exhibit C hereto, to indemnify and hold harmless the Escrow Agent shall (i) initiate and deliver the Purchase Price to the Seller by wire transfer in accordance with the Seller’s instructions set forth on Exhibit A; and (ii) upon FedWire confirmation (as defined below) of transmittal of the wire transfer to the Seller of the Purchase Price, the Escrow Agent shall deliver the Certificate, Stock Power and irrevocable Instruction Letter to the Company’s transfer agent for re-issuance of such securities on a new certificate in the name of Purchaser as holder of record of said securities. “FedWire confirmation” is the assignment of a unique transmittal number from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoeverthe Real Time Gross Settlement Funds Transfer system operated by the U.S. Federal Reserve Bank, which assignment shall be conveyed to the Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing partybank.
(c) Escrow Agent shall hold and disburse In the Deposit event of termination of this Agreement in accordance with the terms of this Agreement. and conditions set forth herein without Closing, the Escrow Agent will not make any disbursement of shall promptly return (i) the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice Seller Escrow to the party which will not receive Seller; and (ii) the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object Purchaser Escrow to the disbursement Purchaser, subject to reimbursement by written notice each party for reasonable out of pocket expenses expected to be incurred by the other party and to Escrow Agent prior for the returns to the scheduled disbursement will constitute binding acquiescence of such party to the disbursementparty.
(d) In the event of any controversy between the parties hereto or any third person with respect to the escrow services provided by the Escrow Agent, the Escrow Agent, at its sole discretion, shall not be required to make any determinations or take any action. If there is any disagreement about dispute as to whom the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunderis to deliver the Certificate, the Escrow Agent may, and upon at its sole discretion, hold the request of either respective Seller Escrow or PurchaserPurchaser Escrow until such party’s rights are finally determined in a judicial forum or proceeding having competent jurisdiction over the parties. Notwithstanding anything to the contrary herein, shall file an action in interpleader to resolve such disagreement, but the Escrow Agent will not take may elect to deposit the Seller Escrow or Purchaser Escrow into any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part court of its activities under this Contract until a final judgment in the interpleader action is receivedcompetent jurisdiction for resolution of any controversy.
(e) The Escrow Agent may consult with counsel Agent’s duties are limited to those set forth in this Agreement. Except in the case of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence, each of the Seller and the Purchaser agree to jointly and severally indemnify and hold harmless the Escrow Agent with respect to any and all services rendered hereunder, including, without limitation, all fees, costs, expenses and disbursements of counsel incurred in enforcing the rights of the Escrow Agent with respect to this Agreement and in defending any action against the Escrow Agent related to this Agreement, in each case irrespective of the outcome of such action thereto. The Seller and the Purchaser expressly exculpate the Escrow Agent for any and all actions taken, or omitted to be taken, in good faith reliance upon this Agreement and the transactions contemplated hereunder.
(f) Each of the parties expressly acknowledges and agrees that the Escrow Agent is serving as legal counsel to the Purchaser. Each of the Seller and the Purchaser hereby acknowledge that under no circumstances shall the escrow agency services of the Escrow Agent be deemed to constitute a conflict of interest in respect of services rendered hereby and each party fully and knowingly waives any claim of such conflict. The parties expressly acknowledge and agree that the Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaseract as its own legal counsel, and if a successor escrow agent is which representation shall not appointed within such fifteen (15) day period, be the basis for disqualification as either Escrow Agent may petition a court of competent jurisdiction to name a successoror as counsel.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rudana Investment Group AG)
Closing Escrow. Seller and Purchaser acknowledge that Escrow Agent undertakes hereunder to perform only such duties as are expressly set forth herein. The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
(a) Escrow Agent may Subject to the provisions of the DP Sale Agreements and the IRE Sale Agreements, which agreements shall ultimately control the time, place, manner and method of closing, the closing shall be through an escrow (ithe "Closing Escrow") act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and (iii) assume that any person purporting to give any writing in connection established with the provisions hereof has been duly authorized Title Company, as escrowee. The Parties shall reasonably cooperate with each other in an attempt to do so.
