Common use of Escrow of Deposit Clause in Contracts

Escrow of Deposit. 13.01. The Deposit shall be held in escrow by Escrow Agent in an interest bearing account until disbursed as herein provided. Any interest accrued on the Deposit shall be paid to whichever party is entitled to the Deposit in accordance with the provisions of this Agreement. The Deposit shall be held and disbursed by Escrow Agent in the following manner: (a) to the Sellers at the Closing upon consummation of the Closing; or (b) to the Sellers upon receipt by Escrow Agent of written demand therefor, stating that Purchaser has defaulted in the performance of Purchaser’s obligations under this Agreement and the facts and circumstances underlying such default or that the Sellers are otherwise entitled to the Deposit pursuant to the terms of this Agreement and certifying the basis for its entitlement under this Agreement; provided, however, that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Purchaser, nor thereafter, if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of Section 13.02; or (c) to Purchaser upon receipt of written demand therefor, stating that either a Seller shall have defaulted in the performance of it’s obligations under this Agreement and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement and certifying the basis for its entitlement under this Agreement; provided, however, that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to the Sellers, nor thereafter if Escrow Agent shall have received written notice of objection from the Sellers in accordance with the provisions of Section 13.02. 13.02. Upon receipt of written demand for the Deposit by Purchaser or the Sellers pursuant to clause (b) or (c) of Section 13.01, Escrow Agent shall promptly send a copy thereof to the other party. The other party shall have the right to object to the delivery of the Deposit by sending written notice of such objection to Escrow Agent within the greater of five (5) days or three (3) business days after Escrow Agent delivers a copy of the written demand to the objecting party but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice, Escrow Agent shall promptly send a copy thereof to the party who made the written demand. 13.03. In the event of any dispute between the parties regarding the Deposit, Escrow Agent shall disregard all instructions received and at its option either (i) hold the Deposit until the dispute is mutually resolved and Escrow Agent is advised of fact in writing by both the Sellers and Purchaser, or Escrow Agent is otherwise instructed by a final non-appealable judgment of a court of competent jurisdiction, or (ii) deposit the Deposit into a court of competent jurisdiction (whereupon Escrow Agent shall be released and relieved of any and all liability and obligations hereunder from and after the date of such deposit). 13.04. In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the parties hereto, or instructions which conflict with any of the provisions of this Agreement, Escrow Agent shall be entitled (but not obligated) to refrain from taking any action other than to keep safely the Deposit until Escrow Agent shall be instructed otherwise in writing signed by both the Sellers and Purchaser, or by final judgment of a court of competent jurisdiction. 13.05. Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any modification of this Article 13 shall be signed by Escrow Agent, Purchaser and the Sellers. 13.06. The Sellers and Purchaser shall jointly and severally hold Escrow Agent harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim of liability or participating in any legal proceeding. Escrow Agent may consult with counsel of its choice, and shall 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. 13.07. Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date when such resignation shall take effect; provided, however, that (i) prior to such resignation a substitute escrow agent is approved in writing by the Sellers and Purchaser, which approval shall not be unreasonably withheld or delayed, or (ii) Escrow Agent shall deposit the Deposit with a court of competent jurisdiction. After such resignation, Escrow Agent shall have no further duties or liability hereunder. 13.08. Purchaser and the Sellers, together, shall have the right to terminate the appointment of Escrow Agent hereunder by giving to it notice of such termination, specifying the date upon which such termination shall take effect and designating a replacement escrow agent, who shall sign a counterpart of this Agreement. Upon demand of such successor escrow agent, the Deposit shall be turned over and delivered to such successor escrow agent, who shall thereupon be bound by all of the provisions hereof. 13.09. The Sellers and Purchaser shall each be responsible for one-half (1/2) of any reimbursement to Escrow Agent of any out-of-pocket expenses, disbursements and advances (including reasonable attorneys’ fees) incurred or made by Escrow Agent in connection with the carrying out of its duties hereunder. 13.10. Escrow Agent’s agreements and obligations hereunder shall terminate and Escrow Agent shall be discharged from further duties and obligations hereunder upon final payment of the Deposit in accordance with the terms of this Agreement.