(b) Seller schedule the closing of the separate sale agreements concurrently with this Agreement and Purchaser agree, jointly and severally, to indemnify and hold harmless Escrow Agent from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may be threatened solely by reason of its acting through the Closing Escrow. This Agreement shall serve as escrow agent hereunder, except instructions to the extent resulting from Escrow Agent’s gross negligenceTitle Company, fraud or intentional misconduct; and in connection therewith, subject to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost its Standard Conditions of defending any action, suit or proceedings or resisting any claimAcceptance of Escrow; provided, however, that if such expenses are incurred by this Agreement shall govern in the event of any conflict between said Standard Conditions and any of the terms hereof. The Escrow Agent shall be auxiliary to this Agreement, and this Agreement shall not be merged into, nor in connection with litigation between Seller and Purchaserany manner superseded by, the responsibility for indemnifying Closing Escrow. The Closing Escrow Agent for such expenses will belong solely costs and fees shall be equally divided between DP and IRE. On the Closing Date, if all the funds and documents set forth in Section 12 have been delivered to the nonTitle Company and if the Title Company is in a position to issue and will issue the IRE Property Title Policy as described in Section 14(c), the Title Company shall:
(i) Cause the IRE Property Deed and the DP Property Deed to be filed for record;
(ii) Make the prorations set forth in Section 13 paying all amounts of taxes and assessments which are applicable to the Property and which are due and payable at such time and appropriately charging or crediting the respective accounts of the parties;
(iii) Cause the issuance and delivery to DP of the IRE Property Title Policy charging to the account of IRE the cost of the title examination and title commitment and the cost of the premium of IRE Property Title Policy, and cause the issuance and delivery to IRE of the DP Property Title Policy charging to the account of DP the cost of the title examination and title commitment and the cost of the premium of the DP Property Title Policy;
(iv) Charge to the account of each Party one-prevailing partyhalf (1/2) of the escrow fee and all other sums properly chargeable against such party hereunder;
(v) To the extent that amounts are due between the parties, the Title Company shall set-off to the extent practicable the amounts owed each Party so that the minimum and most efficient transfer of funds takes place between the Parties; and
(vi) Pay to or upon the order of applicable Party the cash balance due to any such Party after deducting all amounts herein required to be paid from by such Party under this Agreement.
(cb) Escrow Agent The Title Company shall hold deliver to IRE the recorded DP Property Deed, to DP the recorded IRE Property Deed, and disburse shall deliver to the Deposit Parties original executed counterparts of all other documents delivered by IRE and DP into the Closing Escrow; and its escrow statement in accordance with duplicate showing all the terms of this Agreement. Escrow Agent will not make any disbursement charges and credits affecting the respective account of the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursementParties.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is received.
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaser, and if a successor escrow agent is not appointed within such fifteen (15) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
Appears in 1 contract
Samples: Real Estate Exchange Agreement (Illinois River Energy LLC)
Closing Escrow. The Closing will take place at the offices of Purchaser, or at such other place as Purchaser and Seller mutually agree, at 10:00 A.M. local time, on the Closing Date. At the Closing, Purchaser will pay the Cash Component (calculated, for purposes of the Closing, using the Estimated SAV and Estimated SLA) by delivering to Seller a promissory note on substantially the terms described in Exhibit J attached hereto (the “Purchaser acknowledge Promissory Note”). Also at the Closing, or as soon thereafter as practicable, Purchaser shall deliver stock certificates representing the Stock Component to Seller as Seller may reasonably direct by written notice delivered to Purchaser by Seller at least two (2) Business Days before the Closing Date; provided that a stock certificate or certificates representing 750,000 of the shares comprising the Stock Component (the “Escrow Agent undertakes hereunder Shares”) shall be delivered by Purchaser to perform only such duties Xxxxxxxxxx & Xxxxx LLP, as are expressly set forth hereinescrow agent (the “Escrow Agent”), under an escrow agreement to be entered into on the Closing Date by Seller, Purchaser and the Escrow Agent, substantially in the form of Exhibit A hereto (the “Escrow Agreement”). The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
Simultaneously at the Closing, (a) Escrow Agent may Seller will assign and transfer to Purchaser good and valid title in and to the Assets (free and clear of all Liens, other than Permitted Liens) by delivery of (i) act a General Assignment and Xxxx of Sale substantially in reliance upon any writing or instrument or signature which itthe form of Exhibit B hereto (the “General Assignment”), in good faith, believes to be genuineduly executed by Seller, (ii) assume an assignment of the validity Intellectual Property in form and accuracy of any statement or assertion contained in such a writing or instrumentsubstance reasonably satisfactory to Purchaser, and (iii) assume that any person purporting such other good and sufficient instruments of conveyance, assignment and transfer, in form and substance reasonably acceptable to give any writing Purchaser’s counsel, as shall be effective to vest in connection with Purchaser good title to the provisions hereof has been duly authorized Assets (the General Assignment and the other instruments referred to do so.
in clauses (ii) and (iii) being collectively referred to herein as the “Assignment Instruments”), and (b) Purchaser will assume from Seller the due payment, performance and discharge of the Assumed Liabilities by delivery of (i) an Assumption Agreement substantially in the form of Exhibit C hereto (the “Assumption Agreement”), duly executed by Purchaser, and (ii) such other good and sufficient instruments of assumption, in form and substance reasonably acceptable to Seller’s counsel, as shall be effective to cause Purchaser to assume the Assumed Liabilities as and to the extent provided in Section 1.2(a) (the Assumption Agreement and such other instruments referred to in clause (ii) being collectively referred to herein as the “Assumption Instruments”). At the Closing, there shall also be delivered to Seller and Purchaser agreethe opinions, jointly certificates and severallyother contracts, documents and instruments required to indemnify be delivered under Articles 6 and hold harmless Escrow Agent from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing party7.
(c) Escrow Agent shall hold and disburse the Deposit in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement of the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursement.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is received.
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaser, and if a successor escrow agent is not appointed within such fifteen (15) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
Appears in 1 contract
Closing Escrow. Seller The consummation of the transaction contemplated hereunder shall take place in escrow with the Title Company pursuant to a written escrow agreement among the attorneys for Purchaser, Seller, and the Title Company containing terms and conditions not inconsistent with the terms and conditions of this Agreement (which shall in all events be controlling) and mutually satisfactory to Purchaser acknowledge that Escrow Agent undertakes hereunder to perform only such duties as are expressly set forth hereinand Seller, or shall take place through a so-called "New York" style closing. The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
(a) Escrow Agent may (i) act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, (ii) assume the validity and accuracy cost of any statement or assertion contained in such a writing or instrument, and (iii) assume that any person purporting to give any writing escrow services in connection with the provisions hereof has been duly authorized Closing provided by the Title Company, including any costs attributable to do so.
a New York Style closing, shall be borne by Purchaser. If, prior to closing, a date-down to the Title Commitment discloses any new exception to title which are not Permitted Exceptions (b"Unpermitted Exceptions"), Seller shall have the right, but not the obligation, within ten (10) Seller and Purchaser agreedays from the date of the date-down to the Title Commitment to bond over, jointly and severallycure and/or have any Unpermitted Exceptions removed from the Title Commitment or to have the Title Insurer commit to insure against loss or damage that may be occasioned by such Unpermitted Exceptions by affirmative coverage reasonably satisfactory to Purchaser. Subject to the following sentence, the time of Closing shall be delayed, if necessary, to indemnify and hold harmless Escrow Agent give effect to said aforementioned time periods. If Seller does not elect to or fails to cure or have said Unpermitted Exception removed or have the Title Insurer commit to insure as specified above within said ten (10) day period, Purchaser may terminate this Agreement upon notice to Seller within five (5) days after the expiration of said ten (10) day period. Absent notice from and against any and all actual claimsPurchaser to Seller in accordance with the preceding sentence, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may Purchaser shall be threatened solely by reason of its acting as escrow agent hereunder, except deemed to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, have elected to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely take title subject to the non-prevailing party.