Escrow of Deposit. 13.01. 3.1 The Deposit has this day been deposited with and shall be held in escrow by Xxxxx, Inc. (the “ Agent”). The parties and Agent agree that the Deposit, together with all interest earned thereon (the “Escrow Agent Funds”), shall be applied as follows: 3.1.1 If Closing is held, the Escrow Funds shall be paid over to Seller and shall be credited to the Purchase Price. 3.1.2 If Closing is not held by reason of Buyer’s default, the Escrow Funds shall be paid over to Seller and shall be retained by Seller as provided for in Paragraph 15.1 below. 3.1.3 If Closing is not held by reason of Seller’s default, the Escrow Funds shall be paid over to Buyer for use and application by Buyer as provided for in Paragraph 15.2 below. 3.1.4 If Closing is not held by reason of a failure of condition and not by reason of a default by Seller or Buyer hereunder, the Escrow Funds shall be paid over to Buyer, neither party shall have any further liability or obligation hereunder, and this Agreement shall terminate. 3.2 The Escrow Funds shall be held in an interest bearing money-market type account until disbursed with a federally insured national or state-chartered bank, savings bank, or savings and loan association. 3.3 Agent and its stockholders and employees are acting as herein providedagents only, and will in no case be held liable either jointly or severally to either party for the performance of any term or covenant of this Agreement or for damages for the nonperformance hereof, nor shall Agent be required or obligated to determine any questions of fact or law. Any interest accrued on the Deposit Agent’s only responsibility hereunder shall be paid for the safekeeping of the Escrow Funds and the full and faithful performance by the Agent of the duties imposed by this Paragraph 3. 3.4 Agent shall be obligated to whichever party is entitled to disburse the Deposit in accordance with proceeds of the provisions Escrow Funds at Closing or upon any cancellation or termination of this Agreement. The Deposit shall be held and disbursed by Escrow , only upon the written instructions of both parties, should Agent in the following manner: (a) to the Sellers at the Closing upon consummation of the Closingits sole discretion request such instructions; or (b) to the Sellers upon receipt by Escrow Agent of written demand therefor, stating that Purchaser has defaulted and in the performance of Purchaser’s obligations under this Agreement and the facts and circumstances underlying such default or that the Sellers are otherwise entitled to the Deposit pursuant to the terms of this Agreement and certifying the basis for its entitlement under this Agreement; provided, however, that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy absence of such demand to Purchaser, nor thereafter, if Escrow Agent shall have received written notice of objection from Purchaser instructions or in accordance with the provisions of Section 13.02; or (c) to Purchaser upon receipt of written demand therefor, stating that either a Seller shall have defaulted in the performance of it’s obligations under this Agreement and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement and certifying the basis for its entitlement under this Agreement; provided, however, that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to the Sellers, nor thereafter if Escrow Agent shall have received written notice of objection from the Sellers in accordance with the provisions of Section 13.02. 13.02. Upon receipt of written demand for the Deposit by Purchaser or the Sellers pursuant to clause (b) or (c) of Section 13.01, Escrow Agent shall promptly send a copy thereof to the other party. The other party shall have the right to object to the delivery of the Deposit by sending written notice of such objection to Escrow Agent within the greater of five (5) days or three (3) business days after Escrow Agent delivers a copy of the written demand to the objecting party but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice, Escrow Agent shall promptly send a copy thereof to the party who made the written demand. 13.03. In the event of any dispute between the parties regarding the Depositdispute, Escrow Agent shall disregard all instructions received and at its option either (i) hold the Deposit until the dispute is mutually resolved and Escrow Agent is advised of fact in writing by both the Sellers and Purchaser, or Escrow Agent is otherwise instructed by a final non-appealable judgment of a court of competent jurisdiction, or (ii) deposit the Deposit into a court of competent jurisdiction (whereupon Escrow Agent shall be released and relieved of any and all liability and obligations hereunder from and after the date of such deposit). 13.04. In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructionsis hereby authorized, claims or demands from the parties hereto, or instructions which conflict with any of the provisions of this Agreement, Escrow Agent shall be entitled (but not obligated) , to refrain from taking pay the entire amount of the Escrow Funds into court, and any action other than expenses to keep safely the Deposit until Escrow Agent for so doing shall be instructed otherwise in writing signed by both the Sellers and Purchaser, or by final judgment of a court of competent jurisdiction. 13.05. Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties, provided that any modification of this Article 13 shall be signed by Escrow Agent, Purchaser and the Sellers. 13.06. The Sellers and Purchaser shall jointly and severally hold Escrow Agent harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising payable out of or in connection with its entering into this Agreement and the carrying out of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim of liability or participating in any legal proceeding. Escrow Agent may consult with counsel of its choice, and shall 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 counselFunds. 13.07. Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date when such resignation shall take effect; provided, however, that (i) prior to such resignation a substitute escrow agent is approved in writing by the Sellers and Purchaser, which approval shall not be unreasonably withheld or delayed, or (ii) Escrow Agent shall deposit the Deposit with a court of competent jurisdiction. After such resignation, Escrow Agent shall have no further duties or liability hereunder. 13.08. Purchaser and the Sellers, together, shall have the right to terminate the appointment of Escrow Agent hereunder by giving to it notice of such termination, specifying the date upon which such termination shall take effect and designating a replacement escrow agent, who shall sign a counterpart of this Agreement. Upon demand of such successor escrow agent, the Deposit shall be turned over and delivered to such successor escrow agent, who shall thereupon be bound by all of the provisions hereof. 13.09. The Sellers and Purchaser shall each be responsible for one-half (1/2) of any reimbursement to Escrow Agent of any out-of-pocket expenses, disbursements and advances (including reasonable attorneys’ fees) incurred or made by Escrow Agent in connection with the carrying out of its duties hereunder. 13.10. Escrow Agent’s agreements and obligations hereunder shall terminate and Escrow Agent shall be discharged from further duties and obligations hereunder upon final payment of the Deposit in accordance with the terms of this Agreement.