(c) Escrow Agent shall hold and disburse the Deposit said Unpermitted Exception. If Purchaser terminates this Agreement in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement Section 5.2, this Agreement shall become null and void without further action of the Deposit (except at a Closing pursuant parties and all Xxxxxxx Money theretofore deposited into the escrow by Purchaser together with any interest accrued thereon, shall be returned to a fully executed Settlement Statement) without giving written notice Purchaser, and neither party shall have any further liability to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement other, except for Purchaser's obligation to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursement.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both indemnify Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is restore the non-prevailing party) as Property under Article 3 and the mutual indemnities set forth in the foregoing subsection (b) in connection with such interpleader action, Articles 8 and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is received10.
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaser, and if a successor escrow agent is not appointed within such fifteen (15) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Urstadt Biddle Properties Inc)
Closing Escrow. The Closing shall take place by means of a so-called “New York-style” escrow (the “Closing Escrow”). On or prior to the Closing Date, Seller and Purchaser acknowledge that shall each enter into a closing escrow agreement with the Escrow Agent undertakes hereunder with respect to perform only such duties as are expressly set forth herein. The Deposit the Closing Escrow in form and any other funds substance reasonably acceptable to Seller, Purchaser and the Escrow Agent (each, a “Closing Escrow Agreement”) pursuant to which (i) all of the documents required to be delivered by Seller and Purchaser pursuant to this Agreement (the “Closing Documents”) shall be deposited with Escrow Agent will be held and disbursed as follows:
(a) Escrow Agent may (i) act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, Agent; (ii) assume the validity and accuracy balance of any statement or assertion contained in such a writing or instrument, the Purchase Price to be paid by Purchaser pursuant to Section 3.4 shall be deposited with Escrow Agent; and (iii) assume that any person purporting at the Closing, the Closing Documents shall be delivered to give any writing Seller and Purchaser (as the case may be) and the Purchase Price and the Xxxxxxx Money shall be disbursed to Seller pursuant to the Closing Escrow Agreement. Immediately prior to the Closing, (x) the Restrictive Covenant shall be recorded in the land records in each State in which the Real Property is located for each Hotel; (y) a restrictive covenant in the form of Exhibit I with respect to Buildings B and C at the Maui Hotel shall be recorded in the land records in the State in which the Maui Real Property is located (the “Maui Hotel Buildings B and C Restrictive Covenant”); and (z) if not already recorded in connection with the provisions hereof has been duly authorized to do so.
(b) Seller and Purchaser agree, jointly and severally, to indemnify and hold harmless Escrow Agent from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and PurchaserSF Partition, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing party.
(c) Escrow Agent XX XXX shall hold and disburse the Deposit in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement of the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursement.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth recorded in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment land records in the interpleader action State in which the SF Real Property is receivedlocated.
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaser, and if a successor escrow agent is not appointed within such fifteen (15) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
Appears in 1 contract
Closing Escrow. Seller and Purchaser acknowledge that Escrow Agent undertakes hereunder to perform only such duties as are expressly set forth herein. The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
(a) Escrow Agent may Unless otherwise provided in Section 2.14 or unless this Agreement is terminated and the transactions contemplated hereby are abandoned pursuant to Section 14.01, the Closing will commence on (i) act the last Business Day of the calendar month in reliance upon any writing which the conditions precedent to the Closing have been satisfied or instrument waived or signature which it, in good faith, believes to be genuine, (ii) assume such other date to which the validity Parties agree in writing (the "Closing Date"), at the office of Gordon & Silver, Ltd., 3960 Howard Hughes Parkway, 9th Floxx, Xxs Vegas, Nevada, 89109, xx xt xxxx other place as the Parties agree in writing, at 9:00 a.m., Nevada time, on the Closing Date and accuracy shall be deemed to have occurred at 11:59 p.m., Nevada time, on the Closing Date (the "Transfer Time"), giving effect to tabulations of any statement or assertion contained in such a writing or instrumentTransferred Assets and Assumed Liabilities allocable to Seller for the period prior to the Transfer Time that will commence at 12:00 a.m. Nevada time, and (iii) assume that any person purporting to give any writing in connection with at the provisions hereof has been duly authorized to do soBusiness location on the day after the Closing Date.
(b) At the Closing, Purchaser will (i) deliver to the Escrow Agent: (x) the Restated Credit Agreement (if Purchaser has not executed and delivered it to the Restated Credit Agreement Agent prior to the Closing); (y) the Restated Credit Facility Security Instruments; and (z) the Restated Credit Facility Notes, all duly and validly executed by Purchaser, and (ii) deliver the Renovation Commitment as required by the Restated Credit Agreement. One half of the Escrow Fees shall be paid by Seller and Purchaser agree, jointly and severally, to indemnify and hold harmless the Escrow Agent from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any the other reasonable expenses, fees or charges half of any character or nature whatsoever, which the Escrow Agent may incur or with which it may Fees shall be threatened solely paid by reason of its acting as escrow agent hereunder, except Purchaser to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing party.
(c) Escrow Agent shall hold At the Closing and disburse the Deposit in accordance simultaneously with the terms of this Agreement. Escrow Agent will not make any disbursement delivery by Purchaser of the Deposit Restated Credit Agreement (except at a Closing pursuant to a fully if not executed Settlement Statement) without giving written notice and delivered to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Restated Credit Agreement Agent prior to the scheduled disbursement will constitute binding acquiescence of such party Closing), Restated Credit Facility Security Instruments and Restated Credit Facility Notes to the disbursementEscrow Agent, (i) Seller will assign and transfer to Purchaser all of the Property and all of Seller's rights, title and interests in, to and under the Transferred Assets as contemplated by Section 2.01(a) by delivery of (A) General Assignments and Bills of Sale substantially in the form of Exhibit D, duly executed by Seller, (B) Intellectual Property Assignments, duly executed by Seller, (C) a grant, bargain and sale deed in proper statutory form for recording and otherwise in form and substance reasonably satisfactory to Purchaser, conveying Seller's title to the Owned Real Property (the "Deed") and (D) subject to Section 2.08, such other instruments of conveyance, assignment and transfer, in form and substance reasonably acceptable to Purchaser, as shall be effective to vest in Purchaser all rights, title and interests in and to the Property and all of Seller's rights, title and interests in and to the Transferred Assets (the instruments referred to in subclauses (A) through (D) of this clause (i) are collectively referred to herein as the "Assignment Instruments"), and (ii) Purchaser will pay to Seller in cash one-half of the cost of the Survey and will assume from Seller the due payment, performance and discharge of the Assumed Liabilities by delivery of (A) an Assumption Agreement substantially in the form of Exhibit E, duly executed by Purchaser, and (B) such other instruments of assumption, in form and substance reasonably acceptable to Seller, as shall be effective to cause Purchaser to assume the Assumed Liabilities as provided in Section 2.02(a) (the instruments referred to in subclauses (A) and (B) of this clause (ii) are collectively referred to herein as the "Assumption Instruments"). Notwithstanding the foregoing provisions of this paragraph (c), the Parties' respective obligations under this Section 2.04 are subject to the provisions of Section 2.08 and, with respect to the Promotional Vehicles, Seller's obligations are subject to the provisions of Section 2.13.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader deliver to resolve such disagreement, but Escrow Agent will Purchaser (if not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth located in the foregoing subsection (bImprovements in locations specifically identified to Purchaser) in connection with such interpleader actionat the Closing all combinations to safes, keys, codes and will be fully protected in suspending all or a part passcards relating to the operation of its activities under this Contract until a final judgment in the interpleader action is receivedTransferred Assets and the Business.
(e) Escrow Agent may consult with counsel Notwithstanding the foregoing provisions of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance this Section 2.04, the Parties' respective obligations to proceed with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be Closing are subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligenceParties' respective termination rights under Section 14.01.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice At the Closing, there shall also be delivered to Seller and Purchaser the certificates and other contracts, documents and instruments required to be delivered under Articles VII and VIII.