Escrow of Deposit. 13.01(a) First Escrowee shall hold the Deposit until the sooner to occur of (i) the date upon which Purchaser validly terminates this Agreement in accordance with the provisions of Section 4.1 hereof and (ii) the Due Diligence Expiration Date. The Promptly following its receipt of the Deposit, First Escrowee shall furnish Seller's counsel with written confirmation by telecopy of such receipt. If Purchaser validly terminates this Agreement in accordance with the provisions of Section 4.1 hereof, First Escrowee shall promptly thereafter refund the Deposit and all interest thereon to Purchaser. If Purchaser waives its due diligence contingency set forth in Section 4.1 hereof, Purchaser shall cause First Escrowee, on or before 5:00 P.M. on the Due Diligence Expiration Date (time being of the essence), to deliver the Deposit and all interest thereon to Second Escrowee by wire transfer of immediately available funds to the account of Second Escrowee set forth in Exhibit A-1 annexed hereto. If Purchaser fails to cause First Escrowee to deliver the Deposit to Second Escrowee in the time and manner hereinabove set forth, then, notwithstanding any waiver by Purchaser of its due diligence contingency set forth in Section 4.1 hereof, this Agreement shall be held in escrow by Escrow Agent in an interest bearing account until disbursed deemed terminated effective as herein provided. Any interest accrued of 5:00 P.M. on the Due Diligence Expiration Date, whereupon (i) First Escrowee shall cause the Deposit to be refunded to Purchaser and (ii) neither party hereto shall be paid have any further obligation to whichever party is entitled the other hereunder, with the exception of those obligations which expressly survive the termination of this Agreement. (b) Upon First Escrowee's delivery to Second Escrowee of the Deposit in accordance with the provisions of this Agreement. The Section 3.2(a) hereof, Second Escrowee shall hold the Deposit shall be held and disbursed by Escrow Agent in the following manner: (a) to the Sellers at until the Closing upon consummation of the Closing; or (b) to the Sellers upon receipt by Escrow Agent of written demand therefor, stating that Purchaser has defaulted in the performance of Purchaser’s obligations under this Agreement and the facts and circumstances underlying such default or that the Sellers are otherwise entitled to the Deposit pursuant to the terms sooner termination of this Agreement and certifying the basis for its entitlement under this Agreement; provided, however, that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Purchaser, nor thereafter, if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of Section 13.02; orhereinafter set forth: (c) to Purchaser upon receipt of written demand therefor, stating that either a Seller shall have defaulted in the performance of it’s obligations under this Agreement and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement and certifying the basis for its entitlement under this Agreement; provided, however, that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to the Sellers, nor thereafter if Escrow Agent shall have received written notice of objection from the Sellers in accordance with the provisions of Section 13.02. 13.02. Upon receipt of written demand for the Deposit by Purchaser or the Sellers pursuant to clause (b) or (c) of Section 13.01, Escrow Agent shall promptly send a copy thereof to the other party. The other party shall have the right to object to the delivery of the Deposit by sending written notice of such objection to Escrow Agent within the greater of five (5) days or three (3) business days after Escrow Agent delivers a copy of the written demand to the objecting party but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice, Escrow Agent shall promptly send a copy thereof to the party who made the written demand. 13.03. In the event of any dispute between the parties regarding the Deposit, Escrow Agent shall disregard all instructions received and at its option either (i) At the Closing, Second Escrowee shall pay the Deposit to Seller; and (ii) If for any reason the Closing does not occur, Second Escrowee shall continue to hold the Deposit until the dispute is mutually resolved and Escrow Agent is advised of fact in writing otherwise directed by both the Sellers and Purchaser, or Escrow Agent is otherwise instructed by a final non-appealable judgment of a court of competent jurisdiction, or (ii) deposit the Deposit into a court of competent jurisdiction (whereupon Escrow Agent shall be released and relieved of any and all liability and obligations hereunder from and after the date of such deposit). 