(g) Additionally, at the Closing, Seller shall deliver to Purchaser the following documents, each of which shall have been duly executed by Seller and acknowledged (if required by applicable Laws):
(i) subject to Section 2.13, certificates of title for any Vehicles or other Tangible Personal Property that is included in the Transferred Assets, is owned by Seller, and for which such certificates are required;
(ii) an allonge to the Bazaar Note, recognizing that the Bazaar Note has been endorsed and delivered to Purchaser, as payee thereunder, pursuant to this Agreement and the Plan;
(iii) such agreements, affidavits or other documents as may be reasonably required by the Title Company from Seller to issue the Title Policy;
(iv) any real estate transfer tax declaration or similar documents required under applicable Laws in connection with the conveyance of the Real Property;
(v) if a successor escrow agent and solely to the extent that by not later than the 65th day prior to the then-scheduled Closing Date, Seller has been advised that Purchaser is required to furnish to the Restated Credit Agreement Agent estoppel certificates from tenants under the Tenant Leases or from counter-parties under any Operating Agreements ("Estoppel Certificates"), Estoppel Certificates in the forms prescribed by the applicable Tenant Leases or Operating Agreements or, if no such forms are prescribed therein, in the form set forth in Exhibit H;
(vi) if and solely to the extent that by not appointed within later than the 65th day prior to the then-scheduled Closing Date, Seller has been advised that Purchaser is required to furnish to the Restated Credit Agreement Agent subordination agreements from any tenants under the Tenant Leases, subordination agreements meeting such fifteen requirements under the Restated Credit Agreement; and
(15vii) day periodan assignment and assumption of the Construction, Escrow Agent may petition a court Operation and Reciprocal Easement Agreement, dated as of competent jurisdiction February 26, 1998, among Seller, Bazaar and Aladdin Music Holdings, LLC, as amended by that certain Amendment and Ratification of Construction, Operation and Reciprocal Easement Agreement, dated as of November 20, 2000, between Seller and Bazaar and as amended by that certain Second Amendment of Construction, Operation and Reciprocal Easement Agreement, dated as of February __, 2003, between Seller and Bazaar (as amended, the "REA"), in the form of Exhibit K, assigning Seller's rights under the REA to name a successorPurchaser on the terms set forth therein (which need not be signed, acknowledged or consented to by any other party to the REA).
Appears in 1 contract
Closing Escrow. Purchaser and Seller acknowledge and Purchaser acknowledge agree that Escrow Agent undertakes hereunder to perform only such duties as are expressly set forth herein. The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
(a) Escrow Agent as of the Closing Date, certain tenants named on Exhibit “D” attached hereto (“Named Tenants”) may not have a finalized lease or be open and operating (the “Named Tenant Vacant Premises”). At Closing, Purchaser, Seller and the Title Company will enter into a mutually (and reasonably) acceptable escrow agreement for a term of one year for the Named Tenants as set forth on Exhibit “D”, pursuant to which Seller will deposit with the Title Company the base rent and triple net expenses, lease commissions and tenant improvement allowance, all as more particularly described on Exhibit “D”. Such escrow agreement shall provide, among other things, that, so long as the applicable Named Tenant is not open and operating within the applicable Named Tenant Vacant Premises (i) act the applicable monthly Rent shall be disbursed to Purchaser monthly in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, arrears; and (ii) assume the validity leasing commissions and accuracy tenant improvements allowance with respect to any such Named Tenant’s lease shall be disbursed to Purchaser at least two business days preceding the date on which same are due and payable. With respect to any lease for a Named Tenant for the applicable named Tenant Vacant Premises, upon the rent commencement date (and expiration of any statement or assertion contained in free rent period) for the Leases with such a writing or instrumentNamed Tenants for such Named Tenant Vacant Premises, and payment of the applicable leasing commission and tenant improvements, any amounts escrowed by Seller only for such lease with such Named Tenant remaining undisbursed shall be disbursed to Seller (iii) assume that and the escrow shall remain in full force and effect for the remaining Named Tenants. The foregoing escrow agreement shall terminate and the Title Company shall disburse to Seller any person purporting sums remaining on deposit shall be paid to give Seller; provided if for any writing Named Tenant Vacant Premises, the conditions in connection with the provisions hereof has lease for payment of the tenant improvement allowance have not been duly authorized to do so.
(b) Seller satisfied by the one year anniversary of the escrow and Purchaser agree, jointly as a result the applicable tenant improvement allowance and severally, to indemnify and hold harmless Escrow Agent from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except leasing commission related to the extent resulting from Escrow Agent’s gross negligencelease for the Named Tenant have not been paid to the tenant, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and on the cost termination of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaserthe escrow agreement, the responsibility amounts escrowed for indemnifying Escrow Agent the leasing commissions and tenant improvement allowances for such expenses will belong solely Named Tenant Vacant Premises that have not been paid to the non-prevailing party.
(c) Escrow Agent shall hold and disburse the Deposit in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement of the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursement.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is received.
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel Named Tenant shall be shared equally by Seller and paid to Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaser, and if a successor escrow agent is not appointed within such fifteen (15) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
Appears in 1 contract
Samples: Real Estate Purchase Contract (Nuveen Global Cities REIT, Inc.)
Closing Escrow. Seller and Purchaser acknowledge that Escrow Agent undertakes hereunder to perform only such duties as are expressly set forth herein. The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
(a) Escrow Agent may The closing of the transaction contemplated by this Agreement ("Closing") shall occur at the Chicago, Illinois office of the Title Company (as hereinafter defined), on the date which is 10-business days following the date of satisfaction of the conditions to Closing described by this Agreement (or waiver thereof by Buyer), including the Tenant Occupancy Conditions (as hereinafter defined) as to tenancies other than the Earnout Space (as hereinafter defined). If the Tenant Occupancy Conditions or any other conditions to Closing described by this Agreement for the benefit of Buyer are not satisfied on or prior to June 1, 2014, Buyer shall have the option to either: (i) act in reliance upon any writing terminate this Agreement by written notice to Seller and Escrow Agent (as hereinafter defined), whereupon the Xxxxxxx Money (as hereinafter defined) shall be promptly paid by Escrow Agent to Buyer, or instrument or signature which it, in good faith, believes to be genuine, (ii) assume waive the validity unsatisfied condition or conditions and accuracy close upon the acquisition of any statement or assertion contained in such the Property on a writing or instrumentdate which is no later than June 30, and (iii) assume that any person purporting to give any writing in connection with the provisions hereof has been duly authorized to do so2014.
(b) Each of Seller and Purchaser agreeBuyer agrees to comply with the requirements of the Title Company relative to closing the transaction contemplated by this Agreement as a so-called "NY Style" closing. The cost of the escrow, jointly and severally, to indemnify and hold harmless Escrow Agent from and against any and all actual claims"NY Style" closing fees, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may shall be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation divided equally between Seller and PurchaserBuyer. Upon the creation of such escrow, the responsibility for indemnifying Escrow Agent for such expenses will belong solely anything herein to the non-prevailing partycontrary notwithstanding, payment of the Purchase Price (as hereinafter defined) and delivery of the Deed (as hereinafter defined) shall be made through the escrow and the Xxxxxxx Money (as hereinafter defined) shall be deposited into the escrow.
(c) Escrow Agent Buyer and Seller hereby agree, if requested by Seller, to re-cast the form of this Agreement as an agreement to contribute the Property to a joint venture between Seller and Buyer on the terms set forth upon Exhibit “G,” attached (collectively, the “JV Documentation”) in the event the appraisal to-be-prepared on behalf of Buyer establishes a value for the Land which is less than $3,200,000. If Seller and Buyer are unable to agree upon the JV Documentation, this Agreement shall hold remain in full force and disburse effect and the Deposit parties shall thereafter proceed in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement Agreement without regard to the terms of the Deposit (except at a Closing pursuant to a fully executed Settlement Statement) without giving written notice to the party which will not receive the disbursement at least three (3) Business Days in advance of the scheduled disbursement. The failure of the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursement.
(d) If there is any disagreement about the interpretation first sentence of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or Purchaser, shall file an action in interpleader to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is the non-prevailing party) as set forth in the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is receivedSection 2(c).
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon fifteen (15) days’ written notice to Seller and Purchaser, and if a successor escrow agent is not appointed within such fifteen (15) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Real Estate Income Trust, Inc.)