13.04. In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands joint written instructions from the parties hereto, to this Agreement or instructions which conflict with any of the provisions of this Agreement, Escrow Agent shall be entitled (but not obligated) to refrain from taking any action other than to keep safely the Deposit until Escrow Agent shall be instructed otherwise in writing signed by both the Sellers and Purchaser, or by a final judgment of a court of competent jurisdiction. Second Escrowee, however, shall have the right at any time to deposit the Deposit with the clerk of any federal or state court sitting in the Commonwealth of Pennsylvania. Second Escrowee shall give written notice of such deposit to Seller and Purchaser. Upon such deposit, Second Escrowee shall be relieved and discharged of all further obligations and responsibilities hereunder. 13.05. Escrow Agent may rely upon(c) Interest on the Deposit shall be paid to the party entitled to the Deposit, as and when such party becomes entitled to the Deposit, and the party receiving such interest shall pay any income tax thereon. For purposes thereof, the tax identification numbers of the parties are as follows: 00-0000000 (Seller); and (Purchaser). (d) The parties acknowledge that Escrowee is acting solely as a stakeholder at their request and for their convenience, that Escrowee shall not be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it deemed to be genuine and to have been signed or presented by the proper party or agent of either of the parties, provided and that Escrowee shall not be liable to either of the parties for any modification act or omission on its part unless taken or suffered in bad faith, in willful disregard of this Article 13 shall be signed by Escrow Agent, Purchaser and the Sellers. 13.06Agreement or involving gross negligence. The Sellers Seller and Purchaser shall jointly and severally indemnify and hold Escrow Agent Escrowee harmless from and against any lossall costs, damageclaims and expenses, liability or expense including reasonable attorneys' fees, incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in connection with its entering into this Agreement and the carrying out performance of its Escrowee's duties hereunder, including the reasonable costs and expenses of defending itself against any claim of liability except with respect to actions or participating in any legal proceeding. Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for any action omissions taken or suffered by it hereunder Escrowee in good faith and bad faith, in accordance with willful disregard of this Agreement or involving gross negligence on the opinion part of such counselEscrowee. 13.07. Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of such resignation specifying a date when such resignation (e) Escrowee shall take effect; provided, however, that (i) prior to such resignation a substitute escrow agent is approved in writing by the Sellers and Purchaser, which approval shall not be unreasonably withheld or delayed, or (ii) Escrow Agent shall deposit cause the Deposit with a court of competent jurisdiction. After to be maintained and invested in an interest-bearing money market account or such resignation, Escrow Agent shall have no further duties other investment instrument or liability hereunderaccount designated by Purchaser and reasonably approved by Seller. 13.08. Purchaser and the Sellers, together, shall have the right to terminate the appointment of Escrow Agent hereunder by giving to it notice of such termination, specifying the date upon which such termination shall take effect and designating a replacement escrow agent, who shall sign a counterpart of this Agreement. (f) Upon demand of such successor escrow agent, the Deposit shall be turned over and delivered to such successor escrow agent, who shall thereupon be bound by all of the provisions hereof. 13.09. The Sellers and Purchaser shall each be responsible for one-half (1/2) of any reimbursement to Escrow Agent of any out-of-pocket expenses, disbursements and advances (including reasonable attorneys’ fees) incurred or made by Escrow Agent in connection with the carrying out of its duties hereunder. 13.10. Escrow Agent’s agreements and obligations hereunder shall terminate and Escrow Agent shall be discharged from further duties and obligations hereunder upon final payment First Escrowee's delivery of the Deposit in accordance with the terms provisions of Section 3.2(a) hereof, First Escrowee shall have no further obligation with regard to the escrow or this Agreement. Upon Second Escrowee's delivery of the Deposit in accordance with the provisions of Section 3.2(b) hereof, Second Escrowee shall have no further obligation with regard to the Escrow and this Agreement. (g) Escrowee shall not be bound by any modification to this Section 3.2 unless Escrowee shall have agreed to such modification in writing. Escrowee shall be entitled to rely or act upon any notice, instrument or document believed by Escrowee to be genuine and to be executed and delivered by the proper person, and shall have no obligation to verify any statements contained in any notice, instrument or document or the accuracy or due authorization of the execution of any notice, instrument or document. (h) First Escrowee and Second Escrowee have acknowledged their agreement to the foregoing provisions of this Section 3.2 by signing in the places indicated on the signature page of this Agreement.