Closing Escrow. Seller and Purchaser acknowledge that At the Closing, Buyer shall deposit with the Escrow Agent undertakes hereunder the sum of Ten Million dollars ($10,000,000) of the Purchase Price (the "Indemnity Fund") pursuant to perform only the Closing Escrow Agreement. One-half of the Indemnity Fund, less the amount of all claims theretofore paid to Buyer from such duties Indemnity Fund and the amount of all unresolved claims theretofore made by Buyer for indemnification pursuant to Section 15.1 (provided that the aggregate amount of such of the foregoing claims as are expressly set forth based upon breaches of Seller's representations and warranties contained herein, other than any claims based upon breaches of any Title Asset Representation or Title Interest Representation, shall exceed the Basket), shall be paid to Seller under the Closing Escrow Agreement at the close of business on the first business day after nine (9) months from the Closing Date. The Deposit and any other funds deposited with Escrow Agent will be held and disbursed as follows:
(a) Escrow Agent may (i) act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and (iii) assume that any person purporting to give any writing in connection with the provisions hereof has been duly authorized to do so.
(b) Seller and Purchaser agree, jointly and severally, to indemnify and hold harmless Escrow Agent from and against any and all actual claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges of any character or nature whatsoever, which Escrow Agent may incur or with which it may be threatened solely by reason of its acting as escrow agent hereunder, except to the extent resulting from Escrow Agent’s gross negligence, fraud or intentional misconduct; and in connection therewith, to indemnify Escrow Agent against any and all reasonable expenses, including reasonable attorneys’ fees and the cost of defending any action, suit or proceedings or resisting any claim; provided, however, that if such expenses are incurred by Escrow Agent in connection with litigation between Seller and Purchaser, the responsibility for indemnifying Escrow Agent for such expenses will belong solely to the non-prevailing party.
(c) Escrow Agent shall hold and disburse the Deposit in accordance with the terms of this Agreement. Escrow Agent will not make any disbursement remainder of the Deposit (except at a Closing Indemnity Fund, less the amount of all unresolved claims theretofore made by Buyer for indemnification pursuant to a fully executed Settlement Statement) without giving written notice to Section 15.1 (provided that the party which will not receive the disbursement at least three (3) Business Days in advance aggregate amount of such of the scheduled disbursement. The failure foregoing claims as are based upon breaches of Seller's representations and warranties contained herein shall exceed the party not receiving the disbursement to object to the disbursement by written notice to the other party and to Escrow Agent prior to the scheduled disbursement will constitute binding acquiescence of such party to the disbursement.
(d) If there is any disagreement about the interpretation of this Contract, or about the rights and obligations, or the propriety, of any action contemplated by Escrow Agent hereunder, Escrow Agent may, and upon the request of either Seller or PurchaserBasket), shall file an action in interpleader be paid to resolve such disagreement, but Escrow Agent will not take any other action unless both Seller and Purchaser agree in writing to such action. Escrow Agent will be indemnified (by Seller or Purchaser, whichever is at the non-prevailing party) as set forth in close of business on the foregoing subsection (b) in connection with such interpleader action, and will be fully protected in suspending all or a part of its activities under this Contract until a final judgment in the interpleader action is received.
(e) Escrow Agent may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The costs of such counsel shall be shared equally by Seller and Purchaser, and the selection of such counsel shall be subject to the reasonable prior approval of Seller and Purchaser. Escrow Agent otherwise will not be liable for any mistakes of fact or error of judgment, or for any acts or omissions of any kind unless caused by its fraud willful misconduct or gross negligence.
(f) Escrow Agent may resign upon first business day after fifteen (15) days’ written notice months from the Closing Date. Seller expressly agrees that any post-Closing Date adjustments required to be made to the Purchase Price pursuant to Section 3.3 and payable to Buyer shall be paid directly by Seller to Buyer in immediately available funds and Purchasershall not decrease the amount of the Indemnity Fund; provided that Buyer may, and if at its option, make a successor escrow agent is claim against the Indemnity Fund for such Purchase Price adjustment amounts, which claim shall not appointed within such fifteen (15) day period, Escrow Agent be subject to either the Basket or any other limitation as to the maximum amount thereof which Buyer may petition a court seek or be entitled to indemnification under Section 15 or any other provision of competent jurisdiction to name a successorthis Agreement.
Appears in 1 contract
Samples: Membership Purchase Agreement (Charter Communications Holdings Capital Corp